Gerharter v. Mitchellhill Seed Co.

• Decision Date: 01 December 1941
• Docket Number: No. 19970.,19970.
• Parties: GERHARTER v. MITCHELLHILL SEED CO.
• Court: Missouri Court of Appeals

157 S.W.2d 577

GERHARTER v. MITCHELLHILL SEED CO.

No. 19970.

Kansas City Court of Appeals. Missouri.

December 1, 1941.

Rehearing Denied January 5, 1942.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Action by Arthur J. Gerharter against the Mitchellhill Seed Company for damages for alleged failure of defendant to give to plaintiff a proper service letter upon plaintiff's discharge from employment of the defendant. From an adverse judgment, defendant appeals.

Affirmed.

Brown, Douglas & Brown, of St. Joseph, for appellant.

O. R. Newcomer and Lewis F. Randolph, both of St. Joseph, for respondent.

SPERRY, Commissioner.

Plaintiff, Arthur J. Gerharter, a former employee of defendant, Mitchellhill Seed Company, a corporation, sued defendant for its alleged failure to give him a service letter after his discharge. The jury returned a verdict in favor of plaintiff and the court entered judgment thereon in the sum of $1 for actual damages, and $3,000 for punitive damages. Defendant's motion for new trial was overruled and it has appealed.

The evidence tended to prove that defendant was engaged in the business of wholesale buying and selling of blue grass, alfalfa, and other seeds; that it employed from 13 to 25 men and women through the year immediately prior to plaintiff's discharge; that plaintiff entered defendant's employ during the month of March, 1935, and remained in its employ constantly, without lay offs, from that date until his discharge on September 21, 1938; that his work consisted of drying and threshing blue grass seed, of operating a sacking machine, which required some skill, and of doing other work around the plant; and that his services were satisfactory. There was further evidence to the effect that some $800 worth of alfalfa seed was stolen from defendant's plant at some time prior to September 21, 1938; that defendant called in various employees, including plaintiff, and questioned them as to their knowledge of the theft of the seed; that defendant then had, in the operating department, some 18 employees; that on September 21 defendant and several other employees were laid off; and that on September 23 defendant's plant foreman and all other employees in its operating department were laid off. On September 26 defendant's foreman was rehired and given full authority to "hire and fire" whom he wished in the operating department. Eventually, and within a short time, all former employees excepting four, of whom plaintiff was one, were rehired. There was evidence from which it may be inferred that the reason for discharging all of the employees in this department, including plaintiff, was that defendant hoped thereby to learn who stole the seed, and to improve the efficiency and discipline of its employees by giving its foreman full power in hiring and firing and, thereby, make said foreman responsible, in future, for the safe keeping of its property.

Plaintiff testified that he attempted to obtain reemployment by defendant and, concluding that he would not be hired, requested from it a "letter of recommendation;" that, thereafter, he drove to a point near defendant's office and sent his son in to get the letter; that a sealed letter was brought out and laid on the seat of plaintiff's car, beside plaintiff; that defendant's manager, Mangelsdorf, came out to the car and engaged him in conversation; that plaintiff demanded payment for some overtime, which he claimed was due him, and that Mangelsdorf became angry and said: "I will give you a letter. You are no damn good. I will send you a letter;" that Mangelsdorf took the letter from the seat of the car and went away; that a few days later plaintiff received a letter through the mail; said letter, written on defendant's stationery, is, in words and figures, as follows:

                                    "St. Joseph, Missouri
                                         "October 4, 1938
                

"To Whom It May Concern:

"This is to certify that according to our records, Mr. Arthur J. Gerharter was in our employ from June 20, 1935 to September 21, 1938.

"His services were satisfactory, but no longer required.

                    "Yours very truly
                "(Signed)  (F. H. Mangelsdorf)
                "FHM:BA    F. H. Mangelsdorf, President."
                

In his direct testimony plaintiff stated that he requested of defendant a "service letter," but on cross examination he stated, several times, that he requested a "letter of recommendation." According to plaintiff's evidence the above letter is all that he ever received from defendant.

Defendant's president and general manager, Mangelsdorf, testified that plaintiff's son came in to get a letter which he had prepared at the request of plaintiff; that he, Mangelsdorf, went to plaintiff's car to try to reason with him about his attitude toward plaintiff; "He wasn't feeling very good and he became abusive and he mentioned that if that wasn't a proper service letter that he would see that he got the proper service letter and was going to sue us for overtime, and I said, `Well, Art, if that is the way you feel about it, may be we had better see where our legal rights stand,' and I picked up the letter and went back to the office;" that he called his attorney by telephone and sought and obtained advice as to the form and substance of a service letter which a corporation is required to give to its discharged employees; that he dictated and caused to be mailed to plaintiff the letter above quoted; and that he intended to write a proper service letter, such as is required under the statute.

Defendant urges that plaintiff failed to make out a submissible case because there is no substantial evidence tending to prove that plaintiff ever requested a service letter. Defendant contends that plaintiff, according to his own testimony, asked for a "letter of recommendation;" and that he must be bound thereby. Plaintiff's petition states a cause of action based on defendant's failure to furnish him a proper service letter. He testified, on direct examination, that he requested a service letter. It is true that on cross examination he repeatedly said that he asked for a letter of recommendation; but he did not testify that he did not ask for a service letter. His testimony may indicate confusion on his part, at one time or the other. Defendant's president and manager testified that plaintiff threatened to sue defendant, and that he stated that the letter which had been delivered to him had better be a good service letter. Mangelsdorf understood that what plaintiff wanted was a service letter, as distinguished from a letter of recommendation, which latter type of letter had already been delivered. He took possession of and destroyed the letter of recommendation and sought legal advice as to the form and substance of a service letter. Defendant contends that the letter was written in an effort to comply with the service letter statute. If the evidence of plaintiff which is favorable to his theory, aided by that of defendant which is not in conflict with plaintiff's theory and which is favorable to plaintiff's case, together with all reasonable inferences to be drawn therefrom favoring plaintiff, is considered as a whole, we think this point must be ruled against defendant. Hall v. St. Louis-San Francisco Ry. Co., 224 Mo.App. 431, 28 S.W. 2d 687, loc. cit. 690. In its answer defendant alleges: "defendant further admits that upon request of the plaintiff for a service letter it did, * * *, write and cause to be delivered a letter * * * copied in plaintiff's petition." Elsewhere in the answer the letter written is referred to as a service letter. We think defendant is bound by its pleadings and its evidence, and is estopped from denying that a service letter was requested. Soule v. St. Joseph Ry. Light, Heat & Power Co., 220 Mo.App. 497, loc. cit. 500, 274 S.W. 517. Plaintiff's own evidence did not disprove his claim so as to destroy his case under the rule announced in Peoples Finance Corporation v. Buckner, 344 Mo. 347, 126 S. W.2d 301, loc. cit. 303.

While defendant strenuously argues that plaintiff did not request a service letter, it does not urge, except by vague suggestion, that the letter furnished him is one such as is defined by Section 5064, R.S.1939, Mo.St.Ann. § 4588, page 2026. We think the letter in evidence fails to meet the requirements of the statute. Walker v. St. Joseph Belt Ry. Co., Mo. App., 102 S.W.2d 718, loc. cit. 723; Cheek v. Prudential Insurance Company, Mo.Sup., 192 S.W. 387, loc. cit. 389; Van Sickle v. Katz Drug Co., Mo.App., 151 S.W.2d 489, loc. cit. 494. We shall not discuss our reasons for reaching this conclusion because defendant does not urge, under its argument on the demurrer, that the letter is, in fact, a good service letter.

Defendant next contends that instruction numbered one, given at the request of plaintiff, is erroneous. Said instruction is, in words and figures, as follows:

"Instruction No. 1. The court instructs the jury that if you believe and find from the evidence in this case that the defendant is, and was, at all times mentioned in the evidence, a corporation doing business in this state, and that on and prior to the 21st day of September 1938, plaintiff was an employee of said corporation and had been in the service of said corporation for at least ninety (90) days immediately prior thereto, then you are instructed that upon the discharge or dismissal of plaintiff from the service of the defendant corporation, it became, and was, the duty of the superintendent or manager of said corporation, upon the request of plaintiff to defendant corporation to issue to plaintiff a letter duly signed by the superintendent or manager of said...