Hatton v. Carder Wholesale Grocery Co.
| Decision Date | 05 May 1941 |
| Parties | DALLAS M. HATTON, RESPONDENT, v. CARDER WHOLESALE GROCERY COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Buchanan County.--Hon. Emmett J Crouse, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Groves & Watkins and O. W. Watkins, Jr. for appellant.
(1) (a) An instruction which assumes controverted facts constitutes reversible error. Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Weddle v. Tarkio Electric & Water Co. (Mo. App.), 230 S.W. 386, 390. (b) An instruction purporting to cover the entire case and directing a verdict which omits or withdraws essential elements of the case, constitutes reversible error. Enloe v. American Car Co., 240 Mo. 443, 144 S.W. 852. (2) (a) Where the proof fails to sustain the allegations upon which prayer for punitive damages is based, the court should withdraw from the jury the question of punitive damages. Bean v. Branson, 217 Mo.App. 399, 266 S.W. 743; Welsh v. Stewart, 31 Mo.App. 376. (b) In the absence of evidence of actual malice, the court should so instruct. St. Louis & S. F. R. Co. v. Fitzmartin (Okla.), 136 P. 764. (3) (a) Instructions which are broader than the pleadings constitute error. Rucker v. Alton Ry. Co., 393 Mo. 929, 123 S.W.2d 24; Lynch v. Missouri-Kansas-Texas Railway Co., 333 Mo. 89, 61 S.W.2d 918; Bonnarens v. Lead Belt Railway Co., 309 Mo. 65, 273 S.W. 1043. (b) Failure to instruct the jury as to what acts will authorize a verdict of punitive damages constitutes error. Zemlick v. A. B. C. Auto Sales & Investment Co., 60 S.W.2d 649; Pogue v. Rosegrant (Mo.), 98 S.W.2d 528, 553. (4) Where there is a question of fact, whether or not plaintiff has been damaged, an instruction assuming such fact, constitutes reversible error. Rodefer v. Brookings, 206 Mo.App. 538, 229 S.W. 826; State ex rel. v. Williams, 69 S.W.2d 970; Reavis v. Gordon, 45 S.W.2d 99. (5) (a) The invasion of the province of the jury with unnecessary definition of preponderance of evidence amounts to improper commentary with respect to weight of evidence. (b) Court's assumption that witnesses were biased and prejudiced constitutes reversible error. (c) An instruction by the court that the relationship of the witnesses to the parties increases or diminishes the value of their testimony, and directs the jury to consider such fact, constitutes reversible error. Keeline v. Sealy, 257 Mo. 498, 165 S.W. 1088. (d) An instruction on the credibility of witnesses giving the jury a roving commission to consider "all other things" which they may think increases or diminishes the value of the witnesses' testimony, without limitation to the evidence, constitutes reversible error. 64 C. J. 519; Ames v. Thren, 136 Ill.App. 568. (6) The giving of two cautionary instructions is subject to criticism, and the repetition of the same caution constitutes reversible error. Williams v. Guyot (Mo.), 126 S.W.2d 1137. (7) Statements by counsel in the argument which the pleadings and evidence do not justify constitute error and are presumed to be harmful. Amsinger v. Najim, 73 S.W.2d 214, 335 Mo. 528; Stout v. Kansas City Pub. Serv. Co., 17 S.W.2d 363, 368; Monroe v. Chicago & Alton Railway Co., 297 Mo. 633, 249 S.W. 644. (8) (a) Where a verdict shows upon its face that the jury considered facts outside of the scope of the issues, the verdict should be set aside. St. Louis & S. F. R. Co. v. Fitzmartin (Okla.), supra. (b) A verdict that is so excessive as to indicate prejudice and misconduct on the part of the jury should be set aside.
Sherman & Sherman for respondent.
(1) Statute requiring corporations to issue service letters to employees who are discharged or quit employment is penal in character. Mo. Stat. Ann., sec. 4588, p. 2026; Lyons v. St. Joseph Belt Ry. Co. (Mo. App.), 84 S.W.2d 933. (2) Actual damages was presumed from failure of defendant corporation to issue service letter to discharge employee, justifying submission of issue to jury for actual damages. Mo. Stat. Ann., sec. 4588, p. 2026; Lyons v. St. Joseph Belt Ry. Co. (Mo. App.), 84 S.W.2d 933, 941; Collins v. Economy Oil Co., (Mo. App.), 129 S.W.2d 1066. (3) In awarding punitive damages, not only amount thereof but whether punitive damages should be allowed at all, is within discretion of jury. Walker v. St. Joseph Belt Ry. Co. (Mo. App.), 102 S.W.2d 718. (4) Either actual malice or malice in law will justify the grant of punitive damages. Walker v. St. Joseph Belt Ry. Co. (Mo. App.), 102 S.W.2d 718, 724, 725; Hall v. St. Louis-San Francisco Ry. Co. (Mo. App.), 28 S.W.2d 687. (5) Instructions must be read together, and alleged misdirection that might otherwise appear in instruction standing alone, and the omissions therefrom in the particulars complained of, disappear. Markowitz v. Kansas City, 125 Mo. 485, 28 S.W. 642, 46 Am. St. Rep. 498; Meadows v. Pacific Mut. Life Ins. Co. of California, 129 Mo. 76, 31 S.W. 578; Brown v. Globe Printing Co., 213 Mo. 611, 112 S.W. 462; Lyons v. St. Joseph Belt Ry. Co., Mo. App.), 84 S.W.2d 933, 944, 945; State v. Shain (Mo.), 108 S.W.2d 351; Hoover v. Western Coal & Mining Co., 160 Mo.App. 326. (6) Where upon a trial, a question of fact is practically admitted, and is not treated as a contested matter, the court has a right to assume the truth of such fact and omit it from required finding of the jury. Allen v. Purvis (Mo. App.), 30 S.W.2d 196, 200; Shouse v. Dubinsky et al. (Mo. App.), 38 S.W.2d 530, 534, 535; Walsh v. Hartman et al. (Mo. App.), 39 S.W.2d 398. (7) A recommendation appended to a verdict is mere surplusage. 64 C. J. 1085, 1086, par. 888; State ex rel. Webster v. Knight, 46 Mo. 83; Ronney v. Bader, 48 Mo. 539. Instruction on credibility of witnesses approved. Malone v. Franke, 274 S.W. 369.
--This is an action in two counts. The first count is for the recovery of damages for the refusal of defendant to furnish to plaintiff a service letter, upon the termination of his employment with it, as provided by Section 5064, Revised Statutes 1939. The second count is to recover the balance due plaintiff as wages. There was a verdict and judgment, on the first count, in favor of plaintiff in the sum of $ 1 actual and $ 5000 punitive damages and, on the second count, in the sum of $ 31.78, with an appendage attached thereto reading as follows: "We also recommend that the Carder Wholesale Grocery Company furnish Dallas M. Hatton with a proper service letter." Defendant has appealed.
The facts show that defendant is a corporation engaged in the wholesale grocery business in the City of St. Joseph; that plaintiff was employed by the defendant as one of its truck drivers who delivered goods for it and made collections for the price of the same upon delivery; that plaintiff, on April 6, 1940; left the employ of the defendant as the result of a controversy between him and it as to whether he had accounted for the sum of $ 36.92. This sum he had collected, on March 8, 1940, from the Trading Post, one of defendant's customers, to which plaintiff had delivered a bill of groceries.
The evidence shows that the collection in question was described as a C.O.D. The practise of the defendant relative to C.O.D. sales was as follows: Tickets were made by the shipping clerk on the return of the driver from his trip. These tickets were made in triplicate sheets or slips, one copy being white, the other pink, and the third, yellow. The tickets were bound together in a book and were taken by the driver to the cashier, who took them to an adding machine to add them up. The cashier would then receive the money from the driver and the former would stamp all of the sheets paid. The white copy was retained by the cashier for posting in the books. The pink copy was handed to the driver as his receipt and the yellow one remained in the book as an office record.
Plaintiff made the collection from the Trading Post on March 8, 1940, and on March 14, he took the C.O.D. tickets to Mr. Brislin, the cashier, who marked the sheets paid.
The evidence of the defendant tended to show that the cashier did not receive this item from plaintiff and made a mistake in marking the slips paid. The cashier, testifying for the defendant, stated: " He excused his mistake by saying that he was very busy that day and that He further testified that he never had the white sheet or slip and that it was not in defendant's record.
Plaintiff testified that he paid the sum of $ 36.92 at the time he received the receipt from the cashier on March 14, 1940; that about two weeks prior to April 6, 1940, the cashier told him that he could not find where plaintiff had "turned in" the money and "wanted me to make it up;" that the witness told the cashier that he had "turned all my money into him and I would know when I got home and looked up my receipts;" that the cashier said for him to see Mr. Bostick, the auditor, credit and office manager of the defendant; that thereafter he saw Mr. Bostick, whom he told: "I didn't know anything about it and would have to look up my slips;" that Bostick told him that the cashier had made a mistake in stamping the tickets paid that Mr. Bostick took him to the cashier's office and got out the adding machine tape, covering the day in question, and went over...
To continue reading
Request your trial
-
State v. Wood
...it to return to jury room and change its verdict. Sec. 4070, R.S. 1939; Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24; Hatten v. Gardner, 235 Mo.App. 1198, 150 S.W.2d 1102. (15) The verdict was against the law and against the greater weight of all the evidence. It was without sufficient ......