Hills v. McComas Rentals, Inc.

• Decision Date: 19 September 1989
• Docket Number: No. WD,WD
• Citation: 779 S.W.2d 297
• Parties: Mary Kay HILLS, Appellant, v. McCOMAS RENTALS, INC. Respondent. 41297.
• Court: Missouri Court of Appeals

Page 297

779 S.W.2d 297

Mary Kay HILLS, Appellant, v. McCOMAS RENTALS, INC. Respondent.

No. WD 41297.

Missouri Court of Appeals Western District.

Sept. 19, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 31, 1989.

David Edw. Martin, Independence, for appellant.

Lauri J. Laughland, Kansas City, for respondent.

Before GAITAN, P.J., and MANFORD and ULRICH, JJ.

GAITAN, Presiding Judge.

Mary K. Hills, plaintiff, brought an action for damages against McComas Rentals for failure to supply a service letter pursuant to § 290.140, RSMo 1986. The trial judge in this court tried case found for defendant, McComas Rentals. Plaintiff appeals, arguing the trial court erred in that: (1) Hills complied with the requirements of § 290.140, and McComas Rentals failed to provide substantial evidence that it complied with the statute; and (2) Hills' compliance entitles her to nominal and punitive damages for McComas Rentals' failure to comply with the statute. We reverse and remand with directions.

Plaintiff was employed by McComas Rentals on or about July of 1985. Her job duties were in the nature of bookkeeping and office work. McComas Rentals terminated plaintiff's employment in March of 1987. She testified that she was unemployed from March until June of 1987, at which time she accepted a position with U-Haul of Independence. Plaintiff voluntarily left U-Haul's employ after three or four months, and remained unemployed through October 6, 1988, the date of trial.

On December 5, 1987, plaintiff wrote the following letter to Kim McComas, president of McComas Rentals.

I am requesting a written reply stating the cause for my dismissal in March of 1987 as required by the Revised Statutes of Missouri, Section 290.140.

s/Mary Penn ¹

Please send reply to 1405 Baker Drive, Independence, Missouri 64050.

The letter was mailed certified, return receipt requested. McComas Rentals stipulated as to Hills' compliance with the requirements of § 290.140 regarding request for a service letter.

Plaintiff testified she resided at the Independence address for 90 days following her request for a service letter, and that she never received a response from McComas Rentals.

During trial, Kim McComas admitted that she had received the request on December 7, 1987. She stated she was not aware of the existence of § 290.140, or that by law she was required to respond to the request. Despite these assertions, Kim McComas produced a copy of a letter, on company letterhead, dated December 17, 1987 which read as follows:

Mary, as stated to the you the day you were laid off, your position (bookkeeper) is being eliminated. The position has not been reinstated to date.

s/Kim McComas

The letter was introduced into evidence without objection. On cross-examination, McComas conceded the letter was not sent certified mail and that Hills' address did not appear on the letter. She did state that she prepared and typed the letter herself, and that she "sent it out ..." The copy of the December 17 letter from McComas was the only evidence produced supporting McComas Rentals' contention that a service letter was sent to Hill.

This case was tried to the court on October 6, 1988 and taken under advisement. The trial court made a docket entry finding for defendant, McComas Rentals, on October 11, 1988. Plaintiff filed a motion for new trial on November 10, 1988 which was overruled on the same date. This, too, was only done by docket entry.

In reviewing a trial court's judgment in a court tried case, an appellate court must affirm unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); A.L. Huber & Sons v. Jim Robertson Plumbing, 760 S.W.2d 496, 498 (Mo.App.1988); see also Rule 73.01(c). The service letter statute, revised in 1982 states:

290.140. Letter of dismissal, when--failure to issue, damages--punitive damages, limitations.--1. Whenever any employee of any corporation doing business in this state and which employs seven or more employees, who shall have been in the service of said corporation for a period of at least ninety days, shall be discharged or voluntarily quit the service of such corporation and who thereafter within a reasonable period of time, but not later than one year following the date the employee was discharged or voluntarily quit, requests in writing by certified mail to the superintendent, manager, or registered agent of said corporation, with specific reference to the statute, it shall be the duty of the superintendent or manager of said corporation to issue to such employee, within forty-five days after the receipt of such request, a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee was discharged or voluntarily quit such service.

[Emphasis added].

2. Any corporation which violates the provisions of subsection 1 of this section shall be liable for compensatory but not punitive damages but in the event that the evidence establishes that the employer did not issue the requested letter, said employer may be liable for nominal and punitive damages; but no award of punitive damages under this section shall be based upon the content of any such letter.

[Emphasis added].

"If any employee meets the statutory prerequisite to be entitled to a service letter, he has a cause of action if the corporation fails to issue a letter or issues the letter not conforming to all the statutory requirements." Labrier v. Anheuser Ford Inc., 621 S.W.2d 51, 57 (Mo. banc 1981). At trial, plaintiff presented evidence that at the time of her termination, McComas Rentals employed seven persons, that she was employed at McComas Rentals for a period exceeding 90 days, and that her request for a service letter was within one year of her termination. Again, McComas Rentals stipulated as to plaintiff's compliance with the requirements of § 290.140.

Inasmuch as plaintiff has complied with § 290.140, we must now determine whether or not the defendant has fulfilled its requirement in response thereto. We must assume from the ruling that the trial court believed that McComas Rentals complied with its responsibilities under § 290.140. That it, in fact, provided a service letter to the plaintiff.

Plaintiff bears the burden of demonstrating the absence of sufficient evidence to support the trial court's decree. See In Interest of H.J.P., 669 S.W.2d 264, 272 (Mo.App.1984). Missouri law, which incorporates a rebuttable presumption of delivery, requires proof that the letter was put in an envelope with the correct address of the recipient, with sufficient postage and placed in the mail. Lake St. Louis Community Association v. Ringwald, 652 S.W.2d 158, 160 (Mo.App.1983); Miller v. Hancock Mutual Life Insurance Company, 155 S.W.2d 324, 327-28 (Mo.App.1941). When direct proof is impractical, due to the large volume of mail involved in a particular office, absent a showing that the mail was not received, evidence of the settled custom and usage of the sender in the regular and systematic transaction of its business is sufficient. Lake St. Louis Community Association v. Ringwald, 652 S.W.2d at 160-61; First National Bank of Independence v. Mid-Century Insurance Company, 559 S.W.2d 50, 52 (Mo.App.1977).

In Miller, the trial court refused to admit into evidence a carbon copy of a letter reportedly mailed, when no showing was made that the letter was enclosed in a properly addressed envelope, postage prepaid, or how, where, or when the letter was mailed. Miller v. John Hancock Mutual Life Insurance Company, 155 S.W.2d at 327-28. The St. Louis Court of Appeals held that while a carbon copy may be admitted into evidence, proper foundation must be laid before it is admissable, and upheld the trial court's decision. Id. at 328. When proof exists as to proper mailing, a rebuttable presumption is created, and proof to the contrary when offered creates an issue for the trier of fact. Price v. Ford Motor Credit Company, 530 S.W.2d 249, 253 (Mo.App.1975); Williams v. Northeast Mutual Insurance, 72 S.W.2d 166, 167 (Mo.App.1934).

At trial, foundation was improperly laid for the admittance of Kim McCommas' December 17 letter. Prior to introduction of the letter into evidence, no evidence was introduced as to where the letter was addressed, whether it was mailed postage prepaid, the method of mailing nor precisely when the letter was mailed. McComas later testified that she signed the letter, that she prepared and typed the letter herself, and that she "sent it out herself" to the address on Baker Drive. Again, plaintiff denies ever receiving this letter.

Other than the testimony of Kim McComas which served as the foundation by which the December 17th letter was admitted into evidence, the defense presented no other evidence of McComas Rentals' properly responding to plaintiff's request. Here, we have a letter dated without an address and with a first name only. We do not know from the letter with certainty who the addressee is, or where the letter was to have gone. We do not know whether this letter was properly enclosed in an envelope, postage paid, and placed into the United States mail. The fact that plaintiff did not receive this letter supports the proposition that she may not have been the addressee.

When McComas' attorney initially attempted to use the letter at trial, plaintiff's counsel objected as to improper foundation. However, after an effort to cure the objection, the defense counsel asked to introduce the letter into evidence, and plaintiff's attorney stated he had no objection. By so doing he stipulated to its content. Therefore, although an insufficient foundation was laid for the...