Jones v. Pinkerton's Inc.

• Citation: 700 S.W.2d 456
• Decision Date: 21 May 1985
• Docket Number: No. WD,WD
• Parties: Ernest C. JONES, Plaintiff/Appellant, v. PINKERTON'S, INC., Defendant/Respondent. 35514.
• Court: Court of Appeal of Missouri (US)

Page 456

700 S.W.2d 456

Ernest C. JONES, Plaintiff/Appellant, v. PINKERTON'S, INC., Defendant/Respondent.

No. WD 35514.

Missouri Court of Appeals Western District.

May 21, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

July 2, 1985.

Application to Transfer Denied

Dec. 17, 1985.

Dennis G. Muller, Kansas City, for plaintiff/appellant.

Don B. Roberson, John P. Poland (argued), Kansas City, for defendant/respondent.

Before LOWENSTEIN, P.J., and SOMERVILLE and NUGENT, JJ.

NUGENT, Judge.

Plaintiff Ernest Jones appeals from a grant of summary judgment in favor of defendant Pinkerton's, Inc. The trial court held that Mr. Jones' libel action is barred by the statute of limitations. § 516.140. Mr. Jones on appeal argues that § 516.100 dictates that his cause of action accrued at a later date than the date of accrual found by the trial court and, therefore, his action is not barred by the statute of limitations. We agree, reverse and remand for trial.

Plaintiff is an accountant and former employee of Farmland Industries, Inc., which hired him in June of 1974 and dismissed him on November 27, 1974. Mr. Jones' dismissal followed receipt by Farmland of defendant Pinkerton's investigative report about him. Mr. Jones alleges that the report libels him.

Pinkerton's report reveals that it consciously sought to keep the plaintiff from discovering its investigation. In fact, Mr. Jones was unaware of the investigation while it was being conducted. Once Pinkerton had made its final report, Farmland decided to dismiss the plaintiff. Farmland also sought to prevent the plaintiff from learning of the investigation and report.

Plaintiff Jones' affidavit in opposition to defendant's motion for summary judgment discloses the following facts. Defendant does not dispute the accuracy of the affidavit.

On November 27, 1974, Farmland's corporate attorney, Robert Gowdy dismissed plaintiff. Mr. Jones' immediate supervisor, Henry Springe, and the corporation's director of personnel were also present at the firing. After being told that his services were no longer required, Mr. Jones asked for an explanation of his termination. The only answer that he received was that his employment application was incomplete. Later, Mr. Jones questioned Mr. Springe on the subject. He replied that Mr. Jones knew as much about the situation as they did. Mr. Springe also indicated that he could not talk about the matter.

Several weeks later, in a chance encounter Mr. Jones asked his former assistant why he had been fired. The assistant responded that he did not know and that management would not discuss it. Mr. Jones then wrote to the company president asking for an explanation. In response he received a service letter dated January 9, 1975, which revealed the fact of the defendant's investigation and report. Defendant does not contend that plaintiff could have become aware of the investigation and report at any time before receipt of the service letter.

On January 6, 1977, Mr. Jones filed his first Missouri action for libel in Jackson County, but he voluntarily dismissed that action without prejudice on August 26, 1981, and filed the present action on October 21, 1981. On September 15, 1983, defendant moved for summary judgment on the ground that plaintiff's action was barred by the statute of limitations. § 516.140. Defendant argued that plaintiff's action accrued for purposes of the statute of limitation when defendant's report was delivered to Farmland sometime before November 24, 1974. The court sustained the motion and entered judgment for defendant.

Plaintiff raises several interrelated points on appeal, since plaintiff's first point is decisive we need only address it. He argues that under § 516.100 his action did not accrue when defendant's alleged libelous report was published because his damage was not sustained and capable of ascertainment until he received the service letter of January 9, 1975. He contends that his cause of action was not discoverable and could not be discovered despite his inquiry until Farmland revealed the fact of defendant's report in January.

Although summary judgment is a drastic remedy and is not generally favored, where the material facts involved in the case are not in dispute, as in this case, it is an appropriate remedy for the assertion of an affirmative defense entitling the party to judgment as a matter of law. Blanks v. Cantwell, 578 S.W.2d 349, 350 (Mo.App.1979); Rule 74.04.

The major question we address in this appeal is at what time plaintiff's libel action accrued for purposes of § 516.100 and § 516.140. ¹ The trial court held that it accrued when defendant delivered or published its report to Farmland. Plaintiff argues that it did not accrue until he received the January 9, 1975, service letter because only then did he discover his cause of action. ²

Section 516.140 provides that actions for libel be brought within two years. § 516.100 provides that for purposes of §§ 516.100 to 516.370, including § 516.140, a cause of action shall not accrue when the wrong is done but when the resulting damage is "sustained and capable of ascertainment." Therefore, for purposes of § 516.140, a cause of action for libel must be brought within two years of the date that the resulting damage is "sustained and capable of ascertainment."

Defamation is an invasion of a plaintiff's interest in reputation which is a relational interest involving community opinion of the plaintiff. W. Prosser, Torts at 737 (1971). An essential element of the tort is that the alleged defamatory material or statement be communicated or published to a third person. Id. at 766. Plaintiff's reputation interest is invaded at the time of publication, and arguably that is the time when his damage is sustained. But, in view of the statutory language "when the damage resulting therefrom is sustained and is capable of ascertainment" the question is: When does plaintiff's libel action accrue for purposes of § 516.100, that is, when does the statute begin to run? Could plaintiff's cause of action have accrued by reason of defendant's delivery of the report to Farmland, as the trial court ruled, or did it accrue when the plaintiff received the January 9, 1975, service letter?

Professor Davis in his article Tort Liability and the Statutes of Limitations, 33 Mo.L.Rev. 177 (1968) at 187-88, identifies four events that will trigger the running of statutes of limitation. First is the commission of the wrong; second, the sustention of injury; third, the substantial completion of injury to plaintiff; and fourth, the plaintiff's discovery that he has been aggrieved. The Missouri statute, § 516.100, causes the statute to begin to run when the damages are complete and capable of ascertainment. Discerning the meaning of the test based on "capable of ascertainment" has posed considerable difficulty in a number of cases. See, Martin v. Crowley, No. WD 35,713, slip op. at 4-9 (Mo.App. April 2, 1985), for Judge Clark's survey of the modern Missouri decisions on the issue.

Martin is analogous to the case at hand and points the way to applying the test to these facts. In that case, the plaintiff hired the defendant, a company of surveyors, licensed engineers and architects, to survey his unimproved lot in order properly to locate a house. The defendants picked the site on the lot on which the house was built. As a result of a dispute with his neighbors, plaintiff later discovered that the house was too close to the property line. This caused a lowering of his property's fair market value.

Judge Clark's opinion holds that the statute was tolled until the plaintiff found out about the error. Id. slip op. at 10 He explained that "capable of ascertainment" applies both to the wrong committed and to the loss suffered; during the time when either is unascertainable the statute is tolled. Id. slip op. at 9 Part of the court's decision rests upon its finding that plaintiff is under no duty to check the work of experts or professionals he has hired unless circumstances suggest to plaintiff an error or omission. Id. slip op. at 9-10 See also Anderson v. Griffin, et al., 684 S.W.2d 858 (Mo.App.1984); Thorne v. Johnson, 483 S.W.2d 658 (Mo.App.1972).

The present case does not involve an error committed by an expert or professional, but it does present circumstances where the alleged wrong, the existence of the libel and any damage to his reputation, were not ascertainable by Mr. Jones. The actions of plaintiff's employer and the defendant prevented plaintiff from becoming aware of defendant's report. Therefore, the action of Farmland and defendant erected an intervening screen hiding any wrong done plaintiff. Until he received the service letter on January 9, 1975, plaintiff had no notice of his cause of action, and the statute was tolled until that notification. Martin v. Crowley, supra, slip op. at 10. Our decision here is consistent with Krug v. Sterling Drug, Inc., 416 S.W.2d 143, 150 (Mo.1967), where the Supreme Court held that the plaintiff must have some notice of his cause of action, either an awareness that he has suffered an injury or that he has suffered a legal wrong.

Plaintiff was unaware here because factors outside of his control prevented his ascertainment of any legal wrong. A similar case involving a screening situation is Fichtner v. Mohr, 223 Mo.App. 752, 16 S.W.2d 739, 741 (1929). There plaintiff sued for monies she had deposited in an insolvent bank. At the time plaintiff made the deposit, the bank's insolvency was known only to the defendants. It was not made public until the bank was liquidated several years later. In the liquidation, plaintiff received only part of her deposit. The court rejected defendant's argument that her cause accrued for purposes of the statute of limitations when the money was deposited, holding, instead, that it accrued when the insolvency was revealed by the authorities. The court...