Lotz v. Missouri Distributing Co.
| Decision Date | 01 February 1965 |
| Docket Number | No. 24104,24104 |
| Citation | 387 S.W.2d 179 |
| Parties | Richard LOTZ, Respondent, v. MISSOURI DISTRIBUTING COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
Somerville & Cleaveland, Ronald L. Somerville, Chillicothe, for appellant.
Don Chapman, Jr., Chapman & Chapman, Chillicothe, for respondent.
This is a suit in two counts by Richard Lotz, respondent, against Missouri Distributing Company, appellant. In Count I respondent sought $2,262.20 unpaid sales commissions ('overage') covering the period of May 2, 1958, to August 27, 1960; $80.78 for unpaid commissions for the period ending February 26, 1962, and $578.66 for overcharge of truck rental. In Count II respondent sought $900.00 unpaid wages after June 12, 1962, the date of his alleged discharge. The case was tried to the court, and judgment was for respondent for the claimed $2,262.20, the claimed $80.78, for $397.51 for truck rental, plus interest for a total of $2,995.81 on Count I; and for $900.00 on Count II. The appeal is from that judgment.
This being a jury waived case, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. The judgment is not to be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.
Appellant contends the trial court erred in overruling its motion for a directed verdict filed at the close of the evidence. Appellant also contends the judgment was for the wrong party. Appellant did not introduce any evidence at the trial. We will take up appellant's specific reasons for its contentions after setting forth the gist of the evidence concerning them.
Richard Lotz became an employee of appellant as a salaried warehouse worker on November 26, 1951. In January, 1952, he went 'on the road' as a sales trainee and in September, 1952, became a route salesman. His principal duties consisted of driving a truck loaded with appellant's merchandise consigned to him and to his account, calling on customers and selling them this merchandise from the truck. His remuneration for sales made generally consisted in the difference between the price for which he sold the merchandise and the cost of it to him. He was provided a catalogue of appellant's merchandise showing a particular retail price for a certain item, and he was authorized to sell at that price or less.
Each Saturday Lotz would go to the company's office and order whatever items he needed, usually to replace those sold. An invoice in duplicate would be prepared by employees of the company. The order shown on the invoice was filled by company employees who would get the specific items from the warehouse, check them, load them on a cart and deliver them to Lotz to load on his truck. The invoice and all copies were sent to the front office where the price of each item was computed and charged to Lotz's consigned account. Lotz received one copy of the invoice and checked the items listed on it.
Lotz worked his route from each Monday morning until Friday night, calling on an average of 65 customers per week. When he sold an order of merchandise he would take the merchandise from the truck, deliver it to the customer and collect the sales price from the customer. A sales slip in triplicate was prepared by Lotz showing the customer's name, the date, amount of merchandise, and the price charged. At the end of each sales day Lotz prepared a daily report showing the various customer's names, amount of merchandise sold to each, the amount of the commission withheld on each sale and the total commission amount for the day. At the end of each work week Lotz prepared a similar weekly report in duplicate, showing total cash sales and commissions for the week. Lotz retained one copy of these daily and weekly reports and turned in one copy of them to the company. Also at the end of each week he turned into the company the cash from these sales less whatever commission he withheld. He was given credit by the company on his account for the cash turned in.
Periodic, but infrequent, inventories were taken by the company on Lotz's truck. The process of taking the inventories consisted of removing the merchandise from the truck, counting it, totaling up the amount and checking it against the consigned account. An 'ending inventory' was the term used for the mentioned periodic inventories and it determined whether Lotz had an 'overage' or 'shortage' with respect to his consigned account. A 'beginning inventory' was the term used to describe the amount for which he was billed when starting out after the completion of a periodic ending inventory. An 'overage' was described as having more merchandise on the truck at the time of an ending inventory than was called for in the consigned account. A 'shortage' was described as having less merchandise on the truck at the time of an ending inventory than was called for in the consigned account.
In addition to his consigned account Lotz also had a personal account with the company. Based on the mentioned reports, the company computed withholding and social security taxes each month and debited them to his personal account. Also debited against his personal account were such items as truck insurance and shortages. This account was paid by Lotz to the company each month.
Turning to the overage dispute, Joe Lambert, vice president of appellant until April 4, 1962, testified there were 44 sales routes with an equal number of salesmen, including Lotz. These salesmen were paid by the salesman withholding from the sales price what he earned and turning the balance of it to the company's auditing department. However, these salesmen, including Lotz, were 'not necessarily' instructed to take out their full commission. It was permissible for the salesman to take less than the commission actually resulting from a particular sale. As Joe Lambert phrased it, 'If they're smart salesmen they take less.' * * * 'In other words, (the weekly sales report) shows his commission, shows his cost, what he is supposed to turn in.' * * * 'However, your smart operator always left a few dollars in there as a cushion, we called it, to build up an overage * * *.' Joe Lambert stated that if a salesman came up short the salesman had to make it up by paying the company that amount of money. 'But if he come (sic) up short a second time then he's laid off.' Lambert testified he knew Lotz on occasions during the two periods of time in question took less than his commissions. Lambert gave several examples of this, and stated Lotz had told him of several particular instances he did not draw his full commission but was leaving it as a cushion.
The company generally knew of the 'overage' practice by Lotz and the other salesmen and not only did not object to it but encouraged it. Lambert was asked,
Lotz's testimony was in accord with that of Joe Lambert. Lotz stated that Jim Lambert, president of appellant company, and the brother of Joe Lambert, advised him to build up an overage so that he could never be checked short; that Jim Lambert told him, 'It would come in to you in a lump sum you could do something with.' Lotz testified that during the two periods of time in question he did not report or put all of his commissions down on his daily reports because he was trying to build up an overage. He gave several example transactions in which he engaged during the two periods of time in question which resulted in overages. With reference to the two overages he stated, 'I didn't always pull my commissions.' * * * 'What is short (commissions not taken) is for overage that was lying there for me at the time of this inventory.' Lotz testified the two overages were caused by 'Nothing more than overae on commissions that I hadn't pulled in twenty-seven months.'
Looking to Lotz's past experience with overages and shortages, on May 2, 1958, an ending inventory taken by the company showed an $824.85 shortage. The company charged this to Lotz's personal account and he paid it. Again on March 31, 1961, an ending inventory showed a shortage of $425.48 which Lotz paid the company.
On August 27, 1960, an ending inventory was taken by the company on Lotz's truck and this inventory showed an overage of $2,262.20. The period of time involved in the accrual of this overage is from May 2, 1958, to August 27, 1960. The company refused Lotz's request he be paid that sum, taking the position 'there was error' although some fifteen rechecks by the company failed to disclose any error. Similarly, an ending inventory taken by the company on Lotz's truck on February 26, 1962, showed an overage of $154.43, which after adjustment on Lotz's personal account, left a net overage of $80.78. The period of time involved in the accrual of this overage is from March 26, 1961, to February 26, 1962. The company also refused to pay Lotz this overage although requested to do so. It is these two overages which are the subject of the first count of Lotz's suit.
The company contends Lotz's overages could have resulted not from true overages but from mistake such as (a) if merchandise from the company went on Lotz's truck for which no invoice was made out; (b) if merchandise went on the truck and Lotz got both copies of the invoice, (c) if merchandise was invoiced to another salesman but by mistake got on Lotz's truck; (d) if another salesman returned merchandise but by company mistake Lotz was credited with the return; (e) if the company erroneously credited Lotz with another salesman's cash deposit; (f) if an item was incorrectly invoiced as to price to Lotz or if Lotz traded a customer merchandise in a manner that resulted in Lotz's retaining more merchandise than he disposed of. However, there is no evidence that any of these ...
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