Lundberg v. Prudential Ins. Co. of America, WD

• Decision Date: 22 November 1983
• Docket Number: No. WD,WD
• Parties: 114 L.R.R.M. (BNA) 3490, 100 Lab.Cas. P 55,438 Arthur W. LUNDBERG and Eva L. Lundberg, Appellants, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent. 34363.
• Court: Missouri Court of Appeals

Page 667

661 S.W.2d 667

114 L.R.R.M. (BNA) 3490, 100 Lab.Cas. P 55,438

Arthur W. LUNDBERG and Eva L. Lundberg, Appellants, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent.

No. WD 34363.

Missouri Court of Appeals Western District.

Nov. 22, 1983.

Richard E. Duggan, Sunrise Beach, for appellants.

John J. Kitchin, Robert W. McKinley, Kansas City, for respondent; Swanson, Midgley, Gangwere, Clarke & Kitchin, Kansas City, of counsel.

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

SOMERVILLE, Presiding Judge.

This litigation arose out of plaintiff-husband's termination as sales manager for defendant under a contract of employment terminable at will. The sole issue on appeal is whether plaintiffs' evidence supported submission of their claims for compensatory and punitive damages under the prima facie tort theory. The trial court did not think so, as it directed a verdict in favor of defendant at the close of plaintiffs' evidence.

The elements of a prima facie tort, per the landmark case of Porter v. Crawford & Co., 611 S.W.2d 265, 268 (Mo.App.1980), the most definitive and exhaustive discussion of the doctrine to date in this state, are: (1) An intentional lawful act by the defendant; (2) An intent to cause injury to the plaintiff; (3) Injury to the plaintiff; (4) An absence of any justification or an insufficient justification for the defendant's act.

Realistically, this court cannot blind itself to the well-established rule recently emphasized in Amaan v. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981): "In Missouri the rule is well established 'that in the absence of a contract for employment for a definite term or a contrary statutory provision, an employer may discharge an employee at any time, without cause or reason, or for any reason and, in such cases no action can be obtained for wrongful discharge.' Christy v. Petrus, 295 S.W.2d 122, 124 (Mo. banc 1956); Cooper v. City of Creve Coeur, 556 S.W.2d 717, 720 (Mo.App.1977)."

Plaintiffs, husband and wife, filed a two count petition. The first count sought compensatory and punitive damages on behalf of the husband, the second count was a derivative action on behalf of the wife, with both carefully couched to plead all the essential elements of a prima facie tort. The decisive facts for testing the verdict directed in favor of defendant, governed by treating plaintiffs' evidence as true and giving them the benefit of all reasonable inferences, unfold as follows.

Plaintiff-husband (hereinafter singularly referred to as plaintiff), for a number of years, held the position of staff sales manager for defendant in one of its Kansas City District offices. The position was documented by a written agreement which, inter alia, provided that plaintiff's position as staff sales manager "and this Agreement may be terminated by either party at any time." Plaintiff, as staff sales manager, was responsible for one of four staffs of sales agents and, through the efforts of himself and his staff, of promoting the success of defendant and in carrying out its sales and service programs under the supervision of a district manager. In the company hierarchy, the district manager was plaintiff's immediate superior. A new district manager for the Kansas City District was appointed by defendant in July, 1980.

The new district manager stressed "joint production", i.e. sales produced by customer contacts made jointly by a staff sales manager and a staff sales agent. Certain production quotas in this respect were set which plaintiff failed to meet. The district manager, by letter, expressed his disappointment to plaintiff about his failure to meet joint production quotas and offered suggestions to plaintiff in an effort to assist him. Shortly thereafter, production goals for plaintiff's staff of sales agents were set for calendar year 1981 and, additionally, they were placed on "Citation Pace", a company-wide goal. By letter, the district manager advised plaintiff that "nothing short of super human effort on your part" could accomplish such goals and "that anything less than this type of effort" would "not be tolerated." A subsequent letter from the district manager reminded plaintiff that failure to meet his production quotas for the first quarter of calendar year 1981 would leave the district manager with "no choice" but to "assign" him to "whatever agency is available in the office."

Plaintiff's sales staff was initially considered by the district manager as having real potential for making "Citation Pace". One of plaintiff's staff agents "topped" the district in sales and accounted for approximately one-third of the staff's production.

Methods of achieving production goals by the present district manager and his predecessor differed. Plaintiff preferred the predecessor's methods. During calendar year 1980 plaintiff's sales staff had the smallest number of joint production applications in the district. There was no increase in joint production applications by plaintiff's sales staff from late November, 1980, to March 1, 1981. Plaintiff claims that a few days later the district manager removed him as staff sales manager and reassigned him as a sales agent in his home area. The evidence in this respect is not as clear as plaintiff would have one believe. It is arguable that plaintiff asked to be relieved as sales manager and reassigned as a sales agent. Tangentially, another staff sales manager was removed by the district manager in the fall of 1980.

Prior to July, 1980, the time the new district manager arrived on the scene, plaintiff had been a "top" sales manager and was well liked by those he worked with. As far as plaintiff was concerned, a personality conflict existed between him and the new district manager as evidenced by the following excerpt from plaintiff's testimony: "Mr. Naegler [the new district manager] just did not like me. And I don't like him either." The record also suggests that plaintiff was quick to draw certain broad conclusions as he testified that he had the "respect" of the other agents in the office, the new sales manager did not, and was "jealous" of plaintiff for that reason. Plaintiff was still working for defendant as a sales agent at the time of trial.

By way of damages, plaintiff claimed that his demotion would cause him to suffer loss of income and retirement benefits thereafter and that he was humiliated, disgraced and embarrassed, thereby causing him to suffer severe emotional distress. Plaintiff-husband prayed for compensatory damages in the sum of Four Hundred Fifty Thousand ($450,000) Dollars and punitive damages in the sum of One Million ($1,000,000) Dollars. Plaintiff-wife, in her derivative action, prayed for compensatory damages in the sum of Twenty-Five Thousand ($25,000) Dollars and punitive damages in the sum of One Hundred Thousand ($100,000) Dollars.

The appellation, prima facie tort, continues to invoke mixed reactions in legal circles in this state notwithstanding its recognition as an accepted doctrine in Porter v. Crawford & Co., supra. A legitimate concern has been whether the prima facie tort doctrine would be shaped into a well-defined tort category with clearly etched boundaries or whether it would be an abstraction presaging a cause of action under the facade of a tort for every situation where none previously existed.

The prima facie tort doctrine, admittedly in an embryonic stage in this state, looks to § 870, Restatement (Second) of Torts (1977), as a basic source. Porter v. Crawford & Co., supra. Sensing a judicial responsibility to guard against its unjust exploitation, Porter v. Crawford & Co., supra, requires...