Rauch v. Gas Service Co.

Decision Date27 December 1950
Docket NumberNo. 6930,6930
Citation235 S.W.2d 420,241 Mo.App. 976
PartiesRAUCH v. GAS SERVICE CO. et al.
CourtMissouri Court of Appeals

McReynolds, Flanigan & Flanigan and John H. Flanigan, Jr., all of Carthage, for appellants.

Jo B. Gardner, Monett, for respondent.

McDOWELL, Judge.

This is an action for slander. Suit was filed in Barry County, Missouri, later transferred, on change of venue, to the Circuit Court of Lawrence County, where, on October 6th, 1949, it was tried by a jury, resulting in a judgment for plaintiff in the sum of $750.00 actual damages and $2500.00 punitive damages. Defendants appealed to this court.

The petition alleges that on April 27th, 1949, defendant Jenkins, acting in his capacity as agent for corporate defendant, in the presence of plaintiff and plaintiff's wife, willfully, wantonly and maliciously spoke of and concerning plaintiff certain false, defamatory and slanderous words, to-wit: 'I said that Dewey (meaning plaintiff) was a liar and a cheater;' 'They (meaning the furnishing of gas service to the Edwards' home in Pierce City and the installation of a furnace for Josephine Kenney in Monett) were both crooked deals.' The petition, likewise, alleges that, on the same occasion and in the presence of the same parties, defendant Jenkins said: 'You (meaning plaintiff) are a liar and a cheater, and you (meaning plaintiff) have never done your job (meaning for the defendant corporation), and you will have to eat a lot of crow up and down Broadway, (meaning the Main street in Monett, Missouri) from now on.'

The prayer of the petition was for $10,000.00 actual damages and $15,000.00 punitive damages.

In separate answers defendants denied the utterance of the alleged slanderous words and pleaded qualified privilege. The answers denied plaintiff had been damaged. No reply was filed.

At the close of plaintiff's case and at the close of all the evidence, defendants filed motions for directed verdict, which motions were, by the court, overruled.

The jury returned a verdict for plaintiff against both defendants for $4,000.00 actual damages and $8,000.00 punitive damages.

Defendants filed their motion for new trial October 17th, 1949. January 9th, 1950, the court rendered the following judgment on said motion:

'The verdict of the jury being excessive as to actual damages under the evidence, and for punitive damages so excessive as to indicate bias and prejudice against defendants, the defendant's motion for new trial is sustained unless within 10 days plaintiff enters remittitur herein of $3,250.00 actual and $5,500.00 punitive damages, reducing the judgment for plaintiff to $750.00 actual and $2,500.00 punitive damages.'

Plaintiff accepted remittitur and the court, on January 17th, 1950, entered judgment for plaintiff for $750.00 actual damages and $2500.00 punitive damages. From this judgment defendants appealed.

Appellants rely upon two assignments of error for reversal in this case.

1. 'Plaintiff failed to make a submissible case,' and

2. 'The verdict and judgment are excessive.'

In this opinion we will refer to respondent as plaintiff and to the appellants as defendants; where referring to the corporation we will use corporate defendant.

The evidence shows that plaintiff, at the time of the trial, was 52 years of age; had a high school and business college education; that he had sold gas appliances since August, 1925, and had been employed by the corporate defendant in Monett and elsewhere from said date until April, 1949. It was a part of his duty to create good will for the Gas Service Company, to promote the sale of gas-fired appliances and eliminate use of competitive fuels. Defendant Jenkins became District Manager at Monett in 1946. It was his duty to supervise the employees in the Monett district, of whom, he, plaintiff, was one. Mr. Rosenkrans was Mr. Jenkins' superior in the New Business Department, which was plaintiff's department, with office in Kansas City. B. C. Adams was General Manager of the entire Gas Service Company with office in Kansas City. When plaintiff dealt with Mr. Rosenkrans, he did so through Jenkins and his relations with Jenkins had not always been cordial.

To show malice on the part of Jenkins, plaintiff offered evidence of specific business transactions between himself and Jenkins. Plaintiff testified that there was in general effect for some eighteen months prior to the alleged defamation, a so-called dealer-cooperation plan under the terms of which it became the duty of plaintiff and other salesmen employed by corporate defendant, to cooperate with independent dealers in stimulating the sale of gas-fired appliances; that the primary concern of the gas service company was not selling appliances but selling gas. Plaintiff received a commission on certain appliances, which he sold for the gas company and, likewise, for the sale of appliances sold through dealers providing certain prerequisites were observed, to-wit: the filing of a prospect card with corporate defendant and the purchase of a gas-fired appliance by the prospect within a stipulated time after the filing of the card. The principal dealers, operating under the cooperation plan, in plaintiff's territory were Mr. Worm, Mr. Bradley and Mr. Caudle. These dealers, likewise, sold electric heating equipment and butane-fired equipment. The gas company did not take trade-ins on appliance sales and, in those instances, where a prospective customer had a used appliance to trade in, the prospect was referred to a dealer and usually the dealers selling an appliance made the installation; that the gas company serviced appliances sold by both it and by dealers, except Mr. Worm liked to service his own appliances; that, at the end of a given monthly period, plaintiff would submit to the bookkeeper in the office of corporate defendant at Monett, a list of sales, whether company sales or dealer sales, on which he was claiming commission; that this list would be supplemented by a statement made by the dealers substantiating the fact that sales were made and verifying the installation of the equipment sold in the home or place of business of customer; the dealer was supposed to make out the monthly report of sales and installations, under the cooperation plan which was filed with defendant corporation and which was checked against plaintiff's claim for commissions in order to substantiate the same. The evidence shows that the dealers did not like to make out these reports and, ordinarily, plaintiff made them; that plaintiff's right to a commission on a given sale depended on the establishment of the facts, that plaintiff had filed a prospect card on the purchaser, within a limited time prior to making the sale; that a sale had been made to the prospect listed and that the appliance sold was one on which plaintiff was entitled to a commission. This information was derived from the prospect cards submitted by plaintiff and the list of sales submitted by the dealer.

The evidence shows that defendant Jenkins refused to pay plaintiff a commission on a sale of a gas-fired heater to one Burnett, on the ground that the appliance sold was not a gas-fired heater; that, after investigation, the commission was finally paid. This was a dealer's sale made through one, Buxton, a dealer in Pierce City; Jenkins questioned plaintiff's right to a commission sale on the Burnett sale because there was a question in his, Jenkins' mind, concerning whether the appliance sold was a gas appliance; he thought it was an electric appliance, under which sale plaintiff would not be entitled to a commission. Later, plaintiff obtained a statement from the dealer, Buxton, that the appliance was gas-fired, and the commission was paid. It is plaintiff's contention that the monthly reports made for the purpose of determining his rights to commissions should be accepted without auditing or questioning. Plaintiff testified this had always been done before. The evidence shows that the cooperation plan had not been in effect only since the war or about eighteen months and, during this entire time, Jenkins had been the Division Supervisor of the department in which plaintiff worked.

Plaintiff testified that Jenkins criticized him for drinking coffee during business hour, stating that plaintiff spent too much time in the coffee shop.

Plaintiff testified concerning a Claude Edwards deal at Pierce City. This family was constructing a new home in Pierce City. Defendant Jenkins sent plaintiff to see them about a sale of a gas-fired furnace. Under plaintiff's employment he did not receive a commission on the sale of furnaces. Plaintiff, together with one, Balmas, foreman of the company's service department, checked a map of Pierce City to determine whether or not gas mains extended to the location of the Edwards home and came to the conclusion that the main was just across the street from the home. They so advised Edwards and sold and installed a gas furnace in the home. It was later discovered that the gas main was a block away from the Edwards home and, in order to connect the furnace installed with the gas line it was necessary to extend the line. Jenkins told plaintiff that he, plaintiff, had made a mistake in reading the city map, which was inexcusable. Plaintiff later rechecked the map of Pierce City and found that it was correct and that he had misread it. The evidence shows that, as a result of this mistake by plaintiff in misreading the map, the corporate defendant had been put to extra expense in order to extend the gas line so as to service the Edwards home; that the corporate defendant, in spite of the expense entailed in extending its mains, followed up the commitment which plaintiff had made and furnished the home with gas service. Plaintiff admits that it was Jenkins' duty as his immediate superior to criticize and correct plaintiff, but that he resented Jenkins' attitude concerning the transaction.


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6 cases
  • Manning v. McAllister
    • United States
    • Missouri Court of Appeals
    • April 28, 1970
    ...employee that he had made crooked deals, and was a liar and a cheat, made in the presence of the employee's wife, Rauch v. Gas Service Co., Mo.App., 235 S.W.2d 420; a statement by a store detective to an employee, made in the hearing of others, that the employee had stolen the coat of a fel......
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