Roberts v. Emerson Elec. Mfg. Co., 48988

• Decision Date: 11 December 1962
• Docket Number: No. 1,No. 48988,48988,1
• Citation: 362 S.W.2d 579
• Parties: 46 Lab.Cas. P 50,698 Harry H. ROBERTS, Respondent, v. The EMERSON ELECTRIC MANUFACTURING COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 579

362 S.W.2d 579

46 Lab.Cas. P 50,698

Harry H. ROBERTS, Respondent, v. The EMERSON ELECTRIC MANUFACTURING COMPANY, a corporation, Appellant.

No. 48988.

Supreme Court of Missouri, Division No. 1.

Dec. 11, 1962.

Harry H. Roberts pro se.

R. H. McRoberts, R. H. McRoberts, Jr., St. Louis, for defendant-appellant. Bryan Cave, McPheeters & McRoberts, St. Louis, of counsel.

HOUSER, Commissioner.

Harry Roberts sued The Emerson Electric Manufacturing Company for failure to comply with the service letter statute, Sec. 290.140 RSMo 1949, V.A.M.S. At the first trial plaintiff recovered judgment for $17,800, reversed on appeal for error in an instruction. Roberts v. Emerson Electric Manufacturing Co., Mo.Sup., 338 S.W.2d 62. Reference is made to that opinion for the general factural background. A second trial resulted in a jury verdict for defendant. The trial court granted plaintiff a new trial and defendant has appealed from the order sustaining plaintiff's motion for a new trial.

We have jurisdiction, since plaintiff prays in his petition for $50,000 actual and $50,000 punitive damages.

The trial court granted a new trial 'for the reasons stated in Paragraphs 10, 11, 12, 13, 14, 15, 16 and 19 of Plaintiff's Motion for New Trial,' which follow:

'10. Because the Court erred in allowing defendant to introduce, over the objection of the plaintiff, incompetent, irrelevant and immaterial evidence offered by the defendant.

'11. Because the Court erred in refusing to strike out and to instruct the jury to disregard, upon motion of the plaintiff incompetent, irrelevant and immaterial evidence offered by the defendant and received in evidence.

'12. Because the Court erred in excluding, upon objection of defendant, competent, relevant and material evidence offered by the plaintiff.

'13. Because the Court erred in striking out and instructing the jury to disregard, upon motion of defendant, competent, relevant and material evidence offered by the plaintiff and received in evidence.

'14. For the reason that the court erred in giving and reading to the jury, over plaintiff's objections, an erroneous, improper, illegal and prejudicial instruction, offered by the defendant, said instruction being numbered 3 for the reason that said instruction erroneously instructed the jury on an issue not relative or pertinent to said case and which instruction was outside of the issues involved therein; that said instruction was highly prejudicial and injected an issue in said case which was not applicable or relevant thereto.

'15. That the court herein should grant a new trial for the further reason that plaintiff's cause of action was based upon a statute which required the defendant corporation to furnish plaintiff with a letter truly stating the reasons or cause for plaintiff's discharge or leaving the defendant's service. And, that in the testimony of defendant's witness, G. F. Craig, it was revealed that said witness was confused at the time of the writing of such letter and did not know the true reason for discharging the plaintiff; that defendant's counsel, R. H. McRoberts, in his summation or closing argument, told the jury that they, meaning Emerson Electric Manufacturing Company, G. F. Craig and others concerned therewith did not know who had falsified certain charts mentioned in the evidence or who had destroyed a certain chart mentioned in the evidence as Chart 'B'.

'16. That the plaintiff denied categorically that he had neither (sic) destroyed a chart or falsified a chart and that thereupon the burden of proof of the destruction of a chart or the falsification of another chart was upon the defendant and that said defendant failed to carry said burden and further admitted both in the testimony of G. F. Craig and in the closing argument of R. H. McRoberts that they, meaning the Emerson Electric Manufacturing Company and G. F. Craig, did not know who had destroyed said chart or falsified said other chart; that by reason thereof the defendant wholly failed to refute plaintiff's evidence concerning said charts.

'19. The court erred in admitting evidence in chief of defendant, over the objections of plaintiff concerning the relationship between the plaintiff and his attorney or other attorneys; that said evidence was highly prejudicial, inflammatory and immaterial to any issue involved in the case; that said evidence prejudiced the jury against the plaintiff and bore no relation to the issue in the case i. e. whether the letter sent to plaintiff truly (emphasis ours) stated the cause for plaintiff's discharge.'

That portion of the order of the trial court assigning paragraphs 10-13, both inclusive, as grounds for granting a new trial does not meet the requirement of Sec. 510.370, RSMo 1959, V.A.M.S., and Sup.Ct.Rule 75.01, V.A.M.S., that every order granting a new trial specify the grounds therefor. The purpose of the statute and rule is not served or fulfilled by the assignment of such general and unspecific 'grounds.' They furnish no significant information either to defendant or to this Court as to the real basis of the court's action. Johnson v. Kansas City Public Service Co., 360 Mo. 429, 228 S.W.2d 796. In this situation, under Sup.Ct.Rule 83.06((b), there is a presumption that the trial court erroneously granted the motion for new trial on these grounds, and the burden of supporting the action of the trial court is placed upon respondent. Johnson v. Kansas City Public Service Co., supra. Respondent failed to meet that burden. In his 45-page brief respondent makes no effort to support the action of the trial court in granting a new trial for improperly receiving or refusing to exclude evidence offered by defendant, or for improperly excluding evidence offered by plaintiff, or for improperly striking evidence offered by plaintiff and admitted in evidence (except as to Paragraph 19, which we consider fully hereinafter).

Of the grounds which are sufficiently specific to merit consideration, Paragraph 14 assigns error in the giving of Instruction 3, which follows: 'The Court instructs the jury that this action is not one for damages for wrongful discharge of plaintiff by defendant, and the question as to whether plaintiff was rightfully or wrongfully discharged by defendant is not material to any of the issues in this action and should not be considered in your deliberations.' Instruction 3 was a cautionary instruction intended to guard against the consideration of a false issue. 'It is not only the office of instructions to inform the jury as to the law of the issues raised, but, where the evidence is of a character as might easily lead to the raising of a false issue, the court ought to guard against such an issue by appropriate instructions.' Estes v. Desnoyers Shoe Co., 155 Mo. 577, 56 S.W. 316. Some of plaintiff's evidence was of that character. For instance, plaintiff emphasized his long tenure of employment with Emerson (31 years); his receipt of awards for meritorious suggestions during his employment; that he was discharged through a conspiracy between the company and the union; that at the time of his discharge plaintiff was suffering from pneumonia and diabetes and could not appear and defend himself at the final hearing on the charges made against him; that he was nevertheless proceeded against in his absence; that before discharge he was earning about $7,000 a year; that after discharge he went to more than fifty places of employment looking for work, but was unable to get a job. Instruction 3 was properly given in order to direct the jury away from the false issue of wrongful discharge.

The grounds stated in Paragraphs 15 and 16 are insufficient as a basis for the granting of a new trial. The transcript reveals no confusion on the part of defendant's Mr. Craig at the time he wrote the service letter, or any failure on his part to know and understand the true reason for plaintiff's discharge, or who had destroyed the one chart and falsified the other. He testified clearly and without any confusion to the following: The plant engineer and his assistant showed him two charts, Chart C, which was...