S. P. Personnel Associates of San Antonio, Inc. v. Hospital Bldg. & Equipment Co., Inc.

• Decision Date: 15 April 1975
• Docket Number: No. 35725,35725
• Citation: 525 S.W.2d 345
• Parties: S. P. PERSONNEL ASSOCIATES OF SAN ANTONIO, INC., Respondent (Plaintiff), v. HOSPITAL BUILDING & EQUIPMENT CO., INC., a corporation, Appellant (Defendant and Third-Party Plaintiff), v. Michael ZADICK, Respondent (Third-Party Defendant). . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 345

525 S.W.2d 345

S. P. PERSONNEL ASSOCIATES OF SAN ANTONIO, INC., Respondent (Plaintiff), v. HOSPITAL BUILDING & EQUIPMENT CO., INC., a corporation, Appellant (Defendant and Third-Party Plaintiff), v. Michael ZADICK, Respondent (Third-Party Defendant).

No. 35725.

Missouri Court of Appeals St. Louis District, Division Three.

April 15, 1975.

Motion for Rehearing or Transfer Denied June 26, 1975.

Sestric, Sestric, Sweet & McGhee, W. Thomas McGhee, St. Louis, for appellant.

Lawrence Sanders, St. Louis, for respondent (plaintiff).

Lashly, Caruthers, Thies, Rava & Hamel, Darold Crotzer, Jr., Steven M. Stone, St. Louis, for respondent (third-party defendant).

GUNN, Judge.

This suit is founded upon a claim by an employment agency for its fee for services rendered in the procurement of a national sales manager for an employer. The employer counterclaimed for salary paid to the sales manager and also filed a third-party action against the sales manager for damages. The trial court dismissed the employer's third-party petition, and a jury returned a verdict in favor of the employment agency for $3,000. The employer has appealed asserting that the trial court erred in dismissing the third-party petition and in the giving of instructions. We affirm the judgment.

On appeal we review the evidence in the light most favorable to plaintiff-respondent. Ritter v. Lindberg Acoustics, Inc., 501 S.W.2d 207 (Mo.App.1973). This case had its inception with defendant-appellant Hospital Building and Equipment Co., Inc. placing an advertisement in the Wall Street Journal seeking an experienced hospital equipment sales manager for a position in St. Louis. Plaintiff-respondent S. P. Personnel Associates of San Antonio, Inc. responded to the advertisement and informed defendant that it represented Michael Zadick of Memphis, Tennessee, who apparently possessed the requisite qualifications for the sales manager defendant was seeking. Plaintiff forwarded a resume of Zadick's qualifications to defendant and discussed with defendant the possible placement of Zadick. Coincidently with plaintiff's sending of the resume, Zadick also sent his resume to defendant, but in discussions with plaintiff, defendant stated that it intended to respect the fact that plaintiff was the first to submit the resume and would therefore deal with plaintiff. According to plaintiff it was agreed that defendant would pay a placement fee of 15 percent of the employee's first year's salary, to be paid if he were employed by defendant and after working the first thirty days of employment. If for any reason the employment terminated before the expiration of thirty days, the plaintiff would receive no fee. Defendant interviewed Zadick on two occasions, and he was hired as sales manager at an annual salary of $30,000 plus a $5,000 bonus. After working two or three weeks, Zadick indicated to defendant that his wife did not want to move to St. Louis from Memphis and that he might not be able to continue his employment. Defendant tried to persuade Zadick to stay, as defendant was pleased and satisfied with his work. However, Zadick left defendant's employment after having worked six weeks and drawing $5,234.55 in salary and expenses. During his period of employment with defendant, Zadick with the approval of defendant, commuted between St. Louis and Memphis, but without defendant's approval he apparently also retained his job with his former employer.

Plaintiff made claim for a placement fee of $4,500 based on 15 percent of Zadick's annual salary rate of $30,000, and upon defendant's refusal to pay, plaintiff brought suit based on express contract for $4,500. Defendant counterclaimed, alleging that plaintiff misrepresented to defendant that Zadick was available for full-time employment when, in fact, he was not. Defendant also filed a third-party action against Zadick seeking to implead Zadick to recover reimbursement for salary and expenses paid Zadick and for any sums adjudicated against defendant in favor of plaintiff arising out of plaintiff's action. Zadick's motion to dismiss the third-party petition was granted by the trial court, and the jury returned a verdict in favor of plaintiff for $3,000.

On appeal, defendant contends that the trial court erred in dismissing the third-party petition against Zadick. Defendant also contends that the trial instructions were erroneous in that: 1) plaintiff's instructions failed to negate defendant's affirmative defense of misrepresentation by plaintiff that Zadick was available for full-time employment 2) the instruction given for plaintiff constituted a submission in quantum meruit when the pleadings and proof were of an alleged expressed contract; 3) the trial court refused an instruction defining the word 'hire.'

We first consider the dismissal by the court of defendant's third-party petition against Zadick. Our Supreme Court's decision in State ex rel. Green v. Kimberlin, 517 S.W.2d 124 (.mo. banc 1974), is a beacon on this issue. Rule 52.11, V.A.M.R., governs defendant's third-party petitions in that it allows a defendant to bring in a third-party 'who is or may be liable to him for all or part of the charges claimed against him.' In Kimberlin it was said that '(i)f the liability of the third-party defendant is not dependent on the liability of the third-party plaintiff' the court would have no jurisdiction over the petition, since it would not be within the ambit of Rule 52.11. Thus, under Kimberlin, if the third-party plaintiff (Defendant Hospital Building Equipment) could proceed and recover against the third-party defendant (Zadick), even if it were to win in the suit brought by the plaintiff (S. P. Personnel), the petition would not be covered by Rule 52.11. Defendant could proceed against Zadick for salary payments even if it were determined that defendant did not have to pay the placement fee to plaintiff. Therefore, the third-party petition on this issue should have been dismissed under Kimberlin for lack of jurisdiction. Further, the placement fee issue is based on an alleged contract between plaintiff and defendant with no suggestion that Zadick was a party to the contract. Therefore, Zadick could not be liable for any part of plaintiff's claim against defendant, and even if possible liability existed for Zadick to defendant for salary and expenses, such liability would not be dependent on plaintiff's claim. It is manifest from the following language of Kimberlin that defendant's third-party petition was not within Rule 52.11 and was properly dismissed:

'Whether the third-party claim is based on a different theory from that alleged in the original complaint and whether the third-party petition introduces new factual issues are factors which are properly considered by a trial judge in determining whether he should exercise his discretion and dismiss the claim, but they are not determinative of the jurisdictional issue of whether the third-party defendant is or may be liable to the defendant for all or part of the plaintiff's claim. What is determinative is whether the facts set forth in the third-party petition constitute a basis for a theory by which the third-party defendant would be liable to the third-party plaintiff if such third-party plaintiff is found to be liable to the original plaintiff. If the liability of the third-party defendant is not dependent on the liability of the third-party plaintiff, the claim would not come within the provision of Rule 52.11.' State ex rel. Green v. Kimberlin, supra at 127.

Defendant next contends that plaintiff's verdict directing instruction was in error as it did not negate defendant's affirmative defense of misrepresentation. Defendant, on appeal, asserts that plaintiff was guilty of misrepresentation in two regards: 1) that Zadick had misrepresented his qualifications in his resume and that by sending a resume of Zadick's qualifications to defendant, plaintiff also made misrepresentation Murray v. State, 475 S.W.2d 67, 70 (Mo.1972). represented to defendant that Zadick was available for full-time exclusive employment with defendant when, in fact, he was not.

Where facts appear to support a pleaded affirmative defense, it is error to omit the tail of plaintiff's verdict directing instruction which negates that defense. Moore v. Ready Mixed Concrete Co., 329 S.W.2d 14 (Mo. banc 1959); Fowler v. Laclede Gas Co., 488 S.W.2d 934 (Mo.App.1972). But where the evidence does not support such a defense, the plaintiff's verdict director need not negate that defense. Linwood State Bank v. Lientz, 413 S.W.2d 248 (Mo.1967); Fowler v. Laclede Gas Co., supra. We find that defendant's evidence was not such as to require the giving of the affirmative defense tail to plaintiff's verdict director. We observe that the affirmative defense and counterclaim as pleaded by plaintiff alleged only misrepresentation as to Zadick's availability. The assertions of misrepresentation as to Zadick's qualifications as set forth in the resume are outside the scope of the pleadings, and we do not consider them. The claim of alleged misrepresentation that Zadick was available for full-time exclusive employment with defendant is without merit. There is nothing in the record to substantiate that plaintiff represented that Zadick was available for full-time exclusive employment. Plaintiff cannot be found to guarantee Zadick's future intentions, and fraud cannot be predicated on a mere promise to act in the future even if accompanied by a present intention not to perform it. Such a promise is not a misrepresentation of an existing fact. Godwin v. Dinkler St. Louis Management Corp., 419 S.W.2d 70 (Mo.1967); Yerington v. Riss, 374 S.W.2d 52 (Mo.1964); Brennaman v. Andes & Roberts Bros. Constr. Co., 506 S.W.2d 462 (Mo.App.1973). Zadick's expressed intention to be available for employment was not shown to be false at the time it was made. Therefore, a charge of fraud or misrepresentation...