Schmidt v. Central Hardware Co.

Decision Date06 November 1974
Docket NumberNo. 35749,35749
Citation516 S.W.2d 556
Parties88 L.R.R.M. (BNA) 2675, 75 Lab.Cas. P 53,498 Jo Anne SCHMIDT, Plaintiff-Respondent, v. CENTRAL HARDWARE COMPANY, a corporation, Defendant-Appellant. . Louis District, Division Three
CourtMissouri Court of Appeals

James K. Pendleton, St. Louis, for defendant-appellant.

George R. Gerhard, St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

This is an appeal by defendant from a circuit court judgment of the City of St. Louis, Missouri, entered on a jury verdict, which award plaintiff both actual and punitive damages because defendant failed, on request, to furnish plaintiff a service letter. § 290.140, RSMo 1969, V.A.M.S.

From the evidence we find that plaintiff worked for defendant for five years. She began as a mail room clerk and later became the mail room supervisor. Shortly after her promotion to supervisor, plaintiff, because of a fall, filed a Workmen's Compensation claim. Thereafter, she fell from grace; she was constantly watched and criticized, and on April 2, 1970, she was terminated. The reason assigned for her discharge was that plaintiff constantly was away from her assigned area and misrouted the mail.

On April 6, 1970, plaintiff wrote a letter to defendant requesting a service letter that would show the duties performed by her, her length of service and a true statement of the cause as to why she left.

After her discharge, plaintiff sought employment at several companies, but she remained out of work until April, 1971. While no prospective employer refused plaintiff employment because she did not have a service letter, there is evidence, curiously enough, developed by the defendant on cross-examination, that plaintiff had been hindered by the lack of a service letter in obtaining employment. In other words, since plaintiff had been fired, she was denied the opportunity of filing an application because of a lack of a 'service letter or reference.'

Since it failed to send a service letter, defendant admits liability at least as to nominal damages. Other evidence, if needed, will be narrated in the opinion.

Initially, two questions are posed (1) is there evidentiary support for actual damages, and (2) if not, is defendant's admission of liability for nominal damages disproportionate to the punitive damage award of $20,000, voluntarily reduced to $15,000 by plaintiff?

Section 290.140, RSMo 1969, 1 passed in 1905 requires every corporation doing business in Missouri to issue to every employee who leaves the corporation after ninety days' service, a service letter. Issued upon the request of the employee, this letter must be signed by either the superintendent or manager of the corporation. It must set forth the duties performed by the employee, his length of service, and truly state the cause for the employee's leaving. Failure to issue such a letter upon request is not only a misdemeanor but also gives rise to a cause of action for damages on the part of the employee. Nominal damages are recoverable upon a mere showing of liability, along with punitive damages, where there is evidence of either actual or legal malice. Bubke v. Allied Building Credits, Inc., 380 S.W.2d 516, 519, 522 (Mo.App.1964); Chrisman v. Terminal R. Ass'n of St. Louis, 237 Mo.App. 181, 157 S.W.2d 230, 235 (Mo.App.1942).

To recover substantial actual damages, plaintiff has to prove that either she sought and was refused employment by reason of her not having a service letter, Booth v. Quality Dairy Co., 393 S.W.2d 845, 848 (Mo.App.1965); Bubke v. Allied Building Credits, Inc., supra, or she was hindered in securing employment, Stephens v. Lever Bros. Co., 155 S.W.2d 540, 542 (Mo.App.1941). In our opinion, the refusal of prospective employers to accept plaintiff's application for work entitled plaintiff to substantial actual damages. Yet our inquiry may not end here.

Generally, actual damages are compensation for actual loss or injuries, Chappell v. City of Springfield, 423 S.W.2d 810, 814 (Mo.1968) and must be proved with reasonable certainty, rather than left to speculation, Warner v. Southwestern Bell Telephone Co., 428 S.W.2d 596, 604 (Mo.1968). However, in our opinion, substantial actual damages under the service letter statute involves two factors (a) the period of time for which lack of employment or hinderance from obtaining employment is to be compensated and (b) the salary rate at which the loss should be compensated.

From the amount of the actual damages verdict, it is apparent to us that the jury compensated plaintiff for the entire period of her unemployment, i.e., at the hourly rate paid by defendant at the time of her discharge (52 40 $2.85). Such a formula is inconsistent with the rationale underlying actual damages, generally and specifically, in service letter cases.

In the case of service letters, actual damages are to be awarded to compensate loss, if any, sustained by reason of a plaintiff's not having a service letter. Stated another way, defendant's failure to furnish plaintiff the statutory service letter must be the proximate cause of her damages. Consequently, besides proof that she was denied or hindered in obtaining employment by reason of not having a service letter, plaintiff has the burden to establish a reasonable basis from which her actual loss may be calculated. Here plaintiff proved that she was unemployed for one year; however, the record is barren as to the date she went to any specific prospective employer who refused her application because she had no 'service letter or reference.' If one of these dates had been shown, computation would commence at that point. But, even if we assume for discussion the date to have been shown, plaintiff's evidence was subject to another vice. This for the reason that no evidence was produced to show what the going salary rates were at any of her prospective employers who refused to accept her application. Reduced to its simplest terms, we hold that in a service letter case for substantial actual damages it is not enough for the claimant to show that he was either refused employment or hindered in obtaining employment because of a lack of a service letter, but he must also show (1) the approximate date when he was either refused employment or hindered, i.e., his application was unacceptable because of a lack of a service letter; and (2) the salary rate of the job of his prospective...

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23 cases
  • Northern v. McGraw-Edison Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 5, 1976
    ...Dairy Co.,396 F.2d 652, 661 (8th Cir. 1968), the extent of damage must be proved with reasonable certainty. Schmidt v. Central Hardware Co., 516 S.W.2d 556, 559 (Mo.App.1974). The jury is vested with broad discretion in establishing the amount of damages as a review and weighing of facts ar......
  • Moreland v. Columbia Mut. Ins. Co.
    • United States
    • Missouri Court of Appeals
    • December 1, 1992
    ...measured by the extent of the injury, punitive damages are measured by the extent of the malice of the actor. Schmidt v. Central Hardware Company, 516 S.W.2d 556, 560 (Mo.App.1974); Holcroft v. Missouri-Kansas-Texas R. Co., supra at 163; Compare MAI 4.01 (actual with MAI 10.01-10.03 (puniti......
  • Brooks v. Woodline Motor Freight, Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 2, 1988
    ...Comerio v. Beatrice Foods Co., 616 F.Supp. 1423, 1426 (E.D.Mo.1985) (Missouri service letter statute); Schmidt v. Central Hardware Co., 516 S.W.2d 556, 560 (Mo.Ct.App.1974). "[F]ailure to issue [a service letter], standing alone, will not warrant an award of punitive damages." Schilligo v. ......
  • Easley v. Empire Inc.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 24, 1985
    ...is such that the jury could infer an intent by Empire to frustrate Easley in the exercise of her rights. See Schmidt v. Central Hardware Co., 516 S.W.2d 556, 560 (Mo.App.1974) (evidence, if believed by jury, would support conclusion that corporation's failure to issue a service letter was t......
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1 books & journal articles
  • Section 11 When Awarded
    • United States
    • The Missouri Bar Damages Deskbook Chapter 1 Damages Generally
    • Invalid date
    ...statutory service letters, Rotermund v. Basic Materials Co., 558 S.W.2d 688, 691 (Mo. App. E.D. 1977); Schmidt v. Cent. Hardware Co., 516 S.W.2d 556, 560 (Mo. App. E.D. 1974); Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933, 941 (Mo. App. W.D. 1935); recovery on replevin bonds, Glidewell v.......

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