Shearin v. Fletcher/Mayo/Associates, Inc.

• Citation: 687 S.W.2d 198
• Decision Date: 18 December 1984
• Docket Number: No. WD,WD
• Parties: Kenneth W. SHEARIN, Appellant, v. FLETCHER/MAYO/ASSOCIATES, INC., Respondent. 35150.
• Court: Court of Appeal of Missouri (US)

Page 198

687 S.W.2d 198

Kenneth W. SHEARIN, Appellant, v. FLETCHER/MAYO/ASSOCIATES, INC., Respondent.

No. WD 35150.

Missouri Court of Appeals,

Western District.

Dec. 18, 1984.

Kranitz & Kranitz, P.C., St. Joseph, for appellant.

R. Dan Boulware, Watkins, Boulware, Lucas & Miner, St. Joseph, for respondent.

Before CLARK, P.J., and DIXON and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

This is the second appeal for this breach of an employment contract case. The first trial resulted in a jury verdict for Shearin the plaintiff. Fletcher/Mayo, the defendant appealed and the case was remanded for a new trial because of instructional error. See Shearin v. Fletcher/Mayo/Associates, Inc., 647 S.W.2d 127 (Mo.App.1983). The judgment on the second jury verdict, this time for the defendant, Fletcher/Mayo, is now appealed by Shearin. For this opinion abbreviated facts are set out. For more detail see Shearin I, supra.

After some negotiations, Fletcher/Mayo, an advertising agency, successfully recruited Shearin to move from Ohio to St. Joseph, Missouri to be a Vice President and Creative/Marketing Director of their advertising department. The subsequent suit dealt with an employment contract requested by Shearin and drafted by Fletcher/Mayo. The original contract had a three year term of employment, but also contained a clause that allowed the agreement to be terminated by either party at any time for justifiable cause.

There was some conflicting evidence as to how and when Shearin returned the contract, which had been pre-signed by Fletcher/Mayo, but when he did, Shearin had changed the termination clause to in effect give himself a three year non-terminable contract of employment. Shearin had signed the contract and initialed the change. Fletcher/Mayo never initialed the change but put the altered contract into Shearin's employment file. After working for ten months Shearin was terminated because he was not working well with other departments and because of management's dissatisfaction with his performance. The ultimate issue for the jury was whether or not a contract or obligation existed giving Shearin a cause of action for damages for the portion of the three years he could not work.

Shearin's first point concerns the form of certain questions asked by Fletcher/Mayo of its own witnesses. Although a substantial question exists as to the timeliness and specificity of objections, without preservation this court will assume that Shearin preserved this question on appeal by timely objection at trial. Shearin cites Holliman v. Cabanne, 43 Mo. 568, 570 (1869) for the proposition that witnesses should not be permitted to give their opinions upon the truth of statements by other witnesses; as an example, counsel for Fletcher/Mayo in questioning its president said that Mr. Shearin had stated the reason for his discharge was due to the egotistical concerns of Mr. Mayo and asked Fletcher if he felt that were true. However, the Holliman court went on to say that witnesses "may do the same thing in effect by denying the fact stated." It is also interesting that the Missouri Supreme Court did not reverse the trial court's decision to let a witness answer whether a previous witness's statement was true or not. Instead the court held that the question was simply informal, and its answer could not have materially affected the case.

The other two cases cited for this proposition, Henson v. Kansas City, 277 Mo. 443, 210 S.W. 13, 17 (1919), and Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122 (1952) both dealt with expert medical witnesses. Not only are these cases not on point since the present case dealt with lay witnesses, but the law has changed since Henson. Even the Eickmann case held that "the province of the jury is to hear all evidence including opinion evidence, to weigh it all, and to decide the issues."

When Shearin first objected to the form of the question, the trial court instructed defense counsel to form his questions as hypotheticals. Shearin argues that this form was still improper, but cites no cases in support of that contention. The ultimate decision the jury had to make in this case was whether Shearin or Fletcher/Mayo was telling the truth about dealings with the employment contract. The jury can weigh the believability of witnesses' opinions. The form of the question as a hypothetical did not materially affect this case. The request for relief under Shearin's first point is denied.

Shearin's second point which contains several arguments, and covers one full page in his brief is difficult to follow. Further complicating the matter is his discussion of still another argument within the argument portion. What seems to be the real matter alleged as error is the inclusion of Fletcher/Mayo's converse, No. 5, as a tail to Shearin's verdict director, No. 4 which reads as follows:

INSTRUCTION NO. 4

Your verdict must be for plaintiff if you believe:

First, plaintiff and defendant entered into an agreement whereby plaintiff agreed to become an employee as vice-president of defendant and to perform the duties of Creative/Marketing Director for an initial employment term of three years at an annual salary of $37,500.00, beginning 16 April 1979; the agreement could not be terminated during the initial three-year term; and defendant agreed to employ plaintiff according to those terms; and

Second, defendant accepted the agreement in the terms outlined in paragraph First above; and

Third, plaintiff performed his agreement; and

Fourth, defendant failed to perform its agreement; and

Fifth, plaintiff was thereby damaged unless you believe Plaintiff is not entitled to recover by reason of Instruction No. 5.

INSTRUCTION NO. 5

Your verdict must be for the Defendant if you believe the Defendant, by Rod Fletcher and/or Glenn Mayo, told the Plaintiff that the Defendant was not agreeable to the change made by the Plaintiff to Paragraph 7 of the alleged Employment Contract.

He says the evidence showed acts of the company as amounting to an estoppel, (letting him come to St. Joseph, starting work and electing him a vice-president) so the company's converse about telling Shearin it could not accept the new termination clause really did not converse the elements of his case. The problem with this argument is the case was pleaded and the jury was instructed on whether there was a contract between the parties. This is borne out by an affidavit of a juror which gave rise to the unusual twist in point 5, infra, that says the jury was trying to decide, "whether the 'contract' was a contract."

With regard to the question of the doctrine of estoppel, this court did say in Shearin I, 647 S.W.2d at 129 the jury could find that estoppel would apply under the facts. But it was the responsibility of Shearin to plead that theory in the second trial. Shearin claims that the following language of paragraph II of his second amended petition specifically pleads estoppel:

That on or about 16 April 1979, plaintiff was employed in the position of Vice-President and Creative Director of defendant, under written contract, copy of which is attached hereto and a part hereof by reference; that in such capacity, plaintiff faithfully served defendant and its best interests, and promoted the business of defendant to the exclusion of 11 other interests; and that defendant accepted the benefits of such contract and the labor of plaintiff.

In Patterson v. State Board of Optometry, 668 S.W.2d 240, 243 (Mo.App.1984) the court set out the three elements necessary for the doctrine of estoppel: 1) an admission, statement, or act inconsistent with a claim afterward asserted and sued upon, 2) action by the reliant party on faith of such admission, statement or act, and 3) injury to the reliant party resulting from allowing the first party to contradict or repudiate such admission, statement or act. Even reading Shearin's petition in a light most favorable to him, those elements are not evident. Since Shearin failed to affirmatively plead estoppel, he cannot assert the doctrine at this time.

The second issue under Point II is whether Fletcher/Mayo's Jury Instruction No. 5 (set out supra) met the elements of an affirmative defense as required by MAI 33.01, and hypothesized an ultimate issue which would defeat Shearin's claim.

Since Shearin did not plead estoppel, this court need only be concerned with the elements of a valid contract. Instruction No. 5 addresses the ultimate issue of whether Fletcher/Mayo rejected the counteroffer made by Shearin when he changed the language of the contract. Shearin contends that the ultimate issue is whether he understood that by changing the contract he had in fact rejected the original offer, and was thus working without a formal contract. It is basic that everyone is conclusively presumed to know the law, so it is presumed that Shearin knew the effect of his changing the contract. The Missouri Supreme Court aptly discussed this in Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82, 89 (1936), when it said:

[T]he law does not read the ignorant and unwary out of the pale of its protecting and remedial influence; but the practical administration of justice has rendered it expedient to set up certain standards, and the law, which everyone is conclusively presumed to know, although the courts themselves often experience considerable difficulty and labor in finally determining what the law of a given case is, recognizes established principles of conduct governing men in their commercial transactions.

Shearin's contention is therefore unfounded and Instruction No. 5 was properly submitted to the jury.

Shearin's third point concerns Jury Instruction No. 4. He claims this verdict directing instruction should not have contained a "tail" which told the jury if it believed Instruction No. 5 it must find for the defendant. Shearin points to MAI 33.01 which says "there is no requirement" that this tail be used...