Slusher v. Mid-America Broadcasting, Inc., MID-AMERICA

• Citation: 811 S.W.2d 443
• Decision Date: 14 June 1991
• Docket Number: No. 16771,MID-AMERICA
• Parties: Theodore SLUSHER, Plaintiff-Appellant, v.BROADCASTING, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 443

811 S.W.2d 443

Theodore SLUSHER, Plaintiff-Appellant, v. MID-AMERICA BROADCASTING, INC., Defendant-Respondent.

No. 16771.

Missouri Court of Appeals,

Southern District,

Division Two.

June 14, 1991.

Stephen P. Carlton, Johnston & Carlton, Carthage, for plaintiff-appellant.

William J. Lasley, Flanigan, McCanse & Lasley, Carthage, for defendant-respondent.

HOGAN, Judge.

This is an action for breach of a contract of employment. Plaintiff Theodore Slusher served as a regional sales manager for the defendant and, prior to his discharge on October 31, 1984, had procured orders for advertising to be aired on the defendant's television station, KSNF-TV in Joplin, Missouri. The advertising in question was run in November and December of 1984 and January 1985. The plaintiff's claim, generally stated, is that he is entitled to a commission on the advertising which was aired in November, December and January because he procured the contracts for that advertising before his discharge on October 31. Defendant maintains that the plaintiff actually contracted to furnish a species of service which could not be provided if the plaintiff was not the defendant's employee.

The cause was tried to the court sitting without a jury. Judgment for plaintiff in the amount of $599.77 was entered, plus prejudgment interest at the statutory rate from and after October 31, 1984. No complaint is made of the judgment for $599.77 nor of the allowance of prejudgment interest. The plaintiff's sole point on this appeal is that he is entitled to commissions in the amount of $8,677.23 which he earned before he was discharged. The merits of the appeal depend primarily upon the construction of plaintiff's contract of employment and, to a lesser extent, upon the nature of the services he was employed to provide for the defendant's advertisers.

We must first consider that part of plaintiff's contract of employment which addresses his compensation. The contract is in writing and was received as Defendant's Exhibit "A". This agreement is as follows:

"KSN SALES DEPARTMENT COMPENSATION AGREEMENT

There are two plans whereby a KSN Salesperson may be compensated. Salespersons may select which plan will be used. The two plans are:

Plan I. Sales commission payable upon receipt of client's payment to KSN.

Plan II. Approximate estimated amount of commission earned during prior month may be advanced to salesperson prior to client's payment to KSN with the following stipulations:

A. If KSN has not received payment from client on sales with respect to which commissions have been advanced after 90 days, one-half of the advanced amount pertaining to that delinquent account will be deducted from the next monthly advance to the salesperson; the remaining portion of the advanced commission may be deducted when in the opinion of KSN management that [sic] possible and reasonable avenues of collection have been exhausted.

B. When client payments of delinquent amounts are made after advanced commission has been deducted, those deducted amounts will be returned to the salesperson provided that person is still employed in a sales capacity by KSN.

C. A proportionate amount of attorney and collection agency fees incurred in collecting accounts will be deducted from the commission payable so that the actual sales commission will be calculated on the net amount collected."

It is conceded that the amount earned was the same under either plan. Under Plan I, however, a salesman received his commission when the advertiser actually made payment to the TV station. Under Plan II, the estimated compensation earned by the salesman was paid after the advertising had been aired but before the advertiser paid the station. If the employee chose to be compensated under Plan II and the advertiser did not pay the station, the commission which had been paid was deducted from future paychecks. The basic difference between the two plans was that under Plan II the employee or commission salesman received his commission sooner than he would have received it under Plan I.

The contract of employment contains a further provision dealing with plaintiff's discharge and the compensation due upon discharge. It reads as follows:

"It is agreed because of the nature of the Television advertising business and the necessity of continual and frequent service required by advertisers after they contract to purchase advertising time in order to complete the sale, commissions will be paid only while salesperson is employed in that capacity by KSN.

It is also understood that KSN management may have the right to invoke Plan I to cover the last 30 days of my employment due to resignations or termination." (Emphasis added.)

It has been stipulated in this court that the plaintiff fully agreed to those provisions of the contract we have just quoted.

The plaintiff was discharged on October 31, 1984. No claim is made that the defendant was not entitled to terminate his employment. The plaintiff received commissions on all of his accounts which actually aired before October 31, 1984. The defendant refused to pay the plaintiff commissions on advertisements procured by or ordered through the plaintiff but which were not aired during the time he was employed by the defendant.

As indicated, the nature of the services the plaintiff was employed to perform is important in this case. In our view, the trier of fact could quite properly have concluded that plaintiff's continuing service was necessary during the life of the advertising contract. Upon cross-examination the plaintiff testified that "continued relationships and continued service" were vital parts of the sales process. In the TV advertising business, customers have the right to cancel, modify, or supplement their ads prior to the time they are aired. There was evidence that when a particular advertising program has aired it is subjected to what was called a "post-sales" or "post-buy" analysis to see if it accomplished its intended purpose. Although the plaintiff denied that the salesman took part in the "post-buy" analysis, there was evidence to the contrary. A discussion of the plaintiff's duties as an advertising salesman, or more accurately the duties of commission salesmen who sell advertising for TV stations, could be expanded, but a detailed restatement of the evidence is not necessary. It is enough to say there was evidence that an advertising salesman was required to supervise the contract made with the advertisers from the time the order was placed until the contract was fully performed.

The plaintiff's only assignment of error on this appeal, as presented, is that "the trial court erred in granting judgment in favor of respondent for the reason that ... [appellant] had fully performed under the contract prior to his termination and that respondent prohibited appellant from further performance under the contract by terminating him." The plaintiff relies heavily on Mathews v. Knoll Associates, Inc., 388 S.W.2d 529 (Mo.App.1965), although he has cited several other precedents of greater or lesser applicability to the situation at hand. In Mathews, the defendant manufactured and sold furniture. Plaintiff was employed by the defendant under a written contract as a regional sales manager; she received a salary and commission based on sales. After the plaintiff's employment was terminated, the defendant refused to pay commissions on merchandise which had been ordered but had not been delivered. The defendant received payment in full for merchandise invoiced and shipped. The employment contract contained the following provision concerning the payment of plaintiff's compensation upon termination of her employment:

"9. Upon termination of Knoll's employment of a Regional Manager, salary and commissions shall be computed to the date of termination of employment and paid within 15 days thereafter.... No commission or compensation whatsoever shall be paid by Knoll on account of sales made to customers on or after the date of termination even though such sales relate to orders confirmed prior to the date of termination...." (Emphasis added.)

The plaintiff brought an action to recover commissions due her on sales made while she was employed but which were shipped after her termination. The trial court entered judgment for the...