Stark v. American Bakeries Co., 63581
| Decision Date | 23 February 1983 |
| Docket Number | No. 63581,63581 |
| Citation | 647 S.W.2d 119 |
| Parties | 119 L.R.R.M. (BNA) 2344 James R. STARK, Plaintiff-Appellant, v. AMERICAN BAKERIES COMPANY, a corporation, Defendant-Respondent. |
| Court | Missouri Supreme Court |
Timothy H. Bosler, Liberty, John H. Norton, Kansas City, for plaintiff-appellant.
Lloyd A. Hamrick, A. Warren Francis, Jeffrey O'Connor, Kansas City, for defendant-respondent.
Plaintiff initiated this action against his former employer for alleged noncompliance with the service letter statute, § 290.140, RSMo 1969. The jury returned a plaintiff's verdict for $1.00 actual and $50,000 punitive damages. After entry of judgment in accordance with the verdict, the court, on defendant's motion, set aside its order and entered judgment for defendant notwithstanding the verdict or alternatively granted defendant a new trial based on instructional error and a finding the verdict was against the weight of the credible evidence. Plaintiff sought review in the Court of Appeals, Western District, where the judgment of the trial court was affirmed and thereafter, on plaintiff's motion, the cause was transferred and is determined here as though on original appeal.
Plaintiff maintains the trial court erred by entering judgment for defendant N.O.V. and abused its discretion by the alternative grant of new trial. We affirm the judgment N.O.V. denying punitive damages, reverse as to the award of nominal damages and vacate the order alternatively granting defendant a new trial. 1
When reviewing a judgment for defendant notwithstanding the verdict, the evidence is taken in the light most favorable to the plaintiff and he is given the benefit of reasonable inferences to be drawn therefrom. Herberholt v. dePaul Community Health Center, 625 S.W.2d 617, 622 (Mo. banc 1981); Farnham v. Boone, 431 S.W.2d 154, 156 (Mo.1968). Though defendant's evidence unfavorable to plaintiff is disregarded, Bayne v. Jenkins, 593 S.W.2d 519, 521 (Mo. banc 1980), the party with the burden of proof may be bound by uncontradicted facts elicited from his own witnesses on direct examination. Silberstein v. Berwald, 460 S.W.2d 707, 710 (Mo.1970); Taylor v. Riddle, 384 S.W.2d 569, 573-74 (Mo.1964). 2 Application of these principles yields the following facts.
In 1953, plaintiff was hired by defendant as a route salesman in Kansas City, Missouri to produce sales volume from assigned accounts and solicit accounts. Working in that capacity until 1957, plaintiff resigned for a stint in the insurance business but was reemployed by defendant in 1958 as a route salesman. In 1962, plaintiff was promoted to route supervisor with responsibility for six to nine salesmen; in 1964, he was promoted to merchandiser and four years later was advanced to sales manager, responsible for sales in the city of Kansas City and later the Kansas City "area." In 1972, plaintiff was moved laterally to the position of marketing director. The reason for this job move was noted on defendant's personnel records as "Change in Sales Department Personnel," and Charles Johnson was brought in to replace plaintiff as sales manager. As marketing director, 95% of plaintiff's assignment was to hold and cultivate the Associated Grocers account, one of defendant's largest, if not its largest account in the Kansas City area. Associated Grocers was a large group associated for the benefit of volume purchasing, and a number of defendant's employees in addition to plaintiff worked the account. Each month during 1975, the dollar amount of defendant's sales to Associated increased as against the same month in 1974. Though plaintiff played some part in this increase, it was also attributable to the efforts of other employees, inflationary pressures and an "all out" sales campaign conducted by defendant. While marketing director, plaintiff worked long hours and at times (as did others) holidays and Sundays. Plaintiff was punctual, seldom took all his vacation, made a good appearance, and was never reprimanded at a monthly sales meeting or told his work was unsatisfactory. During plaintiff's employment, the time is uncertain, he helped initiate the "Drop Program," a system of direct delivery to grocers, and in January, 1976, helped institute a similar program in Detroit, Michigan. Plaintiff's annual salary, which was $10,000 in 1968, was increased in $1,000 yearly increments to $17,000 in 1975. The reason for plaintiff's 1973 raise was noted on his personnel records as "Merits increase."
While he was marketing director, plaintiff reported to his replacement, Charles Johnson, as to some activities and to Ken Moreland, the plant manager, as to others. In mid-1975 Johnson was transferred to Dallas, but retained responsibility for sales at defendant's Kansas City plant. Two or three weeks before Johnson left for Dallas, plaintiff was given a $1,000 raise by Ken Moreland, the reason recorded as, "Merit increase." In early March, 1976, Johnson was promoted to replace Ken Moreland as plant manager and returned to Kansas City. Eight days later, he asked plaintiff to resign "for economical [sic] reasons." When plaintiff refused, Johnson said he'd have to let him go. Plaintiff asked "Why?" and Johnson replied, "Because your work is unsatisfactory." A lengthy discussion ensued during which Johnson offered to help plaintiff find other employment. Thereafter Johnson directed preparation of a termination notice which read substantially as follows:
TERMINATION OR LEAVE OF ABSENCE NOTICE
NAME STARK JAMES ROBERT POSTION: MARKET DIRECTOR
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QUIT_______DISCHARGED_______ LAID OFF_______x 00000800OTHER_______
EXPLANATION
Work not satisfactory
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Excellent Good Fair Poor
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Quality of Work X
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Quantity of Work X
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Relations with other workers X
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Cooperation X
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Attendance and Punctuality X
Is He Honest: Yes
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Would You Rehire Him? No Why: Above reason
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A week after his discharge plaintiff was hired by Foremost Dairies as a free-lance salesman. Three months later, he wrote to defendant requesting the challenged service letter. After consulting a company attorney, Johnson responded on behalf of the defendant:
June 30, 1976
Dear Mr. Stark:
In answer to your letter of June 10, 1976, our records indicate your date of employment with American Bakeries Company began July 21, 1958 and terminated March 13, 1976.
The nature of your duties was sales work, holding various jobs in our Sales Department. For approximately the last four years of employment, you were Marketing Director responsible for Associated Grocer Stores.
You were terminated on March 13, 1976 because your work was unsatisfactory.
Sincerely,
AMERICAN BAKERIES COMPANY
/s/ Charles Johnson
In deposition given January 13, 1977, plaintiff said he knew no reason for his discharge other than unsatisfactory work. At trial, testifying somewhat differently, he stated that since the time of deposition he had developed the feeling he was discharged by Johnson because of professional jealousy. The only evidence supporting this conclusion was that Johnson replaced plaintiff as sales manager and that until plaintiff became marketing director, the careers of both men followed similar paths.
Plaintiff contends that even if true, defendant's statement, "[y]ou were terminated on March 13, 1976 because your work was unsatisfactory," is too vague to sufficiently state a "cause" for termination under § 290.140, RSMo 1969. 4 We agree.
The purpose of § 290.140, RSMo 1969, is to deter corporate employers from destroying or severely impairing the employability of former employees by furnishing false or misleading information as to their service or false reasons for their discharge. See Cheek v. Prudential Insurance Co., 192 S.W. 387, 389 (Mo.1916). The target of the statute is corporate blacklisting, i.e. severe and unjustified career damage by former corporate employers. Armed with accurate information about their service and the true reasons for discharge, it is hoped that employees can counter false information disseminated by former corporate employers or use truly stated reasons to sue for wrongful discharge in appropriate cases. The short statement "unsatisfactory work" as the "cause" for discharge falls short of achieving these goals. Even if plaintiff was discharged because his work was unsatisfactory in some respect, the service letter citing "unsatisfactory work" as the reason for his discharge would not enable him to counter false statements that his work was unsatisfactory in other, possibly vital, respects. Because the reason "your work was unsatisfactory" would not enable plaintiff to meet and rebut severely impairing "facts" stated by his former corporate employer, we conclude it is too vague to constitute a "cause" for discharge under § 290.140, RSMo 1969, and defendant is liable for the $1.00 nominal damages awarded by the jury. However, as we shall now discuss, there was insufficient evidence of actual or legal malice on the part of the defendant to justify...
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