Stephens v. Lever Bros. Co.

• Decision Date: 06 October 1941
• Docket Number: No. 19933.,19933.
• Citation: 155 S.W.2d 540
• Parties: STEPHENS v. LEVER BROS. CO.
• Court: Missouri Court of Appeals

155 S.W.2d 540

STEPHENS v. LEVER BROS. CO.

No. 19933.

Kansas City Court of Appeals. Missouri.

October 6, 1941.

Rehearing Denied November 3, 1941.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Albert T. Stephens against Lever Bros. Company to recover actual and punitive damages on alleged grounds that defendant refused to comply with statutory mandate refusing to give to plaintiff a service letter. From a judgment in favor of the plaintiff, the defendant appeals, and the plaintiff moves to dismiss the appeal.

Motion to dismiss appeal overruled, and judgment affirmed on condition of remittitur, otherwise, judgment reversed and cause remanded.

Calvin & Kimbrel, of Kansas City, for appellant.

Brooks & Zimmerman, of Kansas City, for respondent.

SHAIN, Presiding Judge.

In this action the plaintiff seeks to recover both actual and punitive damages from defendant on alleged grounds that defendant refused to comply with the statutory mandate in refusing to give to plaintiff a service letter.

It appears that plaintiff, on or about January 10, 1938, was in the employ of defendant as a dealer serviceman, and in January, 1939, was transferred to the sales department and acted in that capacity until on or about September 21, 1939, when he was discharged by defendant.

Plaintiff alleges that on or about October 13, 1939, he requested of defendant a letter setting forth the nature and character of the work which he performed for defendant, the duration thereof, and the true facts regarding his leaving the employment of defendant.

It appears that in response to plaintiff's request, the defendant made a reply in which the following language appears:

"We are sorry that we cannot send you this letter because of a standing company policy. We shall be glad to answer any requests sent to us by any prospective employers."

Plaintiff asks $100 actual damages because of lost opportunity to secure worthwhile employment and asks punitive damages in the sum of $2,900, all based upon allegations of unlawful, wilful, and malicious acts of defendant in not furnishing to him the service letter as requested.

Defendant joins issue by general denial. Trial was by jury, resulting in verdict for plaintiff in the sum of $100 actual and $2,900 punitive damages. Judgment was in accordance with jury verdict and defendant has duly appealed.

On Motion to Dismiss

We are confronted at the outset with a motion to dismiss the appeal. The grounds urged for dismissal are: First, failure to comply with the rule and the statute requiring a plain and concise statement of the case; second, violation of our rule 17, in respect to assignments of error being in the abstract without assignment of reason.

As to the first ground urged, suffice it to say that plaintiff's motion does not exaggerate defendant's violation of the statute, Sec. 1226, R.S.Mo.1939, and our rule 16. However, the plaintiff has filed a brief in which there appears an excellent statement that gives to us a clear and understandable view of the case.

As the plaintiff, the respondent, has exercised his right to correct the flagrant errors in appellant's statement, there exists no reason for dismissal on his first ground stated.

As to the second ground urged for dismissal, violation of rule 17, our conclusions will be best understood by reproducing the assignments as they appear in the brief, as follows, to-wit:

"I. The court erred in refusing to give the defendant's instruction B, in the nature of a demurrer to the evidence, offered at the close of all the testimony; and, also erred in not directing a verdict in favor of the defendant.

"II. The court further erred in submitting to the jury the question of whether or not the plaintiff was entitled to recover exemplary or punitive damages.

"III. The court erred in giving, over its objection and exception, instruction 2, offered by and on behalf of the plaintiff.

"IV. The court erred in giving, over its objection and exception, instruction 5, offered by and on behalf of the plaintiff.

"V. That the finding and verdict of the jury were, and are, excessive; and, the court erred in not setting the same aside; and in not sustaining the defendant's motion for a new trial upon that ground alone."

As to assignments 3 and 4, they are but abstract statements with no reasons assigned and present nothing for review. We conclude that assignments 1 and 2 call for a review of the case from the standpoint as to whether or not the judgment is supported by substantial evidence, and based on this conclusion, plaintiff's motion to dismiss is overruled.

We will continue to refer to respondent as plaintiff and to appellant as defendant.

Opinion

As the jury verdict in this case was for plaintiff, both as to actual and punitive damages, we must in our review give the plaintiff the most favorable inferences from all the evidence.

In passing upon the question of actual damages, the evidence is directly to the effect that plaintiff made proper requests for a service letter, and the defendant by letter denied the request. Plaintiff made his written request October 13th and defendant made written refusal October 18th. Plaintiff filed suit on November 16, 1939, and thereafter received a service letter dated November 15, 1939.

The plaintiff's evidence is to the effect that in the interim he did obtain some part-time employment, but that he continued to make diligent search for more worthwhile employment. In his endeavor to secure such employment, the evidence discloses that on several occasions he was asked if he had a service letter and that he had to answer in the negative.

The plaintiff testifies that at the time that he was discharged he asked his foreman, who told him...