Van Sickle v. Katz Drug Co.

• Decision Date: 26 May 1941
• Parties: DON E. VAN SICKLE, RESPONDENT, v. KATZ DRUG COMPANY, APPELLANT
• Court: Kansas Court of Appeals

151 S.W.2d 489

235 Mo.App. 952

DON E. VAN SICKLE, RESPONDENT, v. KATZ DRUG COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

May 26, 1941

Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

Ryland Stinson, Mag & Thompson and Conkling & Sprague for appellant.

(1) The court erred in refusing Instruction A in the nature of a demurrer offered by the defendant at the close of all the evidence. (a) The petition, after stating plaintiff's discharge on August 16, 1939, and his request for a service letter, alleged that thereafter, on August 18, 1939, and again on September 8, 1939, defendant issued to plaintiff on September 14, 1939, of a proper and sufficient service letter. The answer set up the defendant's issuance and delivery to plaintiff on September 14, 1939, of a proper and sufficient service letter The plaintiff's reply was that the reason assigned for the termination of plaintiff's employment in said letter of September 14, 1939, was not the true reason, but a false one. The pleadings therefore made the truth or falsehood of the reason assigned in said letter of September 14, 1939, for plaintiff's dismissal the sole issue of fact. Hamilton v. Armstrong (Mo.), 21 S.W 1124, 1125; Russell Co. v. Spurgeon (Mo. App.), 258 S.W. 10, 12. (b) The uncontradicted testimony of both the store manage, who discharged plaintiff, and of his superior the personnel manager, who wrote the said service letter, was that the reason therein assigned for plaintiff's quitting defendant's service was the true one. Not a scintilla of evidence was offered by plaintiff to support the charge in his reply that he was discharged for another reason, nor did he offer a scintilla of evidence that the true ground for his dismissal operating upon the minds of the officials who discharged him was not in fact the reason assigned in the service letter. Under such circumstances a jury was not entitled to substitute its opinion in the place of the opinion of the employer. Adams v. Southern P. Co. (Cal.), 266 P. 541, 543; Richardson v. Texas & N. O. Ry. Co. (Tex.), 75 S.W.2d 962. (2) The question of punitive damages should not have been submitted to the jury. Even if plaintiff had made a submissible case for the jury on the question of nominal actual damages (which we deny), yet the trial court erred in giving to the jury plaintiff's instructions 1, 2, 3 and 7, authorizing an award of punitive damages, and in refusing defendant's requested Instruction B, prohibiting any such award, because there was no evidence to support punitive damages in this case. (a) The determination of whether the facts warranted as a matter of law an award of punitive damages was one for the court. State ex rel. v. Ellison, 268 Mo. 233. (b) Before exemplary damages can be awarded, the act complained of must not only be unlawful, but it must be coupled with an intentional wrong; viz., it must have been done maliciously. State v. Jungling, 116 Mo. 165; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 742. (c) There must be present some evidence of a conscious wrongdoing, or of a bad motive, in order to sustain an award of punitive damages. Bear v. Branson, 217 Mo.App. 409; DeSalme v. Union E. L. & P. Co., 232 Mo.App. 254. (d) Where a party acts in good faith and in the honest belief that his act is lawful, he is not liable for punitive damages even though he may be mistaken as to the legality of his act. 15 Am. Jur. 725, Sec. 283; Giffin v. Petree, 226 Mo.App. 724; Hall v. St. Louis-San Francisco Ry. Co., 224 Mo.App. 431, 439. (e) Under the record facts of this case, there was not a scintilla of evidence of any malice, legal or actual, and it was therefore improper to allow anything for punitive damages. (3) The court erred in giving plaintiff's Instruction 3. Even if plaintiff made a submissible case on the question of actual nominal damages, and on the question of legal malice (which we deny), yet there was no evidence of any actual malice in this case, and plaintiff's Instruction 3, injecting that issue in the case, was not only beyond the purview of the proven facts, but was confusing, misleading and prejudicially erroneous. Degonia v. Railroad, 224 Mo. 589-590; Kuhlman v. Transit Co., 307 Mo. 636.

L. F. Randolph and Jesse B. Brown for respondent.

(1) (a) "Plaintiff was entitled to a letter stating the true cause of his discharge so that he might thereby prevent blacklisting by defendant." Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 724. (b) "The clear purpose of the statute being to arm the employee with a letter stating the true cause of his discharge, if he had been discharged, or the cause for his leaving the service of his former employer, and thereby preventing corporations from blacklisting their employees upon leaving their employment." Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 391. (2) Plaintiff is entitled to all reasonable inferences from his evidence. Lyons v. St. Joseph Belt Ry. Co. (Mo. App.), 84 S.W.2d 944; Hall v. St. Louis & S. F. Ry. Co. (Mo. App), 28 S.W.2d 691. (3) There was ample evidence of both actual and legal malice upon which to submit this case to the jury; upon either malice plaintiff was entitled to a submission to the jury on the question of punitive damages; and therefore, the court properly refused defendant's Instruction A--demurrer to evidence and B--prohibiting assessment of punitive damages. Lyons v. St. Joseph Ry. Co., 84 S.W.2d 933; Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 719; Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 387 and same (Mo. App.), 223 S.W. 754; Hall v. St. Louis & S. F. Ry. Co. (Mo. App.), 28 S.W.2d 691. "While plaintiff's testimony . . . tends to show actual malice against plaintiff . . . yet it is not necessary to show actual malice in order to recover punitive damages. Malice, in law, which is the intentional doing of a wrongful act without just cause or excuse, is sufficient. If the evidence most favorable to plaintiff in this case is true, and that is all that we can consider in passing upon a demurrer to the evidence, we are of the opinion that there was sufficient evidence on the refusal to issue the service letter, and of at least legal malice in that refusal, and that was all that was necessary to take the question of punitive damages to the jury" Hall v. St. Louis & S. F. Ry. Co., 28 S.W.2d 694. (4) The court did not err in giving plaintiff's Instruction No. 2. That instruction has been approved by both this court and the Supreme Court in the Walker and Lyons cases, supra. State ex rel. St. Joseph Belt Ry. Co. v. Shain (Mo. App.), 108 S.W. 351. (5) Instruction No. 3 was not error. That instruction has likewise been approved by both this court and the Supreme Court in the Lyons and Walker cases, supra. Furthermore and contrary to the assertion in appellant's brief, the instruction does not authorize or direct a verdict or an award of punitive damages, or any other damages. The instruction first defined the two kinds of malice--actual and legal. It then explained what actual damages were, and what punitive damages were. It was simply a definition instruction and certainly was apropos in this case. (6) The service letters pleaded in plaintiff's petition did not comply with the law in two respects: (a) They did not state the true reason, or any reason for discharge. (b) They did not state the "character" of plaintiff's service. Character means "distinctive qualities or traits;" "as to conduct or ability." (See Webster's Standard Dictionary). Note the statute says "nature and character of service." Nature of service means, kind of service. (See Dictionary.) Nature and character are non synonymous terms. It is obvious that the Legislature used the terms advisedly and knowingly, requiring the employer to state not only the kind of work the employee did, but also, how he did it--the "distinctive quality" of his work. That is what plaintiff had in mind when he testified as follows: "Q. Then you are complaining of the letter not because it did not state what you did, but because it did not state how you did it? A. That is right." (7) The letter pleaded in defendant's answer did not constitute a defense to this action. It did not ipso facto, take malice out of this case. It was only to be considered by the jury in mitigation of punitive damages--like a retraction in a libel action--provided, the jury believed the defendant acted in good faith and stated the true reason for discharge therein.

OPINION

CAVE, J.

--This is an action for actual and punitive damages based upon an alleged failure by the defendant to furnish the plaintiff, upon his request, a proper service letter as provided for in Section 5064, Revised Statutes of Missouri, 1939. There was a judgment for plaintiff in the sum of one dollar, actual damages, and $ 500, punitive damages. The court instructed the jury not to allow actual damages in an amount in excess of one dollar. The defendant has appealed.

The parties will hereinafter be referred to as plaintiff and defendant.

The defendant assigns errors in the refusal of the court to give defendant's Instruction A, which was the demurrer offered at the close of all the evidence; and also refusal to give defendant's Instruction B, which told the jury in effect that if the verdict should be for the plaintiff the jury could not allow the plaintiff "punitive damages in any sum whatever." Defendant's other assignments of error were directed to the giving of certain instructions by the court on behalf of the plaintiff, which will be discussed in the opinion.

In substance plaintiff's amended petition alleged that he had been employed by the defendant for a certain period of time (in excess of 90 days) and that his duties...