Williams v. Kansas City Transit, Inc.

• Decision Date: 14 November 1960
• Docket Number: No. 47480,No. 2,47480,2
• Citation: 339 S.W.2d 792
• Parties: 41 Lab.Cas. P 50,084 Richard E. WILLIAMS, Appellant, v. KANSAS CITY TRANSIT, INC., a Corporation, Respondent
• Court: Missouri Supreme Court

Page 792

339 S.W.2d 792

41 Lab.Cas. P 50,084

Richard E. WILLIAMS, Appellant, v. KANSAS CITY TRANSIT, INC., a Corporation, Respondent.

No. 47480.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1960.

Taylor & Jones, Robert J. Taylor, Russell S. Jones, Kansas City, for appellant.

Powell C. Groner, Kansas City, Hale Houts, J. D. James, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for respondent.

BOHLING, Commissioner.

This is an action by Richard E. Williams against the Kansas City Transit, Inc., (formerly Kansas City Public Service Company), a corporation, wherein plaintiff asks $25,000 actual and $25,000 punitive damages for an alleged libelous statement (Sec. 559.410) by defendant of the cause of his discharge in a service letter, issued in compliance with plaintiff's request therefor, and for the alleged violation of Sec. 290.140 by said false statement in the service letter. (Statutory references are to RSMo 1949 and V.A.M.S.) Plaintiff appeals from a judgment entered upon a directed verdict at the close of his case.

Plaintiff worked for defendant as a streetcar and bus operator from December 15, 1942, until discharged on August 3, 1951, for not complying with defendant's rule with respect to the collection of fares, which provided, so far as material: 'B. All fares will be deposited in farebox by the passenger except where governed by special order. Fares will not be deposited for passengers, unless they refuse to do so or are unable to reach fare box. In such case, operator will collect and insert fare in box in the presence of the passenger.'

Other controversies arose out of plaintiff's discharge prior to this action.

Plaintiff was a member of Division 1287, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, which association had a contract with defendant. Under this contract the Union agreed to assist defendant in eliminating any practices of mishandling fares, and, subject to a hearing before a Grievance Board defendant had the exclusive right to discharge or discipline its employees for just cause. Plaintiff, through his Union, invoked the grievance provisions, of this contract. A hearing was had before a Grievance Board, composed of Loren Hargus, President of plaintiff's Union and the Union's appointee, G. H. Frieling, Vice-President of and defendant's appointee, and A. J. Granoff, selected as impartial chairman. The representatives of the Union and defendant agreed in writing that the following issue was for determination:

'This case presents the issue whether or not the Company was justified in discharging Mr. R. E. Williams for the alleged mishandling of fares which he collected as an operator of the Company. The Company contends that information provided it, including several checks made of the work of Mr. Williams between July 25, 1951, and August 1, 1951, gave reasonable grounds for belief that Mr. Williams was misappropriating fares belonging to the Company; and that, therefore, it was justified in discharging him from the service of the Company on August 3, 1951. The Union denies the contention of the Company and alleges that it was not justified in discharging Mr. Williams.'

The record before us discloses that four of defendant's inspectors testified under oath at the grievance hearing and submitted reports for July 25, 27, 28, and 31, 1951. These reports were to the effect the inspectors observed that passengers on the bus operated by plaintiff handed money to plaintiff; that plaintiff, instead of handing the change to the passengers for depositing the fare in the fare box, handed the passenger the change, less the fare, and placed the fare on a transfer tray on the ledge or in his 'changer.' Plaintiff testified the fare box registers how much is taken in, like a cash register, and defendant advanced bus operators $18 for the changer, which did not have to be turned in, but never checked the changer.

The award of the majority of the Grievance Board, the Union member dissenting, on June 30, 1952, was that plaintiff had been discharged for just cause, sustained his discharge, and denied the grievance.

Next was an action by plaintiff against defendant for alleged wrongful discharge. This resulted in a final judgment on October 8, 1956, in favor of defendant. Williams v. Kansas City Public Service Co., Mo., 294 S.W.2d 36.

The present action arises out of a service letter furnished plaintiff by defendant. It was filed September 15, 1954, and tried in January, 1959. No issue is presented respecting the pleadings and they are not developed.

On October 3, 1952, plaintiff wrote defendant requesting 'a service letter disclosing the fact that I was discharged and the reasons for such discharge.'

Defendant, under date of October 20, 1952, in separate paragraphs and so far as material, acknowledged plaintiff's request, set forth the nature and character of the services rendered by plaintiff and the duration thereof, stated the cause of plaintiff's discharge in the paragraph quoted below, called plaintiff's attention to the proceedings before the Grievance Board and the result thereof, and stated, with the exception mentioned, that plaintiff's services had been reasonably satisfactory.

The only paragraph of the service letter here involved reads:

'You were discharged for the following reason, to-wit, that investigations conducted by duly accredited representatives of the Company between July 25th and August 1, 1951, appeared to give it reasonable grounds for believing, and, on the basis thereof, the Company did believe, that you had mishandled fares which you collected as an operator of the Company, in that you had not required each fare to be deposited by the passenger in the fare box and registered, had not accounted to the Company for the fares received but not deposited in the farebox and had misappropriated the fares received belonging to the Company, not deposited in the fare box.'

Plaintiff first contends the court erred in holding the quoted paragraph of defendant's service letter 'was a qualifiedly privileged communication for the reason that under the law and the evidence appellant's proof of the falsity of the statements overcame the defense of qualified privilege.'

Plaintiff states the quoted paragraph falls within the statutory definition of libel, Sec. 559.410, if the statements were false and not privileged, citing Lonergan v. Love, 235 Mo.App. 1066, 150 S.W.2d 534, and other cases. He, in his brief and in oral argument, stated the main, if not the only, issue is whether said statements are qualifiedly privileged communications.

'Briefly stated, a qualifiedly privileged communication is a defamatory communication made on what is called an occasion of privilege without actual malice, and as to such communications there is no civil liability.' 53 C.J.S. Libel and Slander Sec. 89, p. 144. A quoted and applied case is Finley v. Steele, 159 Mo. 299, 305, 60 S.W. 108, loc. cit. 109, 52 L.R.A. 852. It is there stated: "A libelous communication is regarded as privileged, if made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, although it contains criminating matter which without this privilege would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation.' [Quoting Byam v. Collins, 111 N.Y. 143, 19 N.E. 75, 2 L.R.A. 129. And:] 'The proper meaning of a privileged communication is said to be this: that the occasion on which it was made rebuts the inference arising prima facie from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill will, independent of the circumstances in which the communication was made.' [Quoting Klinck v. Colby, 46 N.Y. 427.] But when the paper published is a privileged communication an additional burden of proof is put upon the plaintiff, and he must show the existence of express malice.' See, among others, Holmes v. Royal Fraternal Union, 222 Mo. 556, 121 S.W. 100, 104, 106, 26 L.R.A.,N.S., 1080; Lee v. W. E. Fuetterer Battery & Supplies Co., 332 Mo. 1204, 23 S.W.2d 45, 60 et seq., Gust v. Montgomery Ward & Co., 229 Mo.App. 371, 80 S.W.2d 286[6-8, 14-16]; 33 Am.Jur. 124, Sec. 126.

Section 290.140 makes it the duty of a corporation upon the written request of a former employee to, so far as material here, 'issue to such employee a letter * * * truly stating for what cause, if any, such employee has quit such service.' Thus, a legal duty was imposed upon defendant to issue the communication here involved on plaintiff's written request. Under the above authorities said service letter was a qualifiedly privileged communication. See also, among others, Merkel v. Carter Carburetor Corp., 8 Cir., 175 F.2d 323[3-5]; Jorgensen v. Pennsylvania R. Co., 25 N.J. 541, 138 A.2d 24, 36[8-15], 72 A.L.R.2d 1415; Mick v. American Dental Ass'n, 49 N.J.Super. 262, 139 A.2d 570, 577[6-8, 19]; Murphy v. Johns-Manville Products Corp., 45 N.J.Super. 478, 133 A.2d 34, 40[6, 12]; Childs v. Erhard, 226 Mass. 454, 115 N.E. 924, 926; Hoff v. Pure Oil Co., 147 Minn. 195, 179 N.W. 891, 11 A.L.R. 1010; Schlaf v. State Farm Mut. Auto. Ins. Co., 15 Ill.App.2d 194, 145 N.E.2d 791, 793[1-3]; Annotation, 66 A.L.R. 1499.

Plaintiff asserts in his brief that the only evidence presented was that the statements here involved were untrue and that he did not mishandle or misappropriate $2.80 of defendant's fares.

Omitting the first part of the paragraph here involved (reading: 'You were discharged for the following reason, to-wit, that investigations conducted by duly accredited representatives of the Company between July 25th and August 1, 1951, appeared to give it reasonable grounds for...