Woods v. Kansas City Club

• Decision Date: 14 December 1964
• Docket Number: No. 50766,50766
• Citation: 386 S.W.2d 62
• Parties: Harold R. WOODS, Appellant, v. The KANSAS CITY CLUB, a Corporation, Respondent.
• Court: Missouri Supreme Court

Page 62

386 S.W.2d 62

Harold R. WOODS, Appellant, v. The KANSAS CITY CLUB, a Corporation, Respondent.

No. 50766.

Supreme Court of Missouri, En Banc.

Dec. 14, 1964.

Rehearing Denied Jan. 11, 1965.

William D. Cosgrove, Kansas City, for appellant.

William H. Leedy, John M. Mahota, Gage, Hodges, Park & Kreamer, Kansas City, of counsel, for respondent.

HENLEY, Judge.

This is an action for actual and punitive damages for alleged failure of the defendant corporation, as the former employer, to furnish plaintiff, as the discharged former employee, a so-called service letter in compliance with Sec. 290.140, RSMo 1959, V.A.M.S. We will continue to refer to the parties by the designation they bore in the trial court.

The verdict and judgment was for plaintiff for One Cent actual damages and Fifteen Thousand Dollars punitive damages. A voluntary remittitur by plaintiff of One Dollar of the punitive damages reduced the final judgment to One Cent actual damages and Fourteen Thousand Nine Hundred Ninety-nine Dollars as punitive damages. The Court sustained defendant's motion for a new trial and plaintiff appealed to the Kansas City Court of Appeals. The Court of Appeals affirmed the order of the trial court and after handing down its opinion, on motion of plaintiff, transferred the cause to this Court. We determine the case as on original appeal. Civil Rule 84.05(h). (All references to Statutes and Rules are to V.A.M.S. and V.A.M.R., respectively.)

Briefly, the basic facts are: After serving in the employment of defendant as 'a cold meat man' or assistant chef for more than five years, plaintiff was discharged by defendant on information that he had taken food out of the kitchen against the corporation's rules. Plaintiff requested of defendant that he be furnished a service letter in compliance with Sec. 290.140. Defendant furnished plaintiff with a letter stating: 'In response to your letter of December 8, I would advise that you were employed by the Kansas City Club October 25, 1954, as an assistant cook. Your employment continued until November 30, 1959, when your services are terminated for infractions of our rules.'

As stated above, after judgment for plaintiff, the Court sustained defendant's motion for new trial, the order (entered on the 90th day after it was filed) being 'defendant's motion for new trial [is] by the Court sustained for error in giving plaintiff's instruction No. 2.' The record shows the following entry at the close of all the evidence: 'The Court: Let the record show that the Court gives instructions numbered one, two and three offered by the plaintiff, to the giving of what (sic) each of which the defendant duly objects and excepts.' As will be noted, specific detailed objections to these instructions were not made by defendant at the time they were offered. See Civil Rule 79.01. The pertinent portion of defendant's motion for new trial is: 'Because the court erred in giving instructions numbered one, two and three at the request of the plaintiff and over the objections of the defendant.'

In assuming his burden of showing that the trial court erred in sustaining defendant's motion for new trial, plaintiff contends, first, that because the defendant made neither specific objections to instruction No. 2 before submission as provided in Civil Rule 70.02 nor specific allegations of error in said instruction in its motion for new trial as required by Civil Rule 79.03, the court was 'without authority' to sustain defendant's motion for new trial and defendant is 'without right' on appeal to support the court's order sustaining the motion, and second, assuming that Civil Rules 70.02 and 79.03 are not applicable, Instruction No. 2 contains no error and the court did not err in giving it.

As to his first contention, in the words of the first point in his brief filed in the Court of Appeals, plaintiff says, 'The Court granted a new trial for giving plaintiff's Instruction No. 2. This was error. The point was not preserved for review.' In his supplemental brief filed here plaintiff contends that Civil Rule 70.02 requires that specific allegations of error must be stated in the motion for new trial to preserve those errors for review by either the trial or appellate court. The Rule does not make the requirement advanced by plaintiff; the rule prescribes when specific objections to instructions need not be made, that is, that specific objections are not required before submission to the jury as a condition to preserving error for review 'on after trial motion, or on review by an appellate court, if they are set forth in the motion for a new trial.' Plaintiff contends and argues that the allegations of error in defendant's motion for new trial as to error in Instruction No. 2 are too general and therefore do not meet the requirements of Civil Rule 79.03; that because the allegations in the motion do not meet those requirements, whether the trial court erred in giving that instruction is not preserved for review. He argues that whether the instruction was erroneous may not now be determined, and that whether the trial court ruled properly that it should not have given the instruction for error therein may not now be determined. We hold that neither Rule limits or restricts the trial court's right to pass on its own errors. Civil Rule 79.03 prescribes, inter alia, when it is necessary that specific allegations of error in instructions must be set forth in the motion for new trial in order to preserve the error for appellate review. What was said by the St. Louis Court of Appeals in White v. Metropolitan Life Insurance Company, Mo.App., 218 S.W.2d 795, 798, before the adoption of Civil Rule 79.03 which supplanted Supreme Court Rule 3.23 referred to therein, is as true today as it was then. In that case, where the plaintiff-appellant made the same contention as is made in this, the Court correctly stated at l. c. 798: 'As for the contention that the motion for a new trial was insufficient under rule 3.23 of the Supreme Court, appellant overlooks the fact that the rule has to do with the sufficiency of such motions for appellant (sic) review and the trial court's right to pass upon its own errors is not limited by the rule.'

Defendant's motion for a new trial was sustained and defendant granted a new trial. On an appeal from an order sustaining a motion for new trial it has been said by this Court 'that within the limit of the record brought up for review '* * * it is not only our prerogative, but obvious duty, to review the action of the circuit court, and determine from the law and the facts of the case whether the circuit court exercised a sound judicial discretion * * *' in granting the defendant a new trial. Merriam v. St. Louis, C. G. & Ft. S. Ry. Co., 136 Mo. 145, 36 S.W. 630, 631. See also Bushman v. Bushman, 311 Mo. 551, 279 S.W. 122, 125.' Loveless v. Locke Distributing Company, Mo., 313 S.W.2d 24, 27. Defendant's motion for new trial having been sustained and it having been granted a new trial it is our duty to review, and we do review, the action of the trial court in granting defendant a new trial for the giving of an alleged erroneous instruction offered by the plaintiff. Motions for new trial were overruled and the movant appealed in Hartz v. Heimos, Mo., 352 S.W.2d 596, 602; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 711, 712; O'Brien v. City of St. Louis, Mo., 355 S.W.2d 904, 908 and Roddy v. General Motors Corporation, Mo., 380 S.W.2d 328, 331, cited by plaintiff. In those cases Civil Rules 79.01 and 79.03 were applicable because the movant appealed and the order overruling the motion made the judgment final. The cases are not applicable and do not support plaintiff's position on this appeal. In Overton v. Tesson, Mo., 355 S.W.2d 909, 913; Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535; Ridenour v. Duncan, Mo., 246 S.W.2d 765; and Roberts v. Emerson Electric Mfg. Co., Mo., 362 S.W.2d 579, 582, cited by plaintiff, the motion for new trial was sustained. The cases are to be distinguished from this case. In Overton, supra, the trial court sustained plaintiff's motion for new trial and defendant appealed. The plaintiff failed to support the trial court's action in sustaining his motion for the giving of an allegedly erroneous instruction. This court considered whether the instruction was erroneous, held that it was not and that the trial court had erred in granting the new trial for that reason. The court declined to consider another other allegation of error not assigned as error in the motion. In Goodman, supra, the trial court sustained plaintiff's motion for new trial and defendant appealed. The plaintiff failed to support the trial court's action in sustaining his motion for new trial for the assigned reason of error in admission of incompetent and prejudicial evidence not objected to by plaintiff at the trial. This court considered the evidence and whether it was competent and considered whether the trial court had erred in admitting it. The Court held that the evidence was competent considering the theory on which the case was tried, and that the court had erred in granting the new trial. In Ridenour, supra, a suit to cancel deeds and to quite title tried by the court, the trial court sustained plaintiffs' motion for new trial more than 30 days after it was filed and defendants appealed. The plaintiffs failed to support the trial court's action in sustaining their motion for new trial for the reason assigned by the court in its order. However, this court considered other grounds assigned in plaintiffs' motion as reasons for sustaining the order granting a new trial and affirmed the order of the trial court. In that case plaintiffs' motion did not allege as grounds for new trial the reason given by the court for sustaining the motion. This court concluded that the order granting the new trial for the specified reason was on the court's own motion and not having been...