Wuerderman v. J. O. Lively Const. Co.

• Decision Date: 27 June 1980
• Docket Number: No. 11112,11112
• Citation: 602 S.W.2d 215
• Parties: Vernon L. WUERDERMAN, Plaintiff-Respondent, v. J. O. LIVELY CONSTRUCTION CO., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 215

602 S.W.2d 215

Vernon L. WUERDERMAN, Plaintiff-Respondent, v. J. O. LIVELY CONSTRUCTION CO., Defendant-Appellant.

No. 11112.

Missouri Court of Appeals, Southern District, Division Two.

June 27, 1980.

Benjamin J. Francka, Springfield, for plaintiff-respondent.

James W. Newberry, Schroff, Keeter, Glass & Newberry, Springfield, for defendant-appellant.

MAUS, Judge.

By his amended petition the plaintiff sought to recover against his former employer upon four counts. Court I was based upon the employer's alleged failure to issue a service letter as required by § 290.140, RSMo. Count II alleged the breach of a contract for employment for one year. Count III alleged the breach of a contract for subsistence pay. Count IV was based upon an allegedly libelous statement made by the employer to the Kansas Employment Security Division. At the close of the plaintiff's evidence, the trial court sustained the defendant's motion for a directed verdict upon Counts II and III. At the close of all the evidence the trial court sustained the defendant's motion for a directed verdict upon Count IV. Count I (service letter) was submitted to the jury which returned a verdict for the plaintiff for $1.00 for actual damages and $27,500.00 for punitive damages. The defendant appeals.

The defendant's business includes the construction of coal handling facilities. Its headquarters is in Glen White, West Virginia. In June of 1975 the defendant was constructing coal handling facilities for the Southwest Power Plant in Springfield. The plaintiff, who was 50 years old at the time of trial, had been a carpenter and millwright since 1948. Dale Short, business representative for Carpenters Local 978 of Springfield, called the plaintiff to see if he wanted a job on the Springfield project as millwright foreman at $9.46 per hour. Although employed at the time, the plaintiff decided to take the job and came to Springfield. He was hired as millwright foreman by Elmer Gibson who was the defendant's job superintendent for the Springfield project. He worked from June 23, 1975, to October 10, 1975, when he was terminated.

There was a conflict in the evidence concerning the manner in which the plaintiff was terminated. Gibson testified that on October 10, 1975, he decided to terminate the plaintiff; he signed a termination slip and gave it to timekeeper Eller with directions to prepare plaintiff's checks and give the checks and slip to the plaintiff. Eller testified he did so and when the plaintiff asked the reason he stated "it's (on) there," referring to the termination slip. The form of a company termination slip was in evidence and that form contains a blank for the reason for the termination. Gibson and Eller testified that only one copy of the termination slip was prepared. However, Eller testified that when Gibson gave him the slip he said, "Be sure and give him that copy." A completed copy was not produced. Neither Gibson nor Eller testified what reason was given on the slip handed to the plaintiff. On the other hand, the plaintiff testified he was not given a termination slip, but only handed two checks. Because he received two checks he knew he was terminated and when he asked Eller "what's the deal?", Eller replied he had no idea.

There was also a conflict in the testimony concerning the reason for the plaintiff's termination. It is apparent that by the end of September progress on the project was delayed. On October 7, 1975, the engineer who was responsible for the drawings as well as the progress of the project, told Gibson the millwright work was the biggest holdup and it was impossible to go on. The defendant's witnesses attributed the holdup to the plaintiff's lack of supervision, his inability to follow blueprints, and his lack of coordination of tools and materials. Gibson stated he had discussed plaintiff's shortcomings with him on numerous occasions and twice had complained of those shortcomings to the union business representative. On the other hand, the plaintiff attributed the delay to inadequate plans, changes in the plans, and lack of proper tools and materials on the job site. He said that he had discussed these problems with Gibson to no avail. Gibson admitted that plaintiff did complain to him about inadequate materials and tools. Plaintiff denied that Gibson ever complained to him about the plaintiff's work. The plaintiff produced a "Trip Report" of the executive vice president and general manager of the defendant concerning an on-site inspection made September 24 and 25, 1975, in association with Gibson and Eller. The report details several irregularities in plans and materials and refers to a delay because of the work of another contractor. There is no reference in the report of any deficiency in the work of the plaintiff. The union business representative testified that Gibson did not complain to him of plaintiff's work, and that after the plaintiff was terminated upon inquiry, Gibson told him the plaintiff just didn't have it.

After termination, the plaintiff sought employment elsewhere. He was not employed until March, 1976, and subsequent to his termination he has not been employed as a millwright foreman. No prospective employer asked him for a service letter, but he said if he had such a letter he would have supplied it.

The plaintiff testified that on November 24, 1975, he wrote the defendant a letter, addressed to its headquarters, outlining his employment history with the defendant, the problems he encountered, his termination without explanation and expressing his interest in further work for the defendant. The vice president and treasurer of defendant denied this letter was received. In January, 1976, the plaintiff wrote the letter which gives rise to the present controversy. After a heading giving the plaintiff's name and address, the inside address was: "J. O. Lively Const. Co., Glen White, West Virginia 25849". The salutation was: "Dear Sir". The body read: "It is required by Missouri law 290.140 R.S.M.O. upon written request, which I am doing at this time, for your company to give reason for my termination." It was signed "Thank you, Vernon Wuerderman". The envelope, similarly addressed was postmarked January 16, 1976. It was received by the plaintiff on January 19, 1976.

The evidence concerning the receipt and handling of this letter by the defendant came from Arnold Graybeal. Graybeal had been vice president and treasurer of the defendant since 1969. He was responsible for all accounting functions. The personnel files were maintained in his office and under his supervision. He was in charge of those files as they related to payroll and he testified "we take care of clerical functions". Correspondence to the company relating to employees was referred to the payroll department. Miss Georgia Daniels was a payroll clerk working under the supervision of Graybeal.

In November, 1975, the defendant received a notice from the Employment Security Division of Kansas that the plaintiff had made a claim for unemployment benefits. The form stated the plaintiff gave as the reason for his termination: "Laid off Lack of Work". The form indicated that if the defendant wanted to protest the claim it should complete the "Employer Reply" and return the form. After a call to Gibson, the employer reply was completed giving as the correct reason for the termination, "Let go unable to do the job required of him". The reply was dated November 5, 1975, and signed on behalf of the defendant by G. Daniels. A second notice from the Employment Security Division was received by the defendant and again the reply was completed giving as the correct reason for the separation, "Let go unable to do the job required of him". The second reply was dated January 21, 1976, and again signed on behalf of the defendant by G. Daniels.

The plaintiff's letter in question was signed for on behalf of the defendant by a draftsman. However, it was then delivered to Miss Daniels. Graybeal testified that Miss Daniels reviewed with him the Kansas form and plaintiff's letter at the same time. He gave her directions concerning what was to be done in respect to the two documents. On direct he said, he did not answer plaintiff's letter because he thought the letter was concerning the unemployment benefits, "since we had received another unemployment form, it appeared that he was disturbed because he hadn't drawn his unemployment benefits, and since we returned the new unemployment form about the same time, I thought that was all that was required." He further said he had never encountered a service letter statute and did not become aware of the Missouri service letter statute until the suit was filed. On cross-examination, he stated he called a "local attorney" and asked if he was aware of any requirement to write a letter and explained about the unemployment forms and that they thought that was all that was required. He did not state what the attorney told him, but that thereafter he placed the plaintiff's letter in his personnel file. The present action was filed on May 26, 1976, and the suit papers did pass over Graybeal's desk. They were referred to the company attorneys. No service letter was ever written by the defendant.

While not expressly stated in the defendant's points relied upon, an underlying argument of the defendant is that Graybeal was not a person to whom a request for a service letter could be made within the meaning of § 290.140. The part of § 290.140 pertinent to this question reads: "(I)t shall be the duty of the superintendent or manager of said corporation, upon the written request of such employee to him, . . . to issue to such employee a letter, duly signed by such superintendent or manager, . . . ." (emphasis added) The statute further provides that upon a failure to issue a required letter the superintendent or manager shall be guilty of a misdemeanor. While the statute is worded as if the issuance of a...