*1 given adequate in- struction because the word “manufacture” BOYLE, Judy Respondent, A. generic and the definition of the word “manufacture” incomplete. Instruction
No. 6 defined the word “manufacture” as EYEWEAR, VISTA INC. and David A. follows: Baker, Appellants. production, means the “Manufacture No. WD 34975.
preparation, propagation, compounding processing substance, Appeals, Missouri of a Court controlled directly Western District. either extraction from sub- stances origin.” of natural Nov. complains Defendant that this instruction complete is not literally because it does not language 195.010(21).
track the of § This
complaint is controlled said or what was
implied Goodman, in such cases as State (Mo.1973)
490 S.W.2d and State v.
Hurvey, (Mo.App. 544 S.W.2d 594-95
1976): the sense of these cases is that if an
all-encompassing only definition add would
confusion, then it given. should not be analysis,
the final it duty was the
court to jury writing upon “instruct the questions
all arising law the case necessary
which are for their information verdict_” giving Section 546.-
070(4). given performed instructions
that function.
The trial court also instructed the
jury on possession the offense of of more grams marihuana,
than 35 apparently on theory that the definition of the term exempts
“manufacture” preparation or
compounding of marihuana “for his own argues,
use.” implicitly, Defendant
this is the instruction which should given.
have been What we have said about
sufficiency disposes assign of defendant’s respect.
ment of error in this again calling provi-
Once attention to the error, defect,
sion of Rule 29.12(a) “[a]ny—
irregularity, or variance which does not disregard-
affect shall substantial
ed”—we affirm the of conviction.
PREWITT, C.J., CROW, MAUS
JJ., concur.
Timothy (argued) W. Monsees and James Morrow,- City, appellants. C. Kansas Liberty, respon- Murphy, J. Michael dent. KENNEDY, P.J.,
Before and NUGENT BERREY, JJ. NUGENT, Judge. Baker, Eyewear, and David A.
Vista defendants, appeal judgment from a following Judy Boyle A. awarding Boyle in actual verdict Mrs. $1.00 $15,000 punitive damages for furnishing letter which false- her a service employment was ly stated the reasons her «61 terminated. Mrs. cross-appeals worry, that he had insurance that would wrongful discharge got dismissal of the count take care of it if he Plaintiff told sued. of her petition. “money poor We affirm the circuit Mr. Baker substi- court’s on II and judgment somebody’s eyesight.” Counts I and tute for She testi- aggravated reverse its and re- very Count III fied that Baker “was ..., mand go that count. told me me. He ‘Just do what *3 you’re I told. don’t want to hear more Plaintiff, Boyle, A. Judy worked as a lab ” about it.’ helper Eyewear, an optical Vista manu- facturing company, September, employer She warned her that she would January 9, depart- to report govern- Vista’s bench the violations of the law to authorities, hand-edging, ment. Her duties included mental contin- defendant testing hardening eyeglass pro- practice. and During lenses ued their her tenure with Vista, duced regulations repeatedly urged defendant. The her she the United Food and Drug States Adminis- to make certain that the lenses were hard- eyeglass tration require all manufacturers tested in ened and a manner consistent glass to test lenses all for their resistance she with what believed to the law. to breaking shattering lens- before such urgings, After months of such fruitless es may public. be sold or distributed to the employees Boyle Mrs. and four other com- plained Occupational Safety
Plaintiff’s evidence tended to establish to the and industry procedure (OSHA) that the standard to Health Administration that submit all hardening being lenses either a not tests were conducted. When chemical they jurisdiction treatment heat treatment. The that no learned OSHA had process overnight matters, complained “chem-test” they involves an over tray glass bake of Drug a lenses federal Food and Administration (FDA). They chemical in- they solution. heat treatment told Mr. what Baker heating volved the again aggravated. one lens at time. had he done was treatment, After Boyle either such to determine Then Mrs. told Mr. Baker that she hardened, sufficiently eyeglass whether lenses have perform required lens would subjected impact testing. lenses are to an test. hardening Each placed drop lens is machine ball Boyle Baker asked Mrs. and another Mr. and a quarter steel ball size of a Bond, employee, Bob to withdraw the com- dropped forty-eight through about inches that plaints and to tell the FDA had tube to the center strike of the lens. employees also lied. He instructed other glass
Plaintiff and her witnesses bottom of the testified throw broken into the drop machine, impact drop testing apparently ball test was used never ball impression all jobs give Vista and that on rush some FDA the and on false jobs testing other hardening drop being lens was done. A few treatment ball Nevertheless, later, November, 1978, skipped. was was weeks OSHA con- required investigation to initial a form set of defendants’ for each ducted an eyeglasses stating premises. that she had heat or chemically impact treated tested complaints two months after the About
lenses. FDA, 9, 1979, January David complained plaintiff’s Boyle supervisor Douglas, supervisor
Mrs. to her let Baker, wrong. something David He told president to defendant know that was Vista, part compa- nothing wrong pro- with her owner about the her that was ny’s practice hardening testing problem not work. He said that the duction or Baker, spoke reported ex- she to Mr. lenses. was that When Mr. Baker Douglas using pressing potential president, concern about injuries Douglas go drugs. Boyle he not her Mrs. asked eyes, customers’ said that it was prove with her to 20, 1979, Bond, Mr. Baker to that she had January On Bob a co- Douglas so accused him. refused and worker complaints who had filed the with spot. plaintiff, fired her on the On cross-examina- was fired for “absenteeism.” In plaintiff quoted time, Douglas Boyle tion due saying Mrs. made a written re- problem but, quest was not with her “I to David Baker and work am Vista a ser- stating mad vice letter you because have the true reason for turned me in on her answer, discharge. drugs to Mr. Baker yelled, Mr. Baker.” He then wrote discharge reason for her her “You pro- are fired. Get out.” When she arguing departmental supervisor. tested that she had not told Mr. Baker that said, using drugs, Douglas “Yes, he was Thereafter, petition Mrs. filed her you did. You are fired.” unpaid compensation (Count I) overtime and for for failure to issue a immediately Plaintiff went to Mr. Bak- letter correctly service stated the true protest. er’s office to She him told what (Count II). reason for her She *4 had happened Douglas’ and of accusation alleged that she was fired for the com- nothing just her. Baker said looked —he plaints made to OSHA and the FDA and him, at the challenged floor—when she as- not, as in defendants stated their service serting that Douglas he knew was not tell- letter, arguing supervisor. with her ing the truth. She asked Baker if the alleging Later she added III Count that she being reason she was fired was that she wrongfully discharged from her em- gone agencies, had to the federal but Bak- ployment filing complaints with OSHA er, testified, just she stood there and said and FDA. nothing. Defendants filed a motion to dismiss Defendant Baker on direct examination ground III Count on the that she was an Boyle “roaring testified that Mrs. came in” at-will and that Missouri law does January to his office on 9 and said that recognize wrong- a cause of action for Douglas arguing had fired her for ful of such an absent “go along.” him. He had no choice contract of employment statutory or au- cross-examination, however, On Baker con- thority. alleged Defendants further that plaintiff ceded that good “was a worker” subject Missouri courts were without knowledge who to his did her satis- work jurisdiction asserting matter causes try factorily. plaintiff Baker admitted that violations of OSHA and FDA. The trial him Douglas had told that had fired her granted court motion and dis- defendants’ says you “because he that I told [Baker] III missed Count for failure to state a Douglas drugs.” that David was on Baker claim. testified, nevertheless, that this was jury. Counts I and II were tried to a It subject drug first time the had abuse plaintiff’s in overtime claim found favor of that, Despite been mentioned to him. he $1,500. jury her also awarded Douglas to call declined about the false pay overtime found that the failure to accusation on the basis of which he had wages good was willful and not faith just plaintiff. fired He testified that he liquidated and awarded additional just go,” “had to let her that manage- $1,500 damages in the amount $750 ment he supervisor. had stand behind his attorneys’ jury fees. The for reasonable day Plaintiff testified that the next Boyle found in of Mrs. on her service favor reported Employment to the Division of letter her in actu- claim and awarded $1.00 Security accusing that she was fired for $15,000 punitive al dam- supervisor drugs, doing her but that she ages. always believed that the true reason parties appealed. Both complaints was that she had made the Baker appeal, defendants’ failure to harden and defendants about On Vista First, in submit- present points: the lenses. three test tmg the punitive damages gust 13, 1982, issue of operates to the retroactively to bar recovery punitive damages the trial erred because the at trial on February 14, 1983, an action amendment to filed Janu- August 290.140 enacted § ary 12, 1979, a March service 1982, is in application retroactive letter. plaintiff’s recovery punitive bars dam- ages. Second, denying that in their mo- that, argue Defendants even though Ar- tions for notwithstanding the I, ticle of the Constitution of Missou- § or, alternative, verdict in the for a new ri, 1945,2prohibits any the enactment of ex
trial, the court erred in failed post laws, facto given 290.140 must be present substantial evidence that point retroactive effect. Defendants service letter falsely stated the reason recognized four exceptions prohibi- discharge. against tion Finally, denying retrospective operation of a (1) legislature statute: where the Vista’s motion for a mistrial manifests the trial court a clear intent that the statute be retroac- plaintiff’s erred because evidence went be- tive; (2) procedural where the statute is yond scope requested the limitations and does not affect substantive Vista its motion in limine. (3) rights of parties; where the statute On her cross-appeal, Mrs. asserts does away impair not take vested the trial court in dismissing erred acquired existing laws; (4) under petition III of her Count failure to state where the statute in a results reduction in a cause of action. a penalty punishment. Defendants be- *5 Inasmuch lieve that challenges as Vista their case falls within all of the sub- these exceptions. missibility of the case on Count II of the petition, we consider the evidence in the light most favorable to A. accept true, such giving evidence as exception, As to the first defendants ar-
plaintiff the all benefit of favorable infer- gue legislature that the has shown clear reasonably ences to be drawn from the operate intention that the is to ret- statute disregarding evidence and the defendant’s rospectively. argument Their has three except evidence as it plain- insofar aids the (1) points: legislature expressly did not Orthwein, tiff’s case. Wells v. 670 S.W.2d say applied prospec- that the be law is to (Mo.App.1984). tively; (2) language sug- of the statute I. Damages Punitive gests is statute not limited to (3) application; and prospective the amend- point Defendant’s first removing punitive damages ment reveals submitting trial court erred in the issue of disapproval punitive damages provi- of the damages punitive jury in implies legislative sion of 290.140 and § amendment to Missouri’s service letter retroactive. intent that the law be statute, 290.140,1 ap is retroactive its § plication. We are to decide arguments asked whether not Those do establish a 290.140, clear, specific legislature became effective on Au- of the which intention § employer requested All sectional es that the letter, not issue the 1. references are to Revised Statutes did Missouri, 1978, may amended. be said liable for nominal punitive damages; punitive no Before its award of amendment courts had judicially interpreted damages upon letter statute to the service under this section shall be based punitive damages. Deering include State ex rel. any the content of letter.” Corcoran, 1, (Mo.App. v. 228 n. S.W.2d 1983). I, 13, provides: post That amendment includes subsection 2 Article “That no ex § 2. pertaining law, which reads as follows: impairing obligations facto nor law "Any corporation provi- contracts, violates the which retrospective operation in its ... sions of subsection 1 of section shall be can be enacted.” compensatory punitive liable for but not dam- ages but in the event that the evidence establish- apply retroactively. general A the statute B.
presumption prevails against retroactive ef
Citing
exception,
second
defendants
In
fect of statutes. Protection Mutual
contend that the amendment to 290.140is
§
City,
surance
v. Kansas
551 S.W.2d
Co.
procedural
plain-
and does not affect
(Mo.App.1977).
In State ex rel.
rights. They say
tiff’s
that if
substantive
(Mo.
Corcoran,
Deering
This amendment banc), dealing had in- with an amendment legislature retroactive. If the application, 537.090, $50,000 it tended its retroactive removed the re- § This court will provided. would have so covery wrongful limitation in death actions. Moreover, imply provision. not such a amend- There the issue was whether an existing legislature repeals an when ment amount changing the recoverable statute, done so it is considered to have procedural, not substantive. The court savings general contemplation substantive, held that the statute affected statutes, 1.170 and 1.180 RSMo §§ parties procedural, pro- legislature specifically Unless the principle, not retroactive. Buder retroactive, repeal it is vides indistinguishable, and we follow it. The savings provisions presumed that these 290.140 affects a substan- amendment § incorporated by reference with are to be retroac- right and is not tive repealing if stat- the same effect as exception. under the second tive savings clause. ute contained its own omitted.) (Footnote case citations C. Intertherm, also, Arie v. See exception, defend- Referring to the third (Mo.App.1983);Protection is retroactive assert 290.140 ants City, v. Kansas Mutual Insurance Co. expectancy punitive dam- because the *6 has at 912. This court supra, 551 S.W.2d right until a vested ages does not become Deering v. recently followed ex rel. State foreign judgment. They cite numerous Broadcast Vaughan in Corcoran Taft plaintiff ac- principle cases for 35,724
ing (Mo.App. May No. WD judgment right only when quires a vested (Defendants 1985). assert that the statu deal with has entered. We been clauses, tory savings 1.180,3 1.170 and do §§ cases.4 Missouri apply plaintiff not in this case because has right punitive no vested to damages, Intertherm, an ar 648 S.W.2d In Arie v. later.) gument we address involving ques- a (Mo.App.1983), a case repeal becomes ef- proceedings had after the Repeal of Law not to affect §3. 1.170 by procedural acquired governed rules and thereunder. fective are effect, appli- are laws then in insofar any statutory provision repeal does not The of any right or estab- cable. affect act done or accrued prosecution any proceeding, in suit or lished authority, Peters v. also cite as any previous 4. Defendants commenced in civil case had or effect; Insurance No. 82- repeal but Connecticut General to the time when the takes Life act, right proceeding (D.C.Mo.) every remains This is an December provisions so and effectual as if the Court unpublished opinion as valid a U.S. District repealed remained in force. had Missouri of Missouri. for the Eastern District Pending, Re- How affected § 1.180 Actions decision of that bound to follow a courts are not peal Law. of interpret to Missouri when it undertakes court any plea, pending the time at No action or statutory provisions decided, Further, at the time Peters law. repealed be af- are shall undeveloped in Mis- issue was the law on this pro- repeal; the same shall fected decision, courts deal- Missouri souri. Since that ceed, statutory provi- respects, in all as if the chosen not to ing issue have with the same except repealed, that all sions had not been 290.140, tion of the of damages retroactive effect of his cause action for such awas expectation. the Eastern of this District court was mere Deering court held puni- asked to right plaintiff’s determine whether a to to right punitive dam- damages tive had judgment vested ages “was valid under the law at the time after been entered. The court said at 159: petition was filed.” The court further deprive plaintiff held that to of a cause of party appeal
Neither to this has cited provided by at action law the time the us ques- cases deciding Missouri this began simply action because the case had tion, bring and our research has to failed proceeded yet judg- not to trial and final however, any. has, forth Our research public policy.5 ment was not in accord with legislation surfaced three cases where course, in Deering Of the instant precluding punitive damages in a situa- case, filing integral part at the time of an tion akin to that we us have before plaintiffs of each cause action was the where prior entry held that courts right punitive damages. sue for of judgment plaintiff no has a vested right punitive damages and a statute The issue before now is us that ad- precluding punitive damages an award Deering, dressed and not addressed may constitutionally applied retroac- be Arie Musselman. That issue is tively; however, once plaintiff has a vesting plaintiffs right whether judgment had a awarding punitive him punitive damages may occur earlier than damages he right” has “vested said entry judgment. Deering time of a punitive damages deprived and cannot be “Yes,” says, agree. and we In Arie the punitive damages by retroactive language court’s is broader than it had to application precluding of a statute an question to decide before it. The punitive damages award of only question the had Arie court to decide enacted entry effect took after the entry judgment was whether the of the of judgment. the amendment statute was before right plaintiff to vest the thereafter, effective Shortly the same court was punitive damages. court was not again presented retroactivity is- right asked decide whether Corcoran, was vest- sue State Deering ex rel. judgment supra, ed before because the 230. There court already been when face, is, faced the entered the statute exact issue we Therefore, anything puni- whether the was amended. right had a question tive about that unasked at the time he filed cause said dictum, rejected part holding of action. obiter not a argument The court right precedential that Arie held On had no value.6 the other *7 punitive hand, damages began Deering to when the the action holds that cause of ac- plaintiff petition and that until judgment obtained a tion valid at the time the was was approach adopted by follow the the court in 6. “There is no doctrine better settled than that judicial language Peters. the decisions must be con strued with reference the facts and issues of to case, particular authority and again that apparently The Eastern District once precedent points decision as a is limited to those faced this issue in Musselman v. Anheuser- record, by Busch, Inc., of law which are raised con (Mo.App.1983). 657 S.W.2d court, by Arie, necessary sidered and to a deci plaintiff apparently already As in had his Bruner, (Mo. sion.” Parker v. S.W.2d judgment punitive for nominal and curiam; 1985) banc), (per quoting en from State before the effective date of the amendment Goodman, ex Baker v. 364 Mo. rel. (Unfortunately, judg § 290.140. the date of the (1954) (en banc); see S.W.2d also Coali given opinion.) ment is not Musselman Preserve on tion to Education the Westside v. plaintiff follows the rule out in set Arie that a City, right School District Kansas 649 S.W.2d acquires judgment a once vested has (Mo.App.1983). been entered. and, therefore, plaintiff private filed that at that in nature are fines but instead right by had juries punish reprehen- time a vested in his cause of levied civil damages. wrongdoer for punitive action The Arie and sible to deter conduct and conflict, Deering engaging type cannot be in as de- same cases of activi- assert, Welch,Inc., ty. fendants because do not ad- See Gertz v. Robert 323, 349, 2997, 3012, dress the same issue. U.S. 94 S.Ct. Probst, (1974); L.Ed.2d Probst v. plaintiff hold her We that when filed (Mo.App.1979). There- right punitive action had a vested fore, the origin while we concede damages. subject penal cause of action was crimi- earlier, As we noted defendants also con- statute, judicial interpretation nal apply that and tend 1.170 1.180 do not §§ conferring a civil cause action for ac- plaintiff right. here had because no vested persuades punitive damages us tual argu- just What we have said refutes that apply public policy the stated of both ment, but if held even we that 1.170 and 1.180. §§ punitive damages, the no vested agree, hold that is not We 290.140 § savings nar- apply. still would clauses applica- penal, thus 1.170 and 1.180 are §§ row construction that defendants would ble. give these is with our statutes inconsistent holding in Protection Mutual Insurance II. Service Sufficiency of supra, City, 551 S.W.2d Co. Kansas Letter Evidence wording 1.170 § A. operation 1.180 does not confine the § preservation of those to the sections point appeal second Defendants’ rights.” “vested denying erred in is that trial court notwithstanding for
motions or, alternative, trial a new verdict D. say II. failed They on Count exception, As the fourth defend evidence that present substantial argue 1.170 do not ants 1.180 § § false. The service letter service letter was and the apply penal because 290.140 § Boyle was terminated stated Mrs. given ef amendment should be retroactive Viewing supervisor.” “arguing with her amended, since, fect under 1.160 § Boyle, to Mrs. evidence favorable most creating the of 290.140 the law altered § evi substantial hold that she adduced we penalty punish and reduced the fense reasonably from which the could dence under previously cognizable ment Mrs. find that did defendants that section. supervisor” her “arguing in retaliation for resistance amendment, provided its Until 290.140 and directives illegal practices defendants’ service refusal to issue a that failure or filing complaints with OSHA punishable was misdemeanor letter FDA. in- It imprisonment. judicially fine or of ac- terpreted to authorize civil cause finding recovery maybe A essential As punitive damages. tion for actual and But evidence. proved circumstantial *8 Deering, supra, the court stated must be such those circumstances S.W.2d finding may the necessary support facts follow; reasonably savings and must be inferred that these We further believe guess may depend upon point existence not 1.170 and are statutes 1.180] [§§ work, conjecture speculation; and dispute is subject matter because every rea- damages. must tend to exclude punitive evidence the assessment one de- other than the conclusion compensatory sonable Punitive are not 1980). sired. Stark argue v. American Bakeries Defendants that substantial (Mo.1983) (en probative banc); 647 S.W.2d evidence must show that the rea son plain stated the service letter for Community Herberholt v. dePaul Health Center, discharge tiff’s is false. Williams v. Kan (Mo.1981)(en S.W.2d Transit, Inc., banc). City sas 339 S.W.2d (Mo.1960). Plaintiff met that burden. To establish that the service letter did testimony tends show that for a truly not state the reason for her dis- plaintiff Boyle number of months was the charge, plaintiff by must show substantial leader group employees of a of Vista who evidence discharged that she was not were concerned about Vista’s failure to arguing supervisor. with her Plaintiffs by practices abide industry reg- and federal evidence is with the consistent inference designed protect ulations the wearers of discharge that the reason for her was that eye glasses. Plaintiff was the filed complaints she OSHA and with who personally by was troubled her em- FDA. She prove adduced evidence to ployer’s requirement she initial the was an experienced qualified and em- falsely attesting performance cards ployee, long hours, that she worked of the hardening impact treatments and the completely that her satisfactory work was tests. She warned the defendants that she defendants. She characterized report would of law violations and re- good by supervisor by worker peatedly urged them to abide the law. president, Vista’s defendant David Baker. upon She was the who insisted The evidence she persistently was that performing despite those functions Mr. complained to the defendants about defend- told, do Baker’s admonition to as she was policies regarding testing ants’ and har- that he did not to hear want more dening lenses, declined that she to omit complaints from her about the firm’s dan- hardening testing, that she refused gerous practices and violations of the law. sign falsely attesting the forms to har- particular One fact in established dening testing, and impact that she and plaintiff’s confirmed by evidence and de- employees complaints four other filed with testimony fendant is most Baker’s own FDA, and the OSHA and that she was fired compelling. testified Mr. Baker that no long after that. one, including Boyle, had Mrs. ever told plaintiff’s Defendants assert evi using drugs. him Douglas that David taken dence as a whole is insufficient to Nevertheless, heard, he as he testi- when case, make a submissible that she did not did, Douglas falsely fied he present any evidence that Vista intentional charged reporting Doug- Mrs. maliciously, wilfully, ly, wantonly abuse, alleged despite plaintiff’s drug las’ plain failed to state the reason for true Douglas truth, request that he de- tell discharge. proof tiff’s in a burden nothing. fendant Baker did From his re- service letter claim out in is set Potter v. Douglas fusal to confront with the truth Manufacturing Milbank 489 S.W.2d protect plaintiff unjust and to from an (Mo.1972): “Plaintiff has no bur charge, jury reasonably could con- have proving den the true reason for his Doug- Baker and cluded either that Mr. Mr. discharge; negative burden is charac concocting las had colluded in an excuse to peculiarly because the reason is ter true fire or that Mr. Baker took advan- knowledge employer, within tage legitimate apparently of an excuse to showing truth assert event, burden gadfly. rid the firm a In either discharge employ reason for is on the that, ed reasonably have found could evidence, er.” See also Newman v. Greater Kansas under the reason stated all the City Baptist Community Hospital plaintiff's in defendants’ ser- Association, (Mo.App. vice letter was false. *9 fired, day contrary
The after she testimony was the of the at witness filed a unemployment subsequent claim for benefits in v. Multiplex trial.” Miller agency (Mo.1958); which she told that that she had Faucet 315 S.W.2d accusing supervisor been fired for her Hyatt, see also v. Welch S.W.2d (en using drugs. (Mo.1979) banc); Defendants contend that this and v. Bonastia contemporaneous Association, admission and other such Terminal Railroad (Mo.1966). preclude plain- admissions to co-workers S.W.2d note, recovery. tiffs fail to Defendants however, Mrs. testified in her B. pretrial and deposition at trial that she had Defendants’ next is that contention always believed that the true reason denying the trial court mo erred complaints her was the she had grounds tion for a mistrial on insistently so voiced about defendants’ presented by plaintiff evidence at trial was, course, practices. jury The free to beyond scope went of the limitations part testimony, reject- believe all or requested by defendants in their motion ing such it evidence as saw fit. See Bubke limine, injected into false issues the lawsuit Credits, Building v. Allied irrelevant, immaterial, upon prej and relied (Mo.App.1964). S.W.2d As we udicial, inflammatory evidence. observed, already upon
have
this review we
light
consider the evidence in the
most fa-
requested
Defendants’
in limine
motion
plaintiff, accepting
vorable to the
it
true
as
that the court exclude
giving
her the benefit of all favorable
statement,
testimony
all
argument,
it,
reasonably
inferences
to be drawn from
any
pertaining
or relat-
evidence
kind
Orthwein,
supra,
Wells
alleged
ing
any violations or
violations
532, just
jury
was entitled to do.
safety
and health
any state
federal
statutes,
regulations, guidelines or or-
any event,
opinion
Mrs. Boyle’s
as to
to,
ders;
specifically,
not limited
why
only
opinion,
fired was
an
Occupational
alleged violations of
opinion may
changed
have
as she re-
or the
Safety
Health and
Act
happened.
flected on what had
Food, Drug and Cosmetic Act.
Federal
reasonably
only
could
have concluded that
slowly
did it dawn on
specific ruling
record contains no
exchange
supervisor
heated
with her
motion,
motion
but their
defendants’
firing
Vista’s sham excuse for
a dis-
notwithstanding
the verdict
upon obey-
ruptive employee who insisted
the motion
states that
court denied
ing
endangering eyeglass
the law and not
trial,
limine. Before
counsel had met with
wearers.
chambers, and, although
in his
judge
limits,
does
the exact
the record
not show
plaintiff’s
if
accept
But even we
state-
testimony. But
judge
did limit the
(that
fired
ments
defendant
her for
Vista
plaintiff’s attorney questioned
when
a wit-
abuse)
accusing Douglas
drug
as state-
companies’
ness
Vista’s and other
about
fact,
conflicting
is that
ments
rule
lenses,
practices manufacturing optical
may
reasonably
statements of witness
attorney objected:
defendants’
explained
other facts and circumstances
Honor,
truth,
I see a line of
may
creating a Mr. Monsees: Your
tend to show the
object
developing here I’d
Adelsberger
questioning
question
jury.
my under-
I believe in chambers
Sheehy, 332 Mo.
59 S.W.2d
to.
Moreover,
standing
testify that
(1933).
was that he could
“prior
of a
statements
witness,
complaints,
maybe he can
though
par-
he made
even
the witness
accompanied her with
testify that he
ty,
impeachment,
while admissible
do
complaint,
the basic reasons
destroy
prima
probative
effect
facie
*10
making
for
complaint; anything
jury’s
the
the
verted
attention
the
true
experience
years,
prejudice
over his
in all
issue and
to
these
served
and inflame
that,
jury against
that
did
the
going
we
this
I’m
to
the defendants.
and
object
being
have to
as
irrelevant and
argument
The answer to defendants’
is
portion
immaterial to the service letter
Boyle’s complaint
nature of Mrs.
of this case.
these,
FDA
was
relevant
reasons:
showing
The
The
It
objection
Court:
was evidence
the true nature
overruled.
and source of
conflict
led
the
that
to her
permitting
type
testimony
I’m
of
this
discharge because defendant Baker himself
to
expe-
establish what had been their
falsity
Douglas’
admitted the
of David
ac-
testing,
rience in the
as to
industry
plaintiff
of
thereby
cusation
and
estab-
forth,
and so
and that
not
was
ground
lished
absence of that
for his
happening at the
place
defendant’s
abrupt firing
plaintiff.
This evidence
business,
and
made
complaint.
directly
bore
on the issue of the truth or
As to whether or
that
required
not
falsity of the service letter.
by any law or regulation, that is not
going
permitted
addition,
as evidence in
the evidence of the nature of
plaintiff’s complaint
this case.
to the FDA estab-
possible
lished
least four
motives for
acknowledge
The defendants
wanting
plaintiff:
defendants
to be rid of
permit
court
did not
evidence of viola-
(1)
conduct;
retaliation
her disruptive
regulations.
tions of law or
On the two
(2)
preclude
complaints by
plain-
further
occasions
it appeared
plaintiff
when
tiff; (3)
discourage
such
in oth-
conduct
present
evidence,
was about to
(4)
employees;
permit
er
Vista to
court
objections
sustained defendants’
practices.
continue
relevancy
its
The
jury
disregard
instructed the
testi-
it,
the evidence is self-evident: based on
mony.
jury
reasonably
could
conclude that the
The
properly
denied the motion
firing
defendants’ motive
was
limine.
testimony
was relevant. “Evi
arguing
supervisor.
not her mere
with her
dence is relevant if
prove
it tends to
reason,
For
same
defendants’ conten-
disprove
issue,
a fact in
or to corroborate
granted
tion that the court should have
evidence which is relevant and which bears
Moreover,
mistrial has no merit.
their mo-
principal
on the
issue.” Arie v. Intert
They
tion
not
ask
timely.
did not
for a
herm,
Inc., supra,
had been
to
a truthful
wages
anguish and
alleges lost
and mental
letter,
read
that letter would have
service
punitive damages.
seeks actual
Boyle
discharged for
as follows: “Mrs.
was
disregard
FDA
refusing
mandate
A. Dake v. Tuell
lenses,
impact-test eyeglass
harden and
upon
exception to
Count III is based
an
declining falsely to attest to such harden-
doctrine,
rule
employment-at-will
testing,
reporting to the
ing and
and for
recently
most
re-enunciated
Dake v.
hardening
practice
FDA
of neither
Vista’s
Tuell,
(Mo.1985)(en banc),
pital, supra, 328 S.E.2d 818, (no 826-27 employees tion report cases involves who right, notwithstanding has the wrongdoing public or or violations law doctrine, employment the at-will to fire an employers or policy by employ- their fellow deprive him his livelihood such case is Brown v. ees. The latest liability without civil because he refuses to Physicians Mutual Insurance testify in untruthfully incompletely a plain- (Ky.App.1984), S.W.2d 836 which case); Delaney v. Taco Time Inter court tiff, secretary for a the defendant insur- national, Or. P.2d company, procedural irregu- ance noticed (1984) (employer wrongful liable part improper larities and conduct on the ly discharging re employee because he reported misgivings her salesman. She sign defamatory potentially fused to supervisor attempted report to to obli statement violation of his societal them state insurance commission. law); Lucas v. gation imposed by Oregon sued, alleging company She fired Brown, (8th Cir.1984) 736 F.2d appeals her for her efforts. The court of a (construing required Arkansas law to hold that public policy held that em- that her prostitute ployees report woman fired for refusal violations of the insurance authorities, an em- sleeping self should code to the state with her foreman (at ployee Continuing, 880), fired con- who claims that he was said “The court trary to of action policy retaliatory states a cause foundation of the tort dis- discharge. for wrongful charge poli- lies in protection public cy, public policy and ... clear a favor[s] In McQuary v. Bel Air Convalescent investigation prosecution criminal Home, Inc., Or.App. 684 P.2d offenses.” (1984), alleged that she was threatening report fired for the state Among frequently the most cited cases is nursing health division violations of a home Foods, Inc., Teddy’s Frosted Sheets Nursing patient’s rights Oregon under the (1980), in Conn. 427 A.2d 387-89 Rights. Home Bill of The court Patient’s complained Sheets that he fired duty report held a job quality control from director analogous duty violations to serve operations manager reporting to his discharge A a or to avoid defamation. supervisors deviations defendant's reporting of an at-will a viola- vegeta- in that standards and labels some policy proper tion of the state’s bles were and some meat com- substandard authority for fulfill- would be re- ponents underweight. Such deviations ing obligation ac- a societal and would be misleading labels that sulted false tionable. Food, violated Connecticut Uniform Drug and Act. The court sus- Cosmetic Another such case Palmateer v. Inter plaintiff’s petition, holding that tained “[n]o 124, 52 Ill.2d national Harvester has to our case been called attention 13, 15-17, Ill.Dec. 421 N.E.2d 878-80 which, despite outrageous cir- egregiously (1981). managerial employee There cumstances, employer’s contract a local supplying fired for information to permitted competing to override have been agency law an Interna enforcement public 427 A.2d policy,_” claims of Id. in employee might be tional Harvester (at 388) 387. The added “that court code volved violation of the criminal bargain- myriad employees without investiga assist agreeing and for in the employment con- ing power to command Recog the employee. tion and trial of term are entitled to a tracts for definite plaintiffs right of retali nizing action for judicial protection when modicum 878) (at atory discharge, held *15 by good punished citizens conduct pol discharge public a contravenes “[w]hen employers.” employer icy way has committed However, employer legal wrong. First Finally, category, this Harless v. right to fire workers at will retains the Bank, 116, W.Va. 246 S.E.2d National 162 public no clear cases ‘where mandate 270, (1978), that where the de- 276 holds (Leach Grain policy involved’ v. Lauhoff manager con- of the fendant bank’s office 1022, 1026, Co., (1977), Ill.App.3d 9 Ill. 51 employ- an department, credit at-will sumer 634, 1145).” Illinois N.E.2d The Dec. 366 ee, reported to alleged he found and that 16-17, (52 421 Ill.Dec. at court also held by the supervisors intentional violations his 879-80) N.E.2d that at Consumer Credit bank of state important or public policy more no [is] and federal laws and was Protection Act favoring than more fundamental the one so, petition discharged doing for his stated lives and protection the effective a cause of action. The court held citizens.... property of legislature establish a clear and intended to public unequivocal policy consumers statutory or specific No constitutional pro- the Act were to be credit covered an take provision requires a citizen to public policy, the Such manifest tected. prose- part ferreting in the out and active said, by a not be frustrated should crime, never- court public policy cution of but seeks to employee who holding that a bank crimefighters .... theless favors citizen
875 compliance all, ensure may with the compensation Act be the worker’s statute it- firing fired and have no prohibits cause of self an employee action because wrongful discharge. he 246 has exercised his Id. S.E.2d under stat- 276.9 ute. only foregoing
A The lists include two third Mis category public and fourth anything pub souri cases which like the policy exception cases have been well devel- policy exception lic to the at-will doctrine oped in a of jurisdictions, number applied. In Smith v. Arthur C. Baue only tangential have bearing is- Home, 249, (Mo. Funeral 370 S.W.2d 254 case, sues in this simply and that is 1963),without mention of the newborn and they clearly establish the efforts of the yet undeveloped exception, and unnamed years courts in temper recent the harsh- the court decided an is liable ness application of the strict of the at-will wrongful to its discharge employment doctrine. The first of those where it fires exercising categories general additional is that group right bargain his constitutional to choose frowns on of an at-will representatives ing bargain for him with employee whose acts are those that sound employer. Constitution, The Missouri public policy encourage, would for exam- I, 29, Article has created a modified at- ple, acceptance of a jury duty, call to seek- doctrine, said, will the court because it de office, ing public asserting a right to elect right clares as between individuals the designate bargaining repre- collective surely legal violation of which is wrong. sentatives, joining a labor union.10 category fourth disap- includes those cases apply The second Missouri case to proving retaliatory discharge employ- public policy exception is Hansome v. ees whose sin filing was the of a 273, Cooperage, Northwestern 679 S.W.2d compensation worker’s (en claim.11 In (Mo.1984) banc). some 275-76 The court jurisdictions, Missouri, for example that, recognized but not there force of the Hotels, Co., category 273, Cooperage Parnar v. Americana (Mo.1984) 679 S.W.2d 276 370, 625, (1982), Co., (en banc); 65 Haw. 652 P.2d 631 Clanton v. Cain-Sloan 677 must not be There 441, overlooked. (Tenn.1984); Hansen v. Har S.W.2d 444-45 alleged hotel her fired because 394, rah’s, (Nev.1984); Goins v. 675 P.2d (not testimony yet given) called for or before a Co., Mich.App. 185, Motor Ford N.W.2d grand jury investigating federal viola anti-trust 184, (1983); Company Firestone Textile 188-89 might damaging tions defendant. Division, Firestone & Co. v. Mead Tire Rubber recognized employee’s right this at-will ows, 730, (Ky.1983); Murphy 666 S.W.2d 732-33 wrongful discharge sue public under City Topeka-Shawnee Department County policy exception. Services, Kan.App.2d 488, Labor 630 P.2d Kroger (1981); Sventko v. The Home, 10. Smith v. Arthur C. Baue Funeral (1976); Mich.App. 245 N.W.2d 153-54 (Mo.1963); Thompson v. St. Motorola, Inc., Kelsay v. Regis Paper Ill.2d Ill.Dec. 102 Wash.2d P.2d 559, 562-65, (1979); (1984); Allegri 384 N.E.2d 356-59 Mar Providence-St. *16 Co., Center, garet Frampton 659, v. Central Indiana Health Gas Kan.App.2d 260 Ind. 9 P.2d 684 1031, 425, (1984); 249, (1973). Miller v. Review Board of 1036 297 N.E.2d 428 Division, Employment Security The Indiana 436 holding discharged a Cases that worker for 804, v. Reuther (Ind.App.1982); N.E.2d 810 filing a claim cause has no of action include: Williams, Inc., 28, Fowler & Pa.Super. 386 255 Co., 789, Bottijliso v. Fruit Hutchison N.M. 96 Hocks, 119, 210, (1978); Nees v. A.2d 120 272 Or. 992, (includes (N.M.App.1981) 635 P.2d 996-97 512, (1975) (en banc); Montal 536 P.2d 515-16 excellent statement the rationale for this mi Zamora, 69, 401, vo v. Cal.App.3d Cal.Rptr. 7 86 nority position); Kelly Mississippi Valley v. Gas (1970); Glenn v. Clearman's Golden Cock 404 874, (Miss.1981); Segal v. So.2d 876-77 397 Inn, 793, 769, Cal.App.2d Cal.Rptr. 192 13 89, (Fla. Corp., 364 Arrow Industries 90 So.2d (1961). 771 App.1978); Dockery Lampart Table v. (1978); holding discharged N.C.App. that a for S.E.2d Cases worker 275-76 filing wrongful (Ala.1978). a Tapley, claim have cause of action for Martin v. So.2d Hansome v. discharge Northwestern include: statute, 287.780, em- into though
amended
an at-will
same extent as
written
the
§
ployee
wrongful
States,
a cause
has
of action
statute.”
v.
Archambault
United
discharge
Cir.1955),
discharge
(10th
where the
of his
(citing
cause
224 F.2d
Atchison,
he exer-
Topeka
Railway
is established
be the fact that
&
Fe
Co.
Sanie
right given
Scarlett,
cised a
him under the worker's
57 S.Ct.
v.
U.S.
compensation
Toulmin,
court
there
(1937)).
statute. The
877
discharge,
considering.
ful
duty
the issue we
laid upon
regula-
are
them the federal
Totally
considerations,
aside from those
we
tion and to continue to insist that
their
believe that no modern Missouri court
employees
might
She
do
same.
have
would, on
in
egregious
presented
facts
added,
clearly
as the record
indicates and
Faulkner,
against
Bell v.
decide the case
believed,
jury apparently
that she was
appeals
Bell as the court
in
did
1934.
refusing
also fired for
to violate the FDA
Smith v. Arthur C. Baue Funeral
regulation,
persisting
hardening
and
Cf.
Home,
(Mo.1963)
supra,
tion before us. The be may same said of here, bearing directly upon those the em rely each of the other cases defendants ployer’s business. upon on this issue. illustrate, many As decided cases fired,
Plaintiff
according
employment
III,
burden of
at-will
doc-
Count
because she
defendants
warned
falling
heavily
trine seems to
most
notify
that she would
the PDA of their
harshly upon professional
upper
illegal practices
if
stop
did not
because,
employees.12
despite
warnings,
They
defendants middle level
have the
positive
protection.
to continue
violate
employ-
chose
Most are at-will
least
Walther, Inc.,
(Ala.1982)
Examples
employees
(person
are found in the
So.2d 761
following
Regis
attorney;
years
Thompson
Paper
cases:
v. St.
nel director and in-house
with
Co.,
(1984)
company);
Michigan
102 Wash.2d
ees and few have un- serious authorities misconduct that consti- violations the law tutes and of such well individually negotiated ion or contracts. clearly public and established mandated They lose, frequently have the most to policy, employee the has a action cause of being long-term the employees who have wrongful in tort dis- greatest responsibility and substantial charge. highest expectations investment in and the they plaintiff Boyle from their are at an In this case careers. Often has stated discharge wrongful cause action for age replacement when life and their against alleging defendants programs re- medical insurance and their report threatening fired to plans impossible. tirement are difficult or practices Food their activities and to the They are to the im- the most vulnerable Drug Upon Administration. remand it proper employers who find demands if permitted should wishes she profitable take chances anti-trust with incorpo- petition III of her amend Count violations, and consumer fraud environ- seems allegations rate those the evidence pollution, mental health-related miscon- which, support liberally con- when duct, fraud, procurement defense strued, imply. III seems to Count employment like. The doctrine does at-will Accordingly, judgment reverse we include, privi- contemplate require peti- circuit on Count III of the employ- in the lege subject its count circuit tion and remand that liability ees to the civil and criminal risks of proceedings; in other court for further all entails. participation in such activities we respects affirm public policy exception is narrow circuit court. application enough scope to be no its operate employers threat to who within J., KENNEDY, concurs. clearly mandates of the law and established BERREY, J., by way sepa- dissents policy duly adopted public as set out opinion. rate trou- employers laws. Such will never be BERREY, Judge, dissenting. policy
bled because public exception operations practices majority not vio- respectfully will I dissent from the pronounce- opinion. view of the recent public policy. late will em- regarding ment of at Accordingly, employer has Tuell, where an 687 as in Dake v. ployees set forth discharged 191, 1985), employee (Mo. an at-will because I must banc 193 the law or refused violate dissent. mandate of any well established and clear
public policy expressed in the constitu
tion, regulations promulgated statutes and statute, employ
pursuant to or because the superiors public reported or to
ee
1,
Orgain,
company); Keneally v.
186 Mont.
years
company);
v.
year;
Palmateer
3
with the
Co.,
(account
years
(1980)
manager;
52
7
Ill.2d
P.2d 127
International Harvester
85
606
(1981) (management
Teddy’s
876
company);
Ill.Dec.
421 N.E.2d
Frosted
Sheets
with
years
company);
(1980)
Mau
position;
Foods, Inc.,
16
with
427
Conn.
A.2d 385
179
Bank,
308, 299
207 Neb.
Omaha National
manag
operations
(quality control director and
room;
(1980) (supervisor of mail
N.W.2d 147
er;
company);
years
Harless v. First
4
with the
profit-shar
program,
participant
in retirement
Fairmont,
246
162 W.Va.
National Bank in
receiving
ing plan
benefits
health insurance
(1978) (office manager of bank’s
270
S.E.2d
bank;
bank);
years
Pierce v.
with the
department;
years
with
consumer credit
Corp.,
84 N.J.
Ortho Pharmaceutical
bank);
v. Atlantic
and Roberts
Richfield
doctor,
(medical
(1980)
director of
A.2d 505
banc)
(en
(1977)
P.2d
Wash.2d
research/therapeutics;
years
with
medical
supervi
(lower
mid-management
with
Tamney
company);
v. Atlantic Richfield
duties;
company).
sory
years
with
Cal.Rptr.
610 P.2d
Cal.3d
(retail
(1980)
representative;
years
sales
notes
in,
requiring
that the methods used
Krauskopf, Employment
J.
Discharge: Survey
for,
facilities and controls used
ture,
the manufac-
Rule,
Critique
the Modern At Will
storage,
packing,
and installation of a
(1983)
U.M.K.C.L.Rev. 189
at 261.
good
device conform to current
manufactur-
The court in Smith v. Arthur C. Baue Funeral
ing practice,
prescribed
regulations,
such
Home,
(Mo.1963),