EDWARD J. BURENS, RESPONDENT, V. WOLFE WEAR-U-WELL CORPORATION, A CORPORATION, APPELLANT.
Kansas City Court of Appeals.
January 5, 1942.
158 S.W.2d 175
“The theory of the instruction as given was that only one, and not both, of the events or circumstances involved could be the proximate cause of the death. When more than one act or event takes place, either of which might in itself have resulted in death or injury, and the two acts or events are in no way related, but are merely successive, many cases hold that only one can be said to be the proximate cause. But that is not the situation here. The collision and the condition of the railing were directly related in the accident.”
It is to be observеd that the last two cases involved an obstruction and a defect in public highways, and the breach of duty was one owing to the public. They are clearly distinguishable from master and servant cases, and there is ample reason for the rule that one causing a danger on highways dedicated to public use should rеmain liable until the danger is removed.
A large number of additional cases and authorities are submitted for consideration, many of which sustain various and sundry propositions and announce legal principles, but none of which are controlling upon the questions here ruled. Further reference to them is unnecessary in view of the conclusion reached. During the trial, the case at bar was fully explored and completely developed as shown by a record of 566 pages. It has not been made to appear that defendant is legally liable for plaintiff‘s injury. The judgment should be reversed. The Commissioner so recommends. Sperry, C., concurs.
PER CURIAM:-The foregoing opinion of BOYER, C., is adopted as the opinion of the court. The judgment is reversed. All concur.
Schultz & Bodney and Walter A. Raymond for respondent.
At the close of plaintiff‘s evidence the court marked given an instruction to the effect that under the law аnd the evidence the verdict must be in favor of defendant, Dawson. There was no verdict under this instruction. At the close of all the evidence counsel for plaintiff announced: “Now plaintiff dismisses as to defendant, Dawson.” The case was submitted to the jury upon instructions authorizing the recovery of both actual and рunitive damages against the corporation with the result above stated. The corporation has duly appealed.
The errors are assigned in the brief under points and authorities. It is asserted with alleged reasons that the court erred (1) in refusing to sustain the demurrer of defendant at the close of all the еvidence; (2) that the verdict for actual damages is excessive; and (3) that the court erred in giving and in refusing to give certain specified instructions.
There is evidence of the following facts: Plaintiff was employed by defendant corporation from 1927 to October 24, 1938, when he was discharged. The defendant was a wholesale distributor of shoes with a branch office at Kansas City, where plaintiff was employed doing work in the warehouse and on the road. At the time of plaintiff‘s discharge, T. W. Dawson was superintendent and manager at the Kansas City branch and had been for approximately one year. Immediately after plaintiff‘s discharge he obtained employment with a Mr. Carlat who was operating a retail shoe shore in Kansas City and handling the Wolfe Wear-U-Well line of shoes. When plaintiff returned after lunch on the first day of his employment he was
When plaintiff cаlled on Dawson to obtain a letter he was accompanied by his brother-in-law who testified in plaintiff‘s behalf as to what occurred at that time, and in describing the conversation between plaintiff and Dawson, he said: “Well, at first I didn‘t pay much attention until I heard Ed ask him for a letter of recommendation and he said he wouldn‘t give it to him, and he said, ‘Will you give me some kind of letter showing how long I worked here?‘, and he said, ‘No, I won‘t give you that.’ And Ed said something about the law, ‘You know the law’ or something, and he said, ‘Yes, I know that, but I ain‘t going to give you any letter.‘” He also quoted plaintiff as saying to Dawson: “I can‘t get a job any place. You keep me from getting any work.”
Plaintiff made diligent effort to obtain work and made application at numerous places, including the Western Auto, Parkview Pharmacy, Webb Belting Company, Harris-Patton Employment Agency, and Missouri Employment Agency. Plaintiff failed to secure permanent employment until September, 1939, when the State еmployment agency succeeded in placing him with the Hood Rubber Company. From the time of his discharge October 24, 1938, to September, 1939, plaintiff earned not to exceed $100, but applied for and received twelve weeks’ unemployment compensation. The amount was not shown in evidence.
While emрloyed in defendant‘s warehouse, plaintiff‘s wages were stated to be $80 per month or $42 or $43 every two weeks. When traveling on the road for defendant his salary was $90 a month. The
The business agent fоr truck drivers and warehousemen attempted to have plaintiff reinstated, and in doing so said that Dawson claimed that when Burens was on the road he had not been honest in his dealings in several instances, and that Dawson spoke emphatically and not in a friendly way.
The testimony of manager Dawson was to the effеct that he came to Kansas City as branch manager in June, 1937; that plaintiff was working in the warehouse and desired a job on the road which Dawson granted at a pay of $90 per month; that he was on the road for a short time and did not get along well and requested that he be taken back into the warehouse which was done. His work was unsatisfactory after returning and for some reason he would not co-operate with other employees, and numerous complaints were made about the way he was doing his work by other employees of the company, and that it was necessary to let him go. The manager further testifiеd that he had worked in Pennsylvania before coming to Kansas City and had never heard of a service letter until the day when a copy of the summons and petition was served on him in this case; that plaintiff asked him for a letter of recommendation, but not a service letter, and that he told plaintiff it would be better tо have his prospective employer contact him, or he would write him a personal letter and send him a copy, and that plaintiff agreed to this. He denied the testimony of Carlat that he had demanded plaintiff‘s discharge, but admitted that he had discussed the matter with Carlat, stating that he did not believe plaintiff was quаlified for a position as a shoe salesman; that he entertained no bitterness or ill-will towards the plaintiff, but was friendly and had tried to promote and help him. There was other evidence both on behalf of plaintiff and defendant, but the above is deemed sufficient for the purpose of dealing with the points raisеd on appeal.
In reference to the demurrer, appellant insists that it was error for the court to submit the case to the jury and permit a verdict against the corporation after the court sustained the demurrer of Dawson, and bases its argument upon the proposition that the doctrine of respondeat superior should have been applied the same as it is applied in a negligence case where liability is determined from the act of the employee. A number of cases are cited announcing and applying the rule that where an employer and employee are sued jointly on account of the negligence of the employee, no verdict or judgment should be permitted to stand against the employer if the verdict is in favor of the employee. There is no question about this being the law in that class of cases. Appellant insists that the liability of the corporation does nоt arise out of the statute, but out of the relationship of master and servant with its employee. The true
There is another reason why appellant‘s argument cannot prevail. Even though the court marked “given” the demurrer in behalf of Dawson, plaintiff dismissed suit against him and had the right to do so at any time before the case was submitted to the jury. [Pilkington v. Pilkington, 230 Mo. App. 569, 93 S. W. (2d) 1068, 1072.] There was no submission of the case against defendant Dawson; the jury never returned a verdict for defendant Dawson, and there was no adjudication exonerating him. After plaintiff dismissed suit against Dawson, he stood in the same position as though he had sued the corporation alone. There was no error in overruling appellant‘s demurrer for the reason assigned.
The second point is that the verdict for actual damages in the sum of $800 is excessive because it is more than plaintiff‘s wages would have amounted to during his period of unemployment, after deducting $100 which he earned in that period and the amount of unemployment compensation which he received. It is argued that since the amount of unemployment compensation was not shown nor considered by the jury the excessiveness of the verdict is not capable of ascertainment and the matter cannot be cured by a remittitur.
Defendant is not entitled to the benefit of mitigation in this case because therе was no plea to that effect. The burden was on defendant to plead and prove the mitigating facts. [South Side Buick Auto Co. v. Schmitter, 5 S. W. (2d) 687; Simpson v. Ball, 145 Mo. App. 268, 272, 129 S. W. 1017, and cases cited.] Furthermore, it would not have been proper for defendant to plead and prove unemployment compensation received by plaintiff. Such compensation is nоt a proper subject of mitigation. It is a grant allowed according to a beneficent economic policy of the State, designed to alleviate adversity and promote the public welfare. It is not earned income of a recipient during a period of unemployment to be used in mitigation of a wrong responsible for the loss of employment. A wrongdoer cannot diminish his liability to the extent of such contributions, nor will he be permitted to benefit by payments made to the injured person from collateral sources, whether in compensation or as gratuities. [8 Ruling Case Law, sec. 105, pages 554, 555; 25 C. J. S., sec. 99, pаge 648.]
The court refused defеndant‘s Instruction G, which was to the effect that plaintiff was not entitled to recover more than nominal damages. This is said to be error because there was no evidence that any person or company refused to employ plaintiff because he did not have a service letter from the apрellant. Plaintiff was not barred from recovery of substantial damages for the reason assigned. He was not required to prove his case by direct and positive testimony. The facts and circumstances shown in evidence are a sufficient basis for the jury to infer and find that plaintiff was hindered and delayed in obtaining employment by the act of defendant in refusing to furnish him the service letter. [Stephens v. Lever Bros. Co., 155 S. W. (2d) 540, 542.] Plaintiff applied for such letter shortly after his discharge and was unable to obtain it. He lost about eleven months’ time. He was asked at various places where he applied for work if he had a service letter. Defendant‘s manager failed to answer a letter of inquiry about the plaintiff from one prospective employer, and caused his discharge from the first employment that he obtained. The evidence is sufficient to support the verdict.
Plaintiff‘s Instruction No. 1, authorizing recovery of actual damages is said to be erroneous for the same reason given in reference to Instruction G, and because it is inconsistent with the peremptory instruction given by the court discharging defendant Dawson. What has been said heretofore disposes of these objections contrary to the contention of appellant.
Instruction No. 2 is said to be erroneous in authorizing the award of punitive damages because Dawson went out of the case. The point has been ruled. The verdict is moderate. No reversible error has been shown. The judgment should be affirmed. The Commissioner so recommends. Sperry, C., concurs.
PER CURIAM:-The foregoing opinion of BOYER, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.