*1 575 Railway Joseph Respondent, Company, Belt Lyons, H. St. J. Appellant. (2d) 84 S.W. City Appeals, September 15, 1937.
Kansas Court of *3 respondent. Randolph Randolph L. Vermillion & Niles for and Brown, Douglas & appellant. Brown for pe
REYNOLDS, plaintiff On September1, 1933, filed C. recov seeking the county, in the circuit court of Buchanan tition damages. petition punitive from of actual and ery defendant alleged and upon the counts, is based was in two the first which a serv give refusal of defendant plaintiff unlawful and failure 1929; and 4588, Statutes letter, ice in violation of Section Revised $10,000.- sought recovery $2,448.00 actual and said count first alleged damages. upon 00 punitive The second count is based as from service wrongful discharge plaintiff by defendant its cer violation and breach of a engineman, without cause and in an and recovery $2,448.00 actual sought and also tain contract damages. complained $10,000.00 punitive count, In each the acts alleged wrongful, malicious, wan to have been justification legal or excuse on defendant’s willful, ton, by malice, ill on the spite, will have been induced part, and to plaintiff. toward part of operating a switch engaged the business
The defendant Joseph, Missouri. After ad- city of in the St. railroad terminal employment capacity former corporate mitting made alleged by it, petition, as count of the each of each general allegations petition and denial of all other count thereof. 1934,
Upon January, trial term of a before the at the actual for for one dollar court, were returned verdicts damages upon damages upon $10,000 punitive each and for count for judgment was rendered which verdicts count, first plaintiff in accordance therewith. at the same term
Thereafter, required within the time judg- for a trial arrest of court, defendant motions new filed ment. and in arrest motions for new trial
Upon consideration of the made; remittitur, which was judgment, a directed sum; final judgment reduced in said amount $1.00 actual judgment as corrected entered reduced and $4,000 punitive damages upon each count and judgment count; for new trial in arrest of and the motions first judgment finally entered, the de- were overruled. From such as appealed. fendant tending is evidence to show that entered defend-
There September 8, 1902, roundhouseman; ant’s service that he promoted fireman, be a then to be roundhouse soon thereafter foreman, 1907, engineer, from time October, then until June remained in defendant’s service continuously discharged Lawrenson, at time when he one having roundhouse foreman master mechanic authority employ enginemen. men in. discharge, or about the he asked for service letter At time of *4 he wait his told Lawrenson that would have to until and was checks, in. came When he returned for his he was asked checks “Yes, letter, replied, if he a Lawrenson wanted Thereupon, if there letter it.” wrote is a I want Lawrenson following plaintiff, stating letter and delivered higher acting up. tiff at the time from that he was orders Railway Joseph Company “St. Belt Joseph, St. Mo. “South 13, 1932. “June Whom “To Concerned: Lyons Ry.
“J. H. the service St. Joseph entered Co. Belt 8, Man; Joseph, Sept. Mo. as of St. on Round House dismissed company working 13, 1932, June from the service locomo- unsatisfactory. fireman. Service tive
“W. H. Lawrenson.” being plaintiff, to show that evidence tends dissatisfied supervisor A. C. letter, Vliet, Van de- with such called affairs, railroad, activities, complaint' fendant’s made him from concerning same, attempt an to secure discharge. a Van letter cause of and to ascertain the get. going Vliet to him he stated that he had all that Plain- tiff, ranking in turn, applied Hastings, R. E. executive oné actively officer charge business. was sent from defendant’s He again first period year. one to the other and back of about one Hastings told would override inferior officers. he his. get The result was that that he was able to Jetter letter written position Lawrenson. Lawrenson never held the superintendent general manager corporation of defendant had never, engineman; thereto, written a service letter prior nor he know much did about such his discharge, duties. After numerojus plaintiff sought employment, applications new making- therefor, any. instances, but was unable to obtain In ex- some given hibited the which Lawrenson him. He afterwards Van letter, returned to Vliet him for a proper and asked might get job., so clarify that he one what cause of Van give was. Vliet refused to one. tending October,
There show .that (hereinafter Belt) sometimes referred to as the and the Railway Union Company (hereinafter Terminal called the Union engaged Terminal), both in the operation of and terminal switch Joseph, St. came ownership railroads at under the common Allegheney and, Corporation, Swearingens; controlled the Van economy operation, management op- means and the eration both roads were consolidated under one and the same management. 1, 1930, Hastings, August president About vice ranking Terminal, Vliet, executive officer the Union and Van general manager president same, charge vice took president As general affairs of the defendant. vice manager duties, Terminal, the Union Van Vliet’s spread the defendant over general yard made supervisor roads, until he was master and ©fboth R. Barclay, Superintendent, Sack, manager, J. 0. L. of defend- consolidation, being Lawrenson, ant at the time of retired. foreman roundhouse for defendant until who had been the time consolidation, master mechanic super- became and mechanical management; placed charge new intendent under of all engine (including plaintiff) working employees prop- both authority employ ; discharge engine- erties and was *5 supervise July, their duties. In 1930, the men well defend- yards management notice effect that the posted ant in its to the a supervise thereafter Terminal would op- Union defendant’s that, prior appear to-the time of erations. It would the consolida- Union management operations roads, tion of the two Loco- agreement Terminal had made an with the Brotherhood working Enginemen rules, motive wages, Firemen and as to fire- apply engineers conditions employment to the its men, which which inwas at the time of the consolidation and force discharge. up continued in after of plaintiff’s force the time appear corporations not two consolidated does ever as such. appears discharge, years preceding his twenty over grievance committee, repre- acted as member of the dealings
senting enginemen, employees in their negotiated employer. capacity, their had, with In this he agreement governing enginemen. working with defendant a grievance subsequent Plaintiff remained member of this committee consolidation; grievance com- and, September, to the agreed defendant, through supervisor, Vliet, mittee Van with adopt employment behalf of the Union Ter- the contract theretofore force on property Brotherhood minal between Terminal and its the Union Enginemen. Copies Locomotive Firemen contract were of this men, signed furnished each of defendant’s and each man contained, delivery for his thereof to him. This contract copy among others, provisions: following 16—Seniority Assignments.
“Article assigned gov- “(a) jobs shall be Rights regularly runs or by seniority in the erned service. Representation. 18—Discipline and
“Article discharged, suspended engineer shall be “(a) No or fireman just placed against his record without or suf- or have notation charged fireman of- engineer or with an When an is ficient cause. discharge, suspension his or if sus- which warrant should fense discharge (except be sus- shall inflicted tained, suspension or thorough investigation investigation) without pension pending having jurisdiction, days official (5) before the within five him in the engineer fireman of choice assist or he have an orHe will to examine witnesses. investigation, permitted who be a copy of the evidence furnished with representative shall be investigation, for dis- which will be the basis brought out at such engineer or is fireman called When administered. cipline purpose what in advance for he investigation notified he shall be called. result engineer fireman is satisfied “(b) If right appeal his ease investigation, shall have the he Manager. In General case Chairman through General
' unjust, subsequently found shall suspension
581 reinstated, and, regular engineer be if a fireman, or for all paid be time he would have engine run, during period made on his or suspension or discharge; time if an be man, paid extra he will lost at rate of against service last in. If notation his engaged record unjust, is decided be it will be eliminated. When a no- against engineer’s tation is record, entered an will or fireman’s he be copy furnished will receipt for it. 21—Agreement.
“Article “(c) All enginemen subordinate officers provided shall copies with a copy engine these kept rules and shall also be in the house.’'’
There is no evidence this that contract was ever terminated. At adopted, plaintiff’s appeared the time that ivas name thereon as iít seniority Number 5 on the It appear that, list. would on November 8, 1930, plaintiff, grievance as committee, chairman of his en- agreement employees tered into a further with Union Terminal assignment for a division of the work and an of crews on the two properties according percentages, presented certain which was supervisor Yan manager accepted by Vliet of defendant and him for the defendant. tending
There evidence competency to show ability engineer and a fireman. Indeed, this seems have by been conceded tending the defendant. There is no evidence engineer show his services as such fireman were ever un- satisfactory any any charge manner had ever been made against appear that, him. after the consolidation of the operations properties adoption of the two working and the agreement enginemen defend- Union Terminal frequent enginemen ant, complaints were the defendant’s they getting effect that to the their fair the work share of agreements. and, under the Plaintiff was a member for the most time, grievance enginemen chairman of committee January time, until about 1931. After he, committee, seems that the other with members his were still enginemen relied the defendant’s to look appli- after the agreement working pro- cation of division a view to doing In tecting this, plaintiff iin the work. necessarily their share many inquiries frequent and had discussions with made different by plaintiff persons is contended interested. that he never in neglected any way, during hours; doing so, duties working he did; but it is contended that he would absent engine talk from his with other himself at times duty; frequently yards while had to be sent However, may be, go back to work. conflicts after to regard in the evidence fa- in such were determined plaintiff. vor of the first January, tends show for the
time service, plaintiff since he called had been in defendant’s was by Van Vliet dis- into his office and there him with threatened charge if “keep he did not his mouth "When asked what shut”'. charge against of- plaintiff what had plaintiff was manner any- fended, that, Van Vliet but if refused to state said he heard thing not, It more, plaintiff discharged. be whether true or would appears plaintiff’s from him he evidence that refused to tell what he notice, June Thereafter, had heard. further discharged. plaintiff that A few was Lawrenson he was advised days checks, upon time the same later, on return his him, being mentioned delivered to the service hereinbefore plaintiff. was written Lawrenson delivered to Plaintiff repeated attempts learn of his thereafter made the true cause discharge particular services been unsatisfac- and in-what had his yard- tory, Vliiet, also Van from Lawrenson but from alone Hastings, general supervisor defendant, from master charge actively officer the defendant’s ranking executive approached them seemed take interest None of business. informed him he Van Vliet that plaintiff’s behalf in matter. discharge was going get; all that he that the cause his had was Has- letter; that was it. as stated in that all there was Law- tings him not override inferior officers. he would his told up; higher him from he he was under orders that acting renson told ~ service;'that discharged unsatisfactory that was being particular charge to it. No cause; that all there was that against plaintiff, been made ever to have seems investigation charge general made was ever hearing or given given him than him No letter was ever that him. other Vliet, in evidence stated: that defendant’s by Lawrenson. Van same consolidation, were enginemen, working after enginemen Union had Union Terminal that contract agreement him and had been between and that Terminal they work enginemen that under that contract. should Belt that, that about same time from the evidence appear would serving discharged', two members on the the other plaintiff years prior for a number of to that with him gi’ievance committee discharged. testimony, that Vliet, Van stated also time were grievance committee a member of the plaintiff that the fact making investigations he was enginemen or that defendant’s but the manner in distasteful committeeman was not as a like. did not was what he he handled those duties tending feeling There was show ill evidence existed part prior of Van Vliet Lawrenson toward to his discharge and that him; Van Vliet told he hated Lawrenson testified if chance, had1the he have would “fired” plaintiff and that he fact long before resented the had, testimony, in some way, Vliet, tiff belittled him. Van in his Lawrenson, discharged plaintiff, stated that before he conversed with him about him if him and asked he should and that him, he told “Yes.” appear from that about subsequent January 1, 1931, consolidation, grievance a new committee, purporting joint to be engine- committee of all of the men of both the Union Terminal and the was caused selected, from committeemen, which committee and his Walker, Meade and were excluded and with which the dissatisfied, they defendant were which committee refused to rec- ognize. appears enginemen petitioned It also that such the plain- *8 tiff, Meade, and Walker continue representatives as their up agreement take such matters as that of adherence the for the simultaneously division of work. Almost with the work continued plaintiff, Meade, of committeemen, Walker as the discharged and were Meade Walker soon afterward. Van Vliet upon admitted given plaintiff the witness stand that he had never hearing, stating to the nothing effect there was in the con- plaintiff’s discharge, tract such. Soon after the requiring defend- employed consolidation, plaintiff ant new men. After the received pay from both the Union checks Terminal and the defendant assigned by performed by work each and him to the time his dis- missal.
The contract between the Union Terminal and Brotherhood the Enginemen, of Locomotive Firemen and in force time at the of the consolidation, agreed after consolidation the between defendant through supervisor Van Vliet as and its firemen and they work; they be contract under which should the there- thereunder. after worked evidence, requested plaintiff’s the
At defendant in- the close directing in nature demurrers structions the de- verdicts the petition, both of the which upon counts were the fendant court requested close the Again, evidence, at the whole in- refused. again by nature, which the the same court re- structions jury. fused; submitted to the cause was and the Opinion. assigns follows: appeal, error Upon aof nature in the the instruction refusing “First: The court in petition, plaintiff’s counts as to both
demurrer the evidence the again in case, offered plaintiff’s at the of the offered close all*the evidence the ‘A’, form of marked close of instruction at the case. na- in the instruction
“Second: The denying court erred in plaintiff’s ture count of of a as to first demurrer to the evidence in an petition, plaintiff’s offered and renewed' the close of case at case. all evidence in the ‘B’, instruction close of marked submitting punitive question of “Third: The court erred in petition. damages jury plaintiff’s count of first num- plaintiff’s giving “Fourth: erred in instruction defendant, and two, objections exceptions over bered instructing awarding puni- jury .in therein that the matter of jury. damages entirely in tive the uncontrolled discretion requested “Fifth: The on behalf instructions law, and the court are abstract declarations erred jury go permitting the -to without instruction case theory plaintiff’s case. dollars ten thousand awarding
“Sixth: The verdict of outrageously damages petition is so on the first count of prejudice passion on the conclusively indicate excessive as to miscarriage part justice corrected jury, and this required the trial dollars, the remittitur of six thousand a new the motion for court, court announced granted, ground that trial on the the verdict was excessive. judgment against rendering “Seventh: The court erred in punitive four thousand dollars first petition count of the after remittitur entered tiff, reduced judgment favor of the outrageously amount excessive. *9 admitting
“Eighth: evidence, in the ob- The court erred in over jections exceptions defendant, working agreement of the Railway Company. Union Terminal between the Brotherhood and refusing “Ninth: The in na- erred in the instruction ture of a demurrer to the evidence as to second of count petition, offered at the of case and renewed tiff’s close in instruction ‘C’ close of all the in the marked at the evidence case. undisputed plaintiff estopped to
“Tenth: Under the evidence by request hearing ac- complain of his his failure a in provisions working employ- cordance conditions Railway Company, Terminal by the Union and the court er- ment requested refusing in instruction ‘C’ in red by jury. to submit that defense to refusing refusing ‘E’’ ‘F’ “Eleventh: The court in instructions erred requested by the defendant.” by that, upon first count point made
1. The is first proving the service petition, plaintiff the burden that satisfy requirements of Section which not letter he obtained did 1929; a the char- requested he letter of Statutes Revised prescribed; superintendent statute that defendant’s acter manager intentionally request; refused such and that or showing. question is had failed to make such statute follows: doing in his any employe corporation
“Whenever business any discharged voluntarily quit such shall the service of cor- state be or manager of poration, duty superintendent be or it shall employe request employe (if such corporation, such said a corporation shall have in the of said been perio^ duly signed ninety days), employe letter, least such a at issue to by superintendent manager, setting forth nature such or corporation by such employe character service rendered to such truly cause, any, thereof, if stating and the duration for what service; employe quit and, superintendent if such such such any has employe, manager fail or to issue letter to such or shall refuse such manager a superintendent guilty or shall be of mis- such deemed punished any demeanor, by be a not exceed- and shall fine sum county jail by dollars, imprisonment in ing five hundred exceeding imprison- period year, a one fine and both such ’’ ment. question 2. It is defendant first that the statute in contended penal (Section 4588) penal in character. That it in character is is may be been so determined this court conceded. has Co., 220 Joseph Ry., v. Mo. Light, case of Soule St. Heat & Power App. 497, 274 W. S. 517. strictly also that it construed be conceded Ry. (Mo.),
(Lynch (2d) v. 61 S. W. Missouri-Kansas-Texas Co. 918) himself within bring and that is incumbent on City recover. Kansas Public Serv- its terms order [Cummins (2d) (Mo.), ice Co. 66 W. S. 920.] within bring himself Defendant contends further order terms, prima plaintiff to it is incumbent make least a facie request superintending showing a refusal a officer of duty it is to issue service letters such sec- defendant whose tion; asked ever letter; officer defendant for that he superintending Lawrenson, accepted written one mechanic master engine Terminal; Union superintendent operation *10 any request except made never thereafter different letter Vliet, Terminal, Van Union who yard to one the master the had supervision plaintiff; request no control the and over the merely so to Van assignment made Vliet the cause by different from that written Law- the letter renson. by (Section This section 4588) of the statute been construed has - & Light,
this court the case v. St. Joseph Ry., of Soule Heat Co., supra, Power in which it was held that such section makes specific requirement person request regarding of whom shall merely be made for a specifies letter but an officer or officers corporation duty Opinions whose it shall be to issue from the same. foreign point courts cited its brief are not, point, persuasive. on this There is to show sufficient evidence. re- made defendant, through for a letter the statute and that the qu§gt charge superintending
those in and its with its railroad activities supervisory management, request control knew and and and of such letter required caused the to be the purporting such sec- to written by tion Lawrenson and him to delivered tiff. October, Allegheny
In Corporation, controlled Swearingens, acquired Van the stock the Union of both Terminal appear corporations and of not the defendant. that the two does operations were ever such but the of the two roads consolidated as Allegheny Corporation were caused to be consolidated under management officials. apd supervision of Van Vliet the same formerly presidents had been of the vice had been formerly one and manager president of the Union Terminal was such vice manager companies. at the consolidation of the two time.of n Hastings formerly presidents of the vice Union had been one con- ranking executive officer the time of Terminal and Hastings Upon consolidation, as both the duties solidation. president Union Terminal ranking vice executive official of the president manager the duties Van Vliet as vice apply, spread Terminal over and made to Union operation Terminal operations of the Union but Van when April, railroad and continued until so general yard general supervision over master with made Vliet was Union Terminal and the defendant of both the operations 1930, Hastings con- yards. In was elected to respective over their president with the Union Terminal position as vice tinue general agent for the defendant over added duties take n consolidation, Lawrenson as master 'to served railroad. Prior time- of dis- railroad. At the for the defendant mechanic superintendent of both the mechanical charge, serving’ master mechanic the title Union Terminal the defendant all and firemen supervision over and direction
587 authority on both employ both to them. roads and to July, 1932, In plaintiff’s discharge, the time of no was officer of designated either the Union Terminal or the defendant as superintendent manager or bearing superintendent or title manager. or remaining executive officer with the defend corporation ant who had been connected with defendant cor poration prior Topping, president. to consolidation its At plaintiff’s discharge time or soon thereafter, he made the request for letter, a service resulted him given letter Lawrenson. There is evidence to the effect that Van Vliet advised the issuance of the letter Lawrenson and afterward advised plaintiff, appealed when to concerning the deficiencies therein, any changes to see Lawrenson about desired. There evidence that Hastings advised both Van Vliet and of his dissatisfaction with request the Lawrenson letter Van and made Vliet him proper instead; to issue letter that Van Vliet declined so; do gave plaintiff, when Lawrenson Law renson acting stated that higher up. he was under orders from Hastings, approached by when plaintiff, stated that he override his inferiors in proper the matter and failed that a to see given letter was him. It is obvious the Lawrenson letter fails to meet the statutory requirements. It plaintiff had is shown that been in the service of for a period twenty years over. It was duty plaintiff, by defendant’s to cause to be superintendent its manager com employee or other officer or petent therefor contemplation within statute, a letter set ting forth the nature and by plain character of the services rendered tiff to it and truly thereof, cause, any, duration stating the if why discharged. he was v. Prudenial Ins. Co. of America [Cheek 192 (Mo.), S. acting W. duty defendant, was the 387.] through superintendent proper its officer, give or other such let ter. v. Prudential America, supra.] [Cheek Ins. Co. of 5. The defendant was duty not relieved of reason of the mere fact that designated it had officer at the superin- time manager. required tendent or It was have a officer to comply requirements with the of the statute. The statute cannot side-stepped Defendant, such manner. fact, charge had in of its railroad and its employees activities officers and who discharging superintendent the duties of a manager. or a “That ’’ which we call a rose other name would smell as sweet. The clearly Hastings shows that general agent was the management operation its general and had the charge supervision thereof. likewise shows that Van Vliet general supervisory control over operations; its that both man- aged affairs; its business activities and and that such letter could through himself them, if Lawrenson
have either been issued through president. incompetent therefor, perhaps Topping, road; notice him Hastings general agent for the plaintiff’s request also for a letter was notice to notice defendant of notice to Van Vliet and Lawrenson *12 duty to have tiff’s a It was the of defendant demand for letter. the signed statute, the embodying specified caused letter the matters by statute, to person contemplation the proper some within the America, supra.] issued. Prudential have been Ins. Co. of [Cheek plaintiff fail- presumes damage from the The actual law required by letter as ure of defendant to issue a ac- ample justifying statute. There is evidence the submission damages petition. count on the first of the tual cause 7. There sufficient evidence also authorize submission pe- count of the cause as to the actual second tition. it, by any did contract
It is defendant that not have contended discharge plaintiff plaintiff and could with the or other the rec- any However, at contention not borne out time. such The that the contract in force between ord. evidence discloses and Union Terminal Locomotive Firemen and the Brotherhood agreed Enginemen time thereafter was at consolidation (who, time, sup- Vliet defendant at the was between Van for the activities) en- and and defendant’s ervisor of defendant’s road its ginemen plaintiff as under which the and firemen the contract that, engineers pursuance work and other and firemen should its contract, copy of provisions of such a the same was delivered engineers firemen, including to each the defendant working plaintiff.. that plaintiff The evidence further shows was discharge. time his Such contract contract such against just sufficient protected plaintiff without any charge against his record with- cause and from the notation Furthermore, against just protected and sufficient it him out cause. being discharge upon charge made him without notice thorough investigation days thereof within five after a made, permitted participate. it in which was to was he discharged plaintiff was without notice evidence that shows investigation opportunity him being given an without and, therefor that so, particulars but he was cause not denied discharged. necessary he It was not that should which was discharge. hearing, or after his Fur- asked for a either before have opportunity are such he ther, case had facts hearing discharge, before in as as he no no- ask for his much against prior any charge discharge. him his in- tice of It was notify charge upon cumbent both defendant investigation to make the before him. The defendant discharging contract clearly plaintiff. breached its with the 8. Moreover, plain- was it not contended competent engineer tiff and fireman or that he did not such; render but, upon hand, efficient as admit- services the other competent ted that he was render and that he did efficient service. The most that defendant’s evidence tends to show a dissatisfac- tion defendant with as member of the activities grievance engineers committee defendant’s and firemen. work,
contended that, prosecuting neglected engineer fireman; tiff his duties as or as oc- casions, necessary bring it was frequently for him to him to send work, back being delayed by absence; to his constantly engi- up he among stirred strife and dissatisfaction neers firemen. However, his wit- nesses contrary was to the tends show duties committeeman were prosecuted duty at times when was not on engineer or fireman for the defendant and that he did not en- *13 gage stirring up in among and engineers strife dissatisfaction firemen. All regard conflict in the evidence in such deter- was by plaintiff’s favor, mined in and it must therefore be held just by plaintiff’s discharge. cause is shown evidence for any by plaintiff There is no evidence of admission was that he ever of a violation guilty any neglect of defendant’s or rules any wrongful any or justify service conduct of his character to discharge. throughout plaintiff The denied guilty that he was' any plaintiff neglected such conduct. "Whether or had guilty any wrongful been of a violation of or defendant’s rules employment evidence, question in his was, conduct under the jury. [Piper Wayne Mfg. (Mo. App.), Co. 253 W. S. 437.] 9. question, The defendant contends further that the in contract into, as entered must be treated as in indeterminate character and by any either party liability terminable time without by other. been in has the case of v. St. held McCoy Joseph Railway (Mo. App.), (2d) 175, that, Belt 77 S. W. not- withstanding duration, such a contract be indeterminate as to according it is nevertheless enforceable to its so as it long terms parties. being between true, is force This it follows that the not, long plaintiff defendant could so continued to work under long thereunder, contract or to accept so as it continued his services discharge contrary provisions him in a manner to the set out there- McCoy in. It is further held Case that contracts of char- not, by acter involved herein are reason of their indeterminate held as a law character, to be unenforceable matter of but whether depend on such are enforceable must be made to the facts cir- each, particular case. contention cumstances Defendant’s there- contract, made, right if fore that it had under the plaintiff investigation well made. There notice not by is sufficient evidence that the was entered into to show contract through representa- (its supervisor) Van Vliet enginemen was of defendant’s and firemen and that the tives same binding accepted therefore by and firemen. It was long work be- enforceable as as it remained was force ing accepted done thereunder. respect further It is contended punitive damages, the first
submission the cause count any of- managing that there is no Lawrenson other charge in- plaintiff employed ficer in was property tentionally deliberately give serv- plaintiff failed or refused agree technically every ice letter respect. correct We cannot pregnant contention. with such record with evidence that only upon part a determination, up- there was Lawrenson’s but parts plaintiff on the of Van Hastings, give Vliet and the letter signed him delivered to no other. This letter is not Lawren- any length official capacity. give son It does not time that or the performed worked kind of work length given by him or the of time him to kinds of the different performed him. It does not the cause for which work state discharged merely general way in a but states that his services unsatisfactory give particulars respect fails in unsatisfactory. giving they were Lawrenson he was in which said up. higher from When letter orders went get, going that he all he was higher up, he was told those unsatisfactory, and that that his services were stated that the Hastings to it. told him he would not override all there questioned Lawrenson officers. When inferior *14 unsatisfactory services, of his particulars of the as to the .features letter his likewise that the stated that were said Lawrenson unsatisfactory services get. he going that to that was all was and a letter which conforms to the stat- plaintiff entitled This just give it, openly refused without cause ute. by the evidence. The conclusion can- far as disclosed excuse so evidence, wronging that it knew it escaped, under not be in letter the Lawrenson let- refusing in such that he which was entitled under the stat- that to getting not he ter ute. thought giving Lawrenson that he was that 11. contended is correct; Lawrenson, technically that reason inex- a letter knew; matters, in did the best ignorance that perience contrary. is faith; no to the and' that good in he acted ' such, agree cannot "VYe contention. is There evidence from , contrary. pri- it be to the found was not acting Lawrenson marily upon acting in or his own behalf his own initiative. He was upon orders through “higher-ups” from the defendant and was just any doubt advised what form event, the letter should In take. when complained by plaintiff particulars and asked for the charge against him, Lawrenson contented himself with the state- acting ment that he ivas under orders from those him re- above particularize. fused to agree Neither can we Van that Vliet and good Hastings ignorance any acted in faith in the matter and in duty discharged further toward' than that Lawren- highly son letter. suggestive The evidence the Lawrenson give plaintiff proper and the failure to letter in its stead preconcerted arrangement were the results of a understanding and upon part of defendant and those acting compel its behalf to plaintiff to take the none, regardless Lawrenson letter or rights regardless merely of the statute. Under evidence, it is begging question give contend that the refusal letter was of inexperience upon the result part upon defendant’s part acting one it in ample the matter. There is evi- contrary may reasonably dence from which the also be inferred and ignorance it not the upon result Lawrenson’s part upon part but was de- the result of a fixed and others purpose termined upon parts directing of Lawrenson and those If ignorance him. been inexperience had the result of part, readily Lawrenson’s Van could have been remedied by Hastings, Vliet 'and appealed by plaintiff, they when so de- sired. There sufficient evidence the inference be from which is to giving drawn that complained the letter failing refusing give and in him a proper letter, acted intentionally, just wrongfully, wantonly, maliciously, excuse, denoting cause and malice in law. Malice in law is the doing intentional wrongful just of a act without or excuse. cause v. St. (2d) Louis & Ry. (Mo. App.), [Hall San Francisco Co. 28 W. S. There was also evidence malice fact, ill
687.] hatred and justifies will. The evidence punitive therefore the submission of petition. first count of the petition correctly Defendant’s to each demurrers count properly refused ruled the trial court. gave complains The defendant no instruction telling facts, it, behalf what if plaintiff’s found finding sufficient to authorize a behalf the first petition facts, by it, of his or what if
count found would justify *15 damages wrongful intentionally assessment punitive of for.a act done alleged in matter of the refusal of the the the '592 instructions such that, submitting in the cause without. plaintiff’s it error. part,
on committed of behalf 2, given in Number complains It also of instruction jury, such instruction affirmatively the plaintiff, misdirecting as being follows: malice, of in there are two kinds jury instructed that law “The are By meant actual legal actual malice is malice. actual malice doing legal intentional of By ill is meant spite will. malice the just act or excuse. wrongful cause ‘‘ puni- awarding of jury matter further instructed are jury you damages entirely within the of tive discretion plaintiff’s peti- punitive damages first award on the count cannot damages you actual on count.” find and said tion unless award East in of Dorman v. Supreme held Court the case 854, that it is (2d) 75 W. Railway Company (Mo.), St. S. Louis any submit duty require plaintiff in case to to of the court facts, if warrant informing jury proven, what instruction just duty favor; the inherent as much verdict in it is jury be informed to the law to see to it that the the court supporting competent be adduced it case as in action; that a failure a cause of facts to constitute necessary prej error; and respect prima, where constitutes at least facie losing court’s failure so party reason results udice to should, upon appeal, be reversed and the cause judgment do, the to properly point has retrial, saved remanded for where press position it. and is 'plain exceptions giving to the properly its saved The defendant failed, however, 2, complained of. Number tiff’s instruction objection any exception save the trial to the action any make require de to submit more failing in submitting action the court or to the instructions tailed1 setting theory instructions forth more detailed cause without which, jury, if found facts and the would en plaintiff’s case complaint The first 'made of recover. the action of title respect such submission is found the motion .court preserve point This was sufficient as such a new trial. [Young Wheelock, (2d) 64 S. W. appeal. review Ry. Joseph Co., supra.] 950; McCoy v. St. Belt 2 given of instruction complains Number The defendant any therefrom of the omission directions to the tiff on account of authorizing jury to be found the facts assessment as to damages discretion information as to the punitive case theory and' of an alleged account law on to the to the therein misdirection effect that it was affirmative plaintiff punitive award authorized its discretion
593 actual against finding plaintiff of upon the defendant for mere wrong damages against him, regard or intentional without to malice of. How- upon complained act part doing defendant in in connection ever, plaintiff when Number is read 2 instruction for plaintiff (which instruction 3 latter with instruction Number for might be as- jtiry punitive damages advised the were such as wrongfully plaintiff complained sessed for the act of when instruction maliciously by done), jury been misled could not have thereby 2 exercise believing Number into it was authorized merely upon or refused finding discretion the defendant failed finding give proper upon of actual the mere against such fail- defendant on account of ure or refusal. was 3 that such by advised instruction Number wrongful act refusal, found, failure or if must have been a by maliciously one advised jury but must have been done. The wrongful maliciously 2 instruction that an Number act done was act intentionally done done through spite actual ill will or one just without are read or excuse. When two instructions cause alleged might together, they be, which must misdirection that 2 appear standing otherwise in instruction Number alone and omissions particulars complained disappear. therefrom v. City, 485, 642; [Markowitz Kansas 125 Mo. 28 S. Meadows v. W. 578; Pacific Mutual California, Life Ins. Co. of 129 Mo. S. W. 76, 31 Brown v. Printing 611, Co., Globe 213 112 Mo. W. S. 462.]
13. Moreover, appears requested defendant obtained I, J, L K, instructions jury the whole covering case, which the by fully proof informed as to the necessary burden of and the facts to be found it before the could recover and before a against verdict could be returned the defendant. The prejudiced therefore not by the require failure the court to full plaintiff’s instructions part. jury ascertained from given theory instructions the full case and the facts necessary proven, upon right to be predi- recovery theory full cated as well as the defense. The was told one all the instructions that of the instructions were the instructions of the court. The instructions equal standing all of therefore unprejudiced! jury, before the the fact that the one or the other requested been have the defendant. Error ground prejudice is no for reversal. v. St. [Dorman East Co., Ry. supra; Carter, 572, Brandon 119 24 Louis v. Mo. S. W. 1035; Hospes Branch, 390; 151 622, State ex rel. Mo. 52 S. W. Co., Rys. 173, 248 154 Shinn v. Mo. S. United W. 103.] true where erroneous instruction is for. therein, if vice one of plaintiff, misdirection, is not cured instruction giving conflicting therewith. 594 Highway (Mo. ex rel. State Commission v. Blobeck [State Inv. Co. (2d)
App.), 448; Evans, 63 S. W. 254 162 Patterson v. Mo. S. 179;W. ex Ellison, State & 270 Mo. rel. Central Coal Coke Co. v. 195 S. W. 722.] is, however, found,
There no real misdirection in vice of tiff’s instruction its ac- Number when read in connection with companying 3; instruction Number neither undertake to direct did it *17 when verdict; a no and! there is conflict between said instructions together so construed and no conflict between instructions when said by and construed the instructions asked and obtained the defendant together fully upon trial. All and of instructions when read said properly present generality incomplete- the law of case. Mere and instructions, ness in an instruction be cured other by supply the omissions therefrom without therewith. conflict by 15. There no error in was the refusal of court defendant’s requested E, F, G them. them instructions and or of None of properly upon based record of each fea- essential omitted proven facts, wholly ignored important tures and each facts by shown upon the record. Instruction G in part was based matters upon contradictory not shown record by the matters of facts by shown the record. by
16. No error was committed the trial in admitting agreement working evidence the between the Brotherhood of Loco- Enginemen Firemen motive and the Union Terminal. sufficiently agreement evidence shown as such was .adopted working agreement as the this case between defendant enginemen representatives by the authorized and its of defendant representatives and the authorized of its Brotherhood of Locomotive Enginemen accepted Firemen such well representatives defendant’s for it.(cid:127) .as 17. There is no merit in defendant’s contention estopped complain of his was by defendant reason hearing. request a It was not upon plain- his failure incumbent request hearing; tiff, evidence,' to under the but it was incumbent give him upon one before Besides, him. if discharging duty done, so to have been oppor- discharged by tunity to do so. He without notice any knowledge charge against was a him that might investigated. now to the consideration of complaints come defendant’s We jury’s verdict
respecting amount the overruling upon a for a trial remittitur motion new entered thereon defendant’s contends, first, Defendant verdict. there is no reducing might punitive find damages, upon jury upon which in the absence misdirections instructions contained
595 plaintiff. Number thus advanced instruction contentions they already herein, where have been involved the discussion made again adversely They have been to defendant. are ruled disposed upon .against was sufficient evidence which the defendant. There might punitive damages, was no misdirection jury find and there jury prejudice Defendant which resulted in defendant. punitive second, in the award contends, that the verdict damages pro- and so excessive under the evidence out grossly damages disregard portion to actual as to indicate a of the evi- theory jury; can on the dence that it be accounted jury; passion prejudice by and that the court abused failing per- its set as a whole-and discretion in aside said verdict requires a mitting remittitur; that the amount of the verdict alone agree judgment reversal of entered below. We cannot with such 170, it Sperry contention. In 267 Mo. Hurd, 628, 185 S. W. regard damages, punitive said in “. . . hard-and-fast
rule measuring for the of such cannot Each case be declared. peculiar less own turns more or facts. The character and .standing parties, the malice with which done, the act was financial condition of the defendant are elements which should *18 be in awarding damages taken this into consideration character Knapp, 152; 45 8 606-608, 151, v. Mo. R. C. L. secs. [Buckley 152, cited; Damages (3 p. 2 cases therein Sutherland on Ed.), 1092], punishment by way and the amount as may be such would example the serve occurrence of to deter in future.” like acts the jury range The has respect thus considerable the in to the amount of any particular case, in -verdict according the facts in the record thereof. The record in this case legal discloses both and actual large malice. a corporation The defendant is railroad employing many men. terms, does record not disclose its financial worth in but inescapable the conclusion punitive is that an award of ordinary n damagesonly jury would effect upon have but little determent it. The (cid:127)doubtless took note of all in arriving of these matters at the amount verdict; as well committed, its as of the act thereof, the nature all surrounding commission, the circumstances and all other matters shown the record. There it is the from nothing record which n appears any it was acting improper that under influences or im- pelled by any improper assessing motive the puni- amount the damages $10,000. tive The verdict was doubtless result of the judgment jurors upon honest of the the facts in record. That true, it may suggest was excessive not much be but so judicial that disregard mind was actuated jury evi- by any or prejudice dence bias and or improper motives or that acting improper it was influence. is true that a verdict may large be all so reason so contrary out to the evidence as to part jury amount to misbehavior on the of and should
596 Ry., Joseph St. Loon v. stand. permitted therefore not be [Van v. 63;W. Burdict App. 372, Mo. 160 S. Light, Co., Power 174 Heat & 453; 221, Par Co., S. W. 123 Mo. Missouri Pacific Railroad Co., 217 117 S. W. Mo. v. Missouri Pacific tello Railroad as be judicial mind strike the may it so as to Or be excessive 1138.] part on misconduct ing prejudice result of bias or [Chitty be cure. only trial ease, new jury; and, such Co., 868; 49 S. Burdict & 148 Mo. W. I. M. S. R. v. Louis St. find however, Co., fail,We supra.] Missouri Pacific Railroad a situation in this case. ordinarily punitive a verdict for true that dam- While it be ac- altogether disproportionate amount of ages to the should be dam- case, the verdict for actual returned; yet, tual this ages under the instructions of one dollar was returned competent inability court, to introduce for the reason damages; damages as- greater and therefore the actual evidence of guide punitive proper for the amount of the dam- sessed furnish ample is ages Especially to be returned. so damages, punitive a liberal and the justifying in the award record not be limited and inferences therefrom should restricted damages. that the trial arbitrary of actual is true assessment by $6000, upon court reduced the amount of the verdict doubtless however, theory imputed, to the that it excessive. It is not to be it appeared it trial court the remittitur was allowed because verdict as was so excessive as to indicate bias returned im- prejudice part or that it jury was the result upon improper proper part motives or of influence presumed appeared, it. If had so it is not to be over remittitur; presumed permitted would have but it is to granted a new court would have set the verdict aside and record, trial. Prom a review of the evidence we are convinced judgment fully supported thereby. below that the of the court nothing We find from exercise of discretion *19 judge part thereof, per- trial court the matters mitting remittiUor, trial, enter- overruling motion new judgment ing final verdict for the amount thereof less the remittitur, impeached. amount of is to be Whatever be the jurisdictions, rule other rule remittiturs this state involving punitive damages, are allowable in cases as well inas those damages. Hurd, involving [Sperry supra.] actual assigned disposed sufficiently points We all errors have judgment by defendant. The the trial court made should Cmipbell, accordingly C., affirmed. It is so ordered. concurs. foregoing C., adopt- PER opinion CURIAM:—The Reynolds, opinion judgment ed as the of the court. The is affirmed. All concur.