Opinion
April 3, 1944.
1. — Appeal and Error — Rules. An appeal cannot be dismissed because appellant's statement is brief, and since it fairly conforms to rule 18 of Court of Appeals motion to dismiss should be overruled.
2. — Master and Servant — Statutes — Construction. Section 5064, R.S. Mo. 1939, requiring corporate employers, when requested by discharged employee, to give such employee who had been in service of employer for a period of ninety days a service letter, must be strictly construed as to those portions which are against employers but liberally construed as to those which are in their favor.
3. — Master and Servant — Statutes — Construction. Under statute providing that corporate employers shall upon request furnish discharged employees service letters, if such employees shall have been in service of corporation for a period of at least ninety days, the Legislature had reference to a continuous employment of at least ninety days (Section 5064, R.S. Mo. 1939).
4. — Master and Servant — Statutes — Construction — Words and Phrases. Where plaintiff employed as a truck driver in interstate commerce from 1936 until April or May, 1940, when he was discharged for having violated an Interstate Commerce Commission rule, and after about three weeks was "re-employed" or "reinstated" and was again discharged on June 26, 1940, he was not entitled to service letter upon his second discharge because his employment within meaning of statute was not continuous for a period of at least ninety days.
The term "discharge" means to cease to employ while the term "reinstated" has a particular meaning when used in connection with insurance contracts, but as used by plaintiff was only a conclusion on his part, and in any event when used in connection with employment "reinstate" means to receive back into employment only, or to put back into the same position or state from which removed.
5. — Appeal and Error. In action for damages because of failure of defendant to give plaintiff a service letter on theory he was discharged as pleaded and proved on June 26, 1940, when he was discharged following reinstatement after first discharge, plaintiff could not rely on prior discharge as basis of recovery because his case having been submitted on certain theory, on appeal must be determined on that theory.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
REVERSED.
M.D. Campbell, Jr. for appellant.
(1) The court erred in refusing appellant's requested Instruction No. 1 in the nature of a demurrer to the evidence offered at the close of all the evidence. Sec. 5064, R.S. Mo. 1939, is a penal statute and will be strictly construed. Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933. Respondent was not entitled to a service letter because at the time of dismissal June 26, 1940, he had not been in the service of appellant "for a period of at least ninety days" within the meaning of that phrase as said in Section 5064. The construction of the statute here contended for, seems to have been the construction in the mind of the writer of the opinion, in the case of Chrisman and Terminal R. Assn. of St. Louis, 157 S.W.2d 230, 231, when he used the expression "for more than ninety days next prior." (2) The verdict for actual damages in the amount of $450 is excessive. There was evidence that appellant after his discharge on June 26, sought employment of various persons but there is no evidence any of said persons desired to engage him or were in need of his service nor that they declined to employ him because he did not have a service letter. To say respondent's failure to obtain employment was the direct result of the absence of a service letter is to guess and speculate, and this a Court will not allow a jury to do. Doll v. Purple Shoppe, 90 S.W.2d 181, 186, and cases therein cited. Respondent having failed to prove the damage alleged, could not have actual damages in excess of the nominal amount of one dollar.
Raymond E. Martin, Frank Reinhardt and W. Raleigh Gough for respondent.
(1) (a) The statute does not require a "continuous" employment of at least ninety days. The statute (Sec. 5064, R.S. 1939) gives the right to a service letter to an employee "if such employee shall have been in the service of said corporation for a period of at least ninety days." The statute does not say that the employee must have been "continuously" employed or that he must have been in service for ninety "consecutive" days. The purpose for the enactment of this law was stated in Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 387. The court there held that the statute was "remedial" in purpose and "conformatory of the common law." In In re Becker et al., 80 N.Y.S. 1115, 39 Misc. 756, a testator had provided bequests for employees in his service at the time of his death, these bequests varying in amount in proportion to the length of service. One employee had been employed, altogether, about four years, composed of three periods of less than two years each. This employee claimed a legacy of $500. The executors contended that his legacy should be only $100. Said the court: "There is no authority which I can find directly applicable to the circumstances of the present case. The general definition of the word `period' in reference to time is to refer to a continuous period, and the question is, therefore, whether the testator, in using the expression `period,' intended to give it any such definition, or whether he simply meant to refer to term of employment. While there is little from which the intent of the testator can be drawn on this subject, yet it is evident that the desire of the testator was to recognize the persons who were in his employ at the time of his death, and to make the recognition depend upon the length of their services. That being the case, it seems to me that it is immaterial whether it was continuous or not, as, if the testator had had in mind an intention to restrict its provisions to persons who had been in his employ continuously, no doubt he would have indicated it by the use of the word `continuous.'" It should be noticed that the statute is two-fold in character. It provides for a criminal penalty; and it impliedly provides for a civil remedy, and in that sense is "remedial," as held in the Cheek case. Defendant cites Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933. In that case Judge REYNOLDS said that its penal character would be conceded, and that the statute is to be "strictly construed," citing Lynch v. M.K.T.R. Co., 333 Mo. 89, 61 S.W.2d 918. The court in the last case held that the statute requiring signals at railroad crossings was two-fold in character, penal and remedial; that the penal portions of the statute should be construed strictly, but, "so far as it is to be considered as compensation for an injury done, it is to be construed as any other statute" (61 S.W.2d 925 (12). Judge REYNOLDS held in the case of Walker v. St. Joseph Belt Ry. Co., 102 S.W.2d 718, 724 (5) that, although the statute — in its penal character — should be strictly construed, yet that it should also be given "a reasonable application in view of its objects and purposes and the evils to be remedied by it." In declaring the sense of a statute, the court should effectuate its obvious intent in favor of remedial justice, rather than infringe its spirit by a narrow and technical construction. Rodgers v. National Council, etc., 172 Mo. App. 719, 155 S.W. 874. The object sought to be attained by the enactment of a statute should be considered in its interpretation. Ross v. K.C., St. J., etc., R. Co., 111 Mo. 18, 19 S.W. 541; State ex inf. Collins v. St. L. S.F.R. Co., 238 Mo. 605, 142 S.W. 279; Lusk v. Public Service Comm., 277 Mo. 264, 210 S.W. 72. (b) Since plaintiff had been continuously employed for at least ninety days prior to the "discharge" in April or May, 1940, he had a right to a service letter, irrespective of his employment subsequent to that time. Words cannot be interpolated into a statute, where their unintentional omission is not plainly indicated. Betz v. Columbia Telephone Co., 224 Mo. App. 1004, 24 S.W.2d 224; State ex rel. Cobb v. Thompson, 319 Mo. 492, 5 S.W.2d 57. (c) Plaintiff was entitled to a verdict upon the theory that the first "discharge" did not terminate his employment under defendant. The word "reinstate" means "to place again in position or in a former state." The use of the term ordinarily implies a reinstatement to a whole or unity. 53 C.J. 1182; Webster's New International Dictionary. As used in insurance law, the term does not mean to insure under a new contract, but a continuation of the original policy. Missouri State L. Ins. Co. v. Jensen, 139 Okla. 130, 281 P. 561, 562; Mutual L. Ins. Co. v. Lovejoy, 203 Ala. 452, 83 So. 591, 594. The word "restore," as used in this connection, has a similar meaning. 54 C.J. 732. (2) The verdict for actual damages was not excessive. The only difference between the facts of this case, on the instant question, and the facts involved in Stephens v. Lever Bros. (Mo. App.), 155 S.W.2d 540, and in Chrisman v. Terminal R. Assn. of St. Louis (Mo. App.), 157 S.W.2d 230, is that, in those cases, the plaintiffs were allowed to testify that prospective employers had asked them for their service letters and they had to reply that they had none (in this case plaintiff was not allowed to testify to such a request), whereas, in the case at bar, plaintiff did testify that he showed prospective employers the unsatisfactory "service letter" that he had obtained from defendant.
Jack Barrows, plaintiff, sued Riss Company, Inc., a corporation, defendant, for damages because of the failure of defendant to give plaintiff, an employee, a service letter, at his request, on his discharge. Judgment was for plaintiff in the sum of $450 actual and $650 punitive damages. Defendant appeals.
Plaintiff, in effect, pleaded that he was for more than ninety days in the employ of defendant on and prior to his discharge June 26, 1940; that on that date he requested a service letter; and that defendant refused to give him such a service letter as is provided for in Section 5064, Revised Statutes Missouri, 1939.
Defendant answered by alleging that plaintiff was discharged for cause May 2, 1940, and that he was, thereafter, restored to employment and, June 26, 1940, was again discharged for cause. Defendant also alleged that a service letter was given to plaintiff upon his discharge and that plaintiff made no demand for another or different letter than that which was given to him.
Plaintiff was his own sole witness. His testimony was to the effect that he was employed by defendant as a truck driver in interstate commerce from 1936 until April or May, 1940, when he was discharged for having violated an Interstate Commerce Commission rule prohibiting carrying passengers on the truck; that he was "off" about three weeks; that he was then "reemployed", "reinstated"; and that he was again discharged June 26, 1940. He testified to the effect that, on the last-mentioned date, after his discharge, he demanded that plaintiff give him a service letter, and that no service letter was ever given to him.
Defendant alleged as error the refusal of the trial court to give defendant's offered demurrer to the evidence, and that the verdict for actual damages is excessive.
Plaintiff moves to dismiss the appeal and urges as grounds therefor that defendant's statement is not in compliance with our rule 18. It is claimed that, in view of defendant's contention that its demurrer should have been sustained, "appellant states only a small part of the facts bearing on that issue, misstates such facts in a light favorable to appellant and prejudicial to respondent, and omits entirely to state many facts having vital relevance to the question in issue."
We have carefully read said statement, have read and considered plaintiff's suggestions in support of its motion to dismiss, and have read the abstract of the record in its entirety.
While the statement is brief, an appeal may not be dismissed for that reason alone. Under our rules the statement should be "concise." It recites all facts of record necessary for a clear understanding of the case and of the issues presented, and does not misstate any of them or state them from a standpoint more favorable to defendant than to plaintiff. The statement fairly conforms to our rules and the motion to dismiss should be overruled.
The decision in this case depends upon the construction to be placed on Section 5064, Revised Statutes Missouri, 1939. This section requires employer corporations, when requested so to do by a discharged employee, to give such employee a service letter "if such employee shall have been in the service of said corporation for a period of at least ninety days." Defendant contends that plaintiff's own testimony establishes, as a fact, that he had not been, within the meaning of the statute, in defendant's employ for "a period of at least ninety days" when he was discharged.
Plaintiff testified to the effect that he was discharged in April or May, 1940, and was off from work twenty-one days. He testified that he was "reinstated", and that he was "reemployed" May 11th or 12th, 1940. His discharge as of June 26th occurred less than ninety days after his employment May 11th or 12th; but plaintiff contends that the statute permits him to recover on his proof that he was employed from 1936 until sometime in April, 1940, when he was discharged, and again employed from May 11th or 12th until June 26th. He contends that "a period of at least ninety days" means a total of ninety days of employment whether or not the employment was continuous.
Neither party has cited a decision in point. The statute provides that one "who shall fail to issue such letter to such employee when so requested by such employee . . . shall be deemed guilty of a misdemeanor" and shall be subject to a fine and imprisonment. It is a penal statute. It must, therefore, be "construed strictly as to those portions which are against defendants, but liberally construed in those which are in their favor — that is, for their ease and exemption . . . and, when doubts arise concerning their interpretation, such doubts are to weigh only in favor of the accused." [State v. Taylor, 133 S.W.2d 331, l.c. 341; Chrisman v. Terminal R. Ass'n., of St. Louis, 157 S.W.2d 230, l.c. 234.]
"The general definition of `period', with reference to time, is to refer to a continuous period, . . ." [In re Becker et al., 80 N.Y.S. 1115, l.c. 1116; 48 C.J. 812.] "A period of time is a stated and recurring interval of time, a round or series of years, by which time is measured." [The People ex rel. v. Leask, 67 N.Y. 521, l.c. 528; Bouviers Law Dictionary, 2565.] In view of the nature of the statute we are not at liberty to attribute to the phrase "period of ninety days" a special meaning, but must strictly construe it in the light of the plain and generally accepted meaning of the words used. [Chrisman v. Terminal R. Ass'n., of St. Louis, supra.] We therefore hold that the Legislature had reference to a continuous employment of at least ninety days. To hold otherwise would be to render any corporate defendant liable to respond in damages, and its superintendent or manager to be fined or imprisoned, for failure, on request, to give a service letter to any and all discharged casual employees who had worked for it a total of ninety days over a number of years. The Legislature did not intend this result else it would not have used the language it did use.
However, plaintiff contends that after he was discharged he was "reinstated," not reemployed, and that his employment was, therefore, continuous. Plaintiff admitted in his cross-examination that he was discharged in April or May. The term "discharge" means to cause to employ. [14 C.J.S. 58, note 35; 26 C.J.S., 1330.] Having been discharged he thereafter again became employed. Plaintiff stated on cross-examination both that he was reemployed and that he was reinstated. While the term "reinstated" has a particular meaning when used in connection with insurance contracts the term, as used by plaintiff, was but a conclusion on his part; and evidence offered by defendant touching the circumstances of his resumption of employment was excluded on objection by plaintiff. In any event, when used in connection with employment, "reinstate" has been held to mean ". . . to receive back into employment only, or to put back into the same position or state from which removed." [Markey v. Schunk, 152 Iowa 508, l.c. 512, 13 N.W. 883; 53 C.J. 1182.] The record here does not justify our holding that the employment was continuous.
Plaintiff contends that he is entitled to an affirmance of the judgment on the theory that he was entitled to a service letter when he was discharged in April, 1940. He pleaded and proved a discharge as of June 26, 1940. He offered no proof that he demanded a service letter at the time of or based upon his discharge in April. The statute requires that the service letter state the true reason for his discharge. The true reason for his discharge in April was quite different from the true reason given by him, and by the defendant, for his discharge June 26, 1940. His evidence regarding actual damages, suffered by reason of his inability to secure employment on account of not having a service letter, would not have been admissible, on objection, if he had pleaded failure to give him a service letter on discharge in April; and said evidence does not support any claim for actual damages suffered from the failure of defendant to give him such a letter based on the April discharge. Having pleaded, tried, and submitted his case on a certain theory his appeal must be determined on that theory.
The motion to dismiss the appeal should be overruled and the judgment reversed. Boyer, C., not sitting.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The motion to dismiss the appeal is overruled and the judgment reversed. Bland and Cave, JJ., concur.