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July 12, 1983


From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Daniel T. Tillman.

Motion for Rehearing Overruled, Transfer Denied August 29, 1983. Application Denied October 18, 1983.

Before Pudlowski, P.j., Smith, Kelly, JJ.

The opinion of the court was delivered by: Pudlowski

Camillus Musselman (respondent) brought this action against Anheuser Busch, Inc. (appellant) under § 290.140, RSMo 1969, alleging that the service letter furnished him did not state the true cause for his discharge. A jury awarded respondent $1.00 in nominal damages and $250,000 in punitive damages. Appellant maintains that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. Appellant maintains (1) that there was no substantial evidence that the service letter falsely stated the reason for discharge, and (2) that there was no substantial evidence of actual malice on which an award of punitive damages could be based. We affirm the award of nominal damages and reverse and vacate the order awarding punitive damages.

The facts are as follows:

Respondent began his employment at Anheuser-Busch on May 1, 1968, as a Technical Sales Service Representative in the Industrial Products Division of the Company. In this capacity, he traveled throughout the United States demonstrating respondent's products and offering in-plant technical assistance to customers.

Respondent's immediate supervisor was Larry Liebman, who, in turn, reported to Herman Saussele, manager of the technical service group. It was Liebman's responsibility to arrange respondent's schedule of customer calls. Liebman testified at trial that during 1974, problems developed because respondent sometimes failed to follow directions, failed to maintain a known schedule, failed to submit timely routine call reports concerning his activities and often interjected himself into sales activities. When there was no change in respondent's conduct, his immediate supervision was placed under Saussele's direct control.

Respondent acknowledged his disagreements with Liebman concerning sales activities, but considered the matter resolved. Furthermore, respondent claimed that neither Saussele nor Liebman ever informed him of any need for improvement. At trial, respondent introduced wirtten evaluations which were instituted by the company. In the June, 1974, review, plaintiff received a "good" or "satisfactory" rating in eight of the twelve categories. In the other four, cooperation and relationship were listed as "needs improvement," attitude and flexibility were listed as "needs improvement," communication was also listed as "needs improvement," and personality was marked "excellent." The comments on the form reflected that respondent "at times does not communicate well, does not follow directions at all times [and that he] has to learn to take directions better."

In the 1975 report, respondent received "good" or "satisfactory" in all areas except communication and personality. The former was still marked "unsatisfactory" and the latter was still "excellent."

The incident which precipitated respondent's discharge occurred at a national convention for Anheuser-Busch employees, held in Clearwater, Florida, on February 9-12, 1975. Persons attending the convention included respondent, Liebman, Saussele, William Harrington, then vice president of the Industrial Products Division, Dana Downing, manager of the development group in the division, and August Busch III, President of Anheuser-Busch.

As part of the convention, a dinner party was hosted by Mr. Busch. Respondent, when introduced to Mr. Busch and his financee addressed Mr. Busch as "buddy" and called Busch's financee by her first name. Later that evening, respondent dropped two beer glasses in front of Mr. Busch and other company personnel.

The following day, respondent was requested to give a presentation concerning work he had been performing. August Busch III was in attendance. While fielding inquiries from the audience, respondent asked Busch a question. Busch did not respond.

Upon returning to St. Louis, Harrington directed Downing to inquire into respondent's employment history. Downing went to Saussele who reported respondent's failure to follow directions. Downing reported back to Harrington who gave the decision to terminate respondent.

Respondent was informed of his discharge by Saussele and Downing. Before leaving, respondent orally requested a letter "to use to find another job." Respondent followed up this request by sending a written request for a service letter detailing dates of employment and the cause of discharge. Saussele testified that he never received respondent's letter, and was unaware that a service letter statute ...

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