Henry v. Impact Management, Inc.

808 S.W.2d 396, 1991 Mo. App. LEXIS 585, 1991 WL 61779
CourtMissouri Court of Appeals
DecidedApril 25, 1991
DocketNo. 17125
StatusPublished
Cited by2 cases

This text of 808 S.W.2d 396 (Henry v. Impact Management, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henry v. Impact Management, Inc., 808 S.W.2d 396, 1991 Mo. App. LEXIS 585, 1991 WL 61779 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

Plaintiff Michael R. Henry, Director of the Division of Child Support Enforcement of the Department of Social Services of the State of Missouri, sued defendant Impact Management, Inc., for allegedly violating [397]*397§ 454.505.10.1 Plaintiffs petition averred defendant discharged an employee, Gary W. Levingston, because plaintiff issued an order directing defendant to withhold $324.98 from Levingston’s monthly wages and remit said sum to a court in which an order had been entered requiring Leving-ston to pay child support.

Defendant’s answer admitted defendant discharged Levingston, but averred it was for reasons other than the wage order.

The case was tried to the court, which found, inter alia:

“All evidence, including that presented by plaintiff indicate to the Court that Levingston was discharged for lack of production and for conducting his personal business at company time and expense. The Court has heard no evidence and has found no facts indicating that Levingston was discharged as a result of the pay out order.”

The court entered judgment for defendant.

Plaintiff appeals, maintaining the trial court erred in (a) receiving inadmissible evidence, (b) finding defendant had overcome the statutory presumption that Lev-ingston was discharged as a result of the wage order, and (c) allowing defendant’s lawyer to “continuously demean and harass” Levingston during his testimony and “introduce hearsay as questions.”

Plaintiff issued the wage order November 4, 1986. Defendant received it November 5, 1986. Defendant discharged Leving-ston November 17, 1986.

Plaintiff presented Levingston as a witness in the trial court. Levingston testified defendant hired him May 22,1986, as a “customer service representative and eol-lector.” His duties were primarily making telephone calls and collecting money due defendant. He also answered letters to defendant from lawyers and appeared in court as a witness for defendant in collection suits. His immediate supervisor was Joe Van Gilder.

Levingston’s starting salary was $550 every two weeks. It was raised to $575 “after a ninety-day probation period.” Levingston avowed he was told numerous times by his supervisor he was “doing a good job.” Levingston denied ever receiving a reprimand.

Levingston testified he was discharged November 17, 1986, in the office of Joe Villines, Jr., defendant’s “in-house counsel.” Present, in addition to Levingston and Villines, were Van Gilder and Patricia Martin, defendant’s “company secretary.”

Recalling the meeting, Levingston quoted Van Gilder as saying the termination was because Levingston’s performance was not what Van Gilder expected it to be. Asked by plaintiff’s lawyer whether the meeting was recorded, Levingston responded, “Not to my knowledge, no.”

On cross-examination, Levingston conceded Van Gilder “mentioned something about personal [phone] calls” during the meeting. When the meeting ended, Lev-ingston was given a list of calls “that was taken out of my check.”

At trial, defendant’s lawyer handed Lev-ingston Exhibit A and asked whether it was a list of phone calls he made. Leving-ston answered, “Apparently, yes.” The exhibit covered the period from July 14 to November 10. It showed 30 calls to the [398]*398home phone of Kathy Bowen, Levingston’s ex-wife. The exhibit also showed 83 calls to the phone of Ms. Bowen’s employer. Levingston admitted he made the calls on “company time” and had no permission from defendant to make them. The trial court received Exhibit A in evidence over plaintiff’s “hearsay” and “no foundation” objections.

Levingston remembered inquiring whether he was “getting fired because of the garnishment.” Asked whether Van Gilder explained the “garnishment” had nothing to do with it and that the firing was because of Levingston’s “job performance,” Levingston answered, “Possibly, yes.” Levingston conceded Van Gilder said one employee was making 500 business calls a month, while Levingston was making only 125.

During his cross-examination of Leving-ston about the termination meeting of November 17, 1986, defendant’s lawyer utilized a typewritten document (Exhibit C) purporting to be a transcript of that meeting. Defendant’s lawyer read Levingston statements attributed by the exhibit to Van Gilder, to Villines, and to Levingston, respectively, and asked Levingston whether the statements were in fact made. Leving-ston admitted many of the statements were made, said he did not recall certain others, and conceded still others were possibly made. At the end of that phase of the cross-examination we find this:

“Q The chronology of the questions and answers is just like I read it to you, wasn’t it?
A Basically, yes.
Q All right. Anything — anything in there from the time you came in, — from the time you came in, was there anything that I didn’t include in the way of conversation?
A No.”

Defendant’s lawyer offered Exhibit C in evidence “for whatever value it is, just for a helpful tool for the Court.” Plaintiff objected, whereupon defendant withdrew the offer. At the end of the trial, defendant reoffered Exhibit C. This dialogue ensued:

“[Plaintiff’s lawyer]: ... some of it is in evidence against my objection, and I certainly object to this. It’s hearsay. The person that prepared that document wasn’t in court today to testify, and additionally, there was no foundation laid to admit that into evidence, and I objected to the way he did work some of it in.
The Court: I’m going to admit it solely so I’ll have it available to myself when I make the proposed findings of facts, for that reason only. ... It will be admitted.”

Plaintiff’s first point relied on avers the trial court erred in receiving Exhibit A (the phone call list) and Exhibit C (the purported transcript) in that both documents were hearsay and no proper foundation was laid for either of them.

As noted earlier, Levingston acknowledged Exhibit A was “[ajpparently” a list of phone calls he made at his place of work. He admitted phone numbers on the exhibit were, respectively, those of his ex-wife’s home and place of employment. He also admitted he had no permission from his superiors to make personal calls on “company time.” When defendant discharged Levingston the cost of the personal calls was deducted from his final paycheck.

Plaintiff’s contention, as we grasp it, is the trial court should have rejected Exhibit A because the person who prepared it was not present “to testify that the exhibit was authentic.”

The contention is meritless. The only data even arguably supplied by Exhibit A that was not also furnished by Leving-ston’s testimony was the precise number of personal calls and the dates they were made.

In Gardner v. Robinson, 759 S.W.2d 867 (Mo.App.1988), a witness’ testimony was substantially the same as the matters shown on a document received in evidence. Denying a contention that admission of the document was reversible error, this Court held the document was cumulative and added nothing to earlier evidence. Id. at 868[2]. In so deciding, this Court pointed [399]

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Cite This Page — Counsel Stack

Bluebook (online)
808 S.W.2d 396, 1991 Mo. App. LEXIS 585, 1991 WL 61779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-impact-management-inc-moctapp-1991.