Opinion
No. 34499.
April 14, 1941.
1. MASTER AND SERVANT.
A servant was not required to exhaust administrative remedies before officers of corporate master, as provided by employment contract, as a prerequisite to action for unjustified discharge.
2. MASTER AND SERVANT.
In servant's action for unjustified discharge, requested instruction requiring judgment for master if jury found that servant had, during period for which he sought damages for time lost, been confined in jail charged with crime, was properly refused where only three days' time was involved.
3. MASTER AND SERVANT.
In servant's action for unjustified discharge, sustaining demurrer to plea specifically setting up justification was erroneous.
4. APPEAL AND ERROR.
In determining whether error in sustaining demurrer to plea of justification required reversal, reviewing court was required to assume that defendant conducted defense in deference to ruling on demurrer and in response to theory on which action was based and trial conducted.
5. APPEAL AND ERROR.
In servant's action for unjustified discharge, error in sustaining demurrer to plea specifically setting up justification required reversal of judgment allowing recovery, notwithstanding that there was some testimony introduced which, if established, would have been relevant to justification.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
Eaton Eaton, of Gulfport, for appellant.
The declaration, as amended, alleged that the plaintiff, having been employed for several years by defendant as a bus driver, was wrongfully discharged by defendant; that at the time of his discharge he was a member in good standing of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Division No. 1127 of the City of Shreveport, Louisiana (hereinafter called the Union); that a written collective bargaining agreement was in force between the defendant and the Union; that on or about September 4, 1940, he was "summarily discharged by the said defendant without sufficient cause and without any explanation being given to him as to his discharge, and, although the plaintiff made a written demand within six (6) days after his discharge for a fair and impartial investigation, the said defendant refused and failed to hold such fair and impartial investigation, in open, direct and violent disregard and violation of Article 18 and particularly Sections 1 and 2 of said Article 18"; there followed an allegation of damages.
The defendant filed a plea of the general issue and six special pleas to the declaration. The defenses set up by these special pleas were as follows:
1. That plaintiff resigned his position as a bus operator.
2. That plaintiff had previously executed a full and complete release in favor of defendant.
3. That plaintiff failed to make written demand for a hearing, as provided for in the collective bargaining agreement.
4. That sufficient cause existed for plaintiff's dismissal. To this plea a demurrer interposed by plaintiff was sustained, which action of the court is assigned as error. An amended special plea No. 4 set up as a defense that it was found, following a hearing where plaintiff was present and represented by the Union, that sufficient cause existed for his discharge, and that upon the findings thus disclosed, the Union committee declined to proceed further.
5. That plaintiff ought not to recover, because, due to his incarceration in jail charged with a crime, he was unable to fulfill his contract of employment.
6. A plea in mitigation of damages.
Plaintiff failed to serve on the defendant written demand for hearing and investigation within the time provided in the collective bargaining agreement, and such failure constituted a waiver of plaintiff's right to relief under the collective bargaining agreement.
Haldane v. U.S., 69 Fed. 819; 14A C.J. 484-5, sec. 2351b; 14A C.J. 487; 2 C.J. 863-4; 2 C.J. 865-6; 19 C.J.S., sec. 1079, p. 615; Goodloe v. Godley, 13 S. M. 233; Deposit Guaranty Bank Trust Co. v. Silver, etc., Stores, 166 Miss. 882, 148 So. 367; I.C.R.R. Co. v. Bryant, 70 Miss. 665; 46 C.J. 59; In re Leterman, 260 Fed. 543; 62 C.J. 983.
Plaintiff is precluded from maintaining an action against defendant for wrongful discharge in alleged violation of the collective bargaining agreement because he resigned from his position as a bus driver.
Wharton v. Christie, 53 N.J.L. 607, 23 A. 258; Martin v. Gould Co., 96 Or. 635, 190 P. 717; Merrill v. Wakefield Rattan Co., 1 App. Div. 118, 37 N.Y. Supp. 64; Farley v. Universal Mills (Tex.), 116 S.W.2d 488; 39 C.J. 96, sec. 105.
Plaintiff was not entitled to further hearing and investigation after his attempted demand therefor, because he waived further investigation by causing the union grievance committee to act for him in the hearings and investigations previously conducted by the defendant.
Rolandez v. Star Liquor Dealers, Inc., 257 App. Div. (N.Y.) 97, 12 N.Y.S.2d 17.
Plaintiff should not be allowed to recover in this action, because sufficient cause for discharge was shown.
39 C.J. 96, Sec. 105, p. 105, Sec. 128; Odoneal v. Henry, 70 Miss. 172, 12 So. 154.
The plaintiff, conceding for the purpose of argument that he was entitled to recover any amount, should not have been allowed to recover the amount of his compensation beyond the date of his incarceration in jail, charged with the commission of a crime.
Gulf Ship Island R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71.
Jo Drake Arrington, of Gulfport, for appellee.
Appellee should recover, because:
(a) Appellant waived written demand for investigation; (b) Appellee actually made written demand therefor; (c) If discharged without sufficient cause, appellee was entitled to recover in any event.
Moore v. Ill. Cent. R.R. Co., 180 Miss. 275, 170 So. 593; Independent Order, Sons Daughters of Jacob v. Wilkes, 98 Miss. 179, 53 So. 493; Eminent Household of Columbian Woodmen v. Payne (Ala.), 88 So. 454.
The alleged resignation was void, because:
(a) Appellee had no job to resign from; (b) Of failure of consideration; (c) Obtained by fraud; (d) Obtained illegally and in violation of public policy; (e) Obtained by duress; (f) Appellant cannot take advantage of its own wrong.
Railroad Co. v. Slack, 62 Maryland 161; 13 C.J. 445, section 382 et seq.; 13 C.J. 449, section 389.
It was appellant's duty to conduct a fair and impartial investigation.
Section 2, Article 18; McGlohn v. Gulf S.I.R.R. Co., 179 Miss. 396, 174 So. 250; Gulf S.I.R.R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71.
Appellee was discharged without sufficient cause.
39 C.J. 101, section 120; McHenry v. State, 119 Miss. 298, 80 So. 763; 23 C.J. 40, section 1783; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Anderson v. Telephone Co., 86 Miss. 341, 38 So. 786; Bunckley v. Jones, 79 Miss. 1, 29 So. 1000; So. Bell T. T. Co. v. Quick, 167 Miss. 438, 149 So. 107; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295, 95 A.L.R. 157; 23 C.J. 40, section 1784; 22 C.J. 115, section 55.
Appellee was entitled to recover full damages.
Gulf S.I.R.R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71.
The verdict is manifestly right.
McGlohn v. G. S.I.R.R. Co., 179 Miss. 396, 174 So. 250; Moore v. Ill. Cent. R.R. Co., 180 Miss. 276, 176 So. 593; Gulf S.I.R.R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71.
Any error committed by lower court was harmless.
Pascagoula St. Ry. Power Co. v. Brondum, 50 So. 97, 96 Miss. 28; St. Louis S.F.R. Co. v. Moore, 58 So. 471, 101 Miss. 768; Lindsey v. Holley, 63 So. 222, 105 Miss. 740; Hale v. Hinkle Mercantile Co., 159 Miss. 796, 132 So. 751, and citations therein.
The appellant was not entitled to a verdict in any event.
Tush-ho-yo-tubby v. Barr, 45 Miss. 189; Hubbard v. So. Ry. Co., 83 So. 247, 120 Miss. 834.
Eaton Eaton, of Gulfport, for appellant, in reply.
In response to the argument advanced by appellant that the plaintiff is barred from maintaining his action because he failed to make written demand for investigation in the manner and within the time provided in the contract, appellee states that such demand was unnecessary. In the first place, the position of appellee as to the theory of his cause of action cannot be changed at this late date, for his declaration charged only a violation of Article 18, which provides for the giving of the written demand as a prerequisite to investigation as to whether or not sufficient cause exists for an employee's discharge. No other violation of any other provision of the contract is alleged or indeed sought to be proved. Defendant filed a plea to the declaration alleging as a special defense that good and sufficient cause existed for discharge of plaintiff. Plaintiff demurred to this plea. This demurrer was sustained, which action of the court is assigned as error.
Now the plaintiff contends that if he were discharged without sufficient cause, his action can be maintained whether he gave the demand for investigation or not. His declaration does not support this position, because it alleges as a violation of the contract the failure to give investigation. And if the plaintiff failed to make the demand therefor as provided in the contract, then his action must fail. The plaintiff presented his entire case in the lower court upon the alleged violation of the provision requiring investigation after proper demand was made, and not upon an alleged wrongful discharge without cause. The action could be predicated only upon such a violation of the contract, for in the absence of this contract the defendant could have discharged plaintiff at any time, regardless of the existence of sufficient cause. Butler v. Smith, 35 Miss. 457; Rape v. M. O.R.R. Co., 136 Miss. 38, 100 So. 585. The appellee's right to maintain this action can be predicated only upon such violation, because in the absence of the contract it is elementary that the employer has the right to discharge an employee regardless of the existence of sufficient cause. Obviously, therefore, the plaintiff's right to maintain his action is based upon the contract, and if he fails himself to comply with the provisions of this contract, with reference to the giving of the demand, his right of action fails.
Argued orally by James Eaton, for appellant, and by Jo Drake Arrington, for appellee.
Plaintiff, F.M. Rawls, was employed by the defendant, Tri-State Transit Company of Louisiana, Inc., as a passenger bus driver. Rawls' employment was subject to the provisions of a contract between defendant and the Amalgamated Association of Street Electric Railway and Motor Coach Employees of America, Division No. 1127, of which plaintiff was a member at the time of his discharge by the defendant. Plaintiff sued and recovered judgment for damages for wrongful discharge from such employment. Article 18, sec. 1, of said contract is as follows: "Operators will not be disciplined or dismissed from service nor will entries be made against his record without sufficient cause." The contract further provides a procedure by which a discharged employee may obtain an investigation as to the justification for his discharge and for successive appeals to higher officers of the company from rulings thereon adverse to the employee, and for arbitration. The contract provided also for written demand by a discharged employee for such investigation with waiver provisions in the event specified time limits were exceeded.
Suit was brought for violation of the contract. The defendant was compelled to respond to the theory set up in the declaration and in plaintiff's instructions, and in doing so raised issues as to compliance with or waiver of the requirements of the contract with regard to investigation by and appeal to officers of the company. An examination of the assignments of error relating to these issues is pretermitted by our conclusion that the plaintiff was not required to exhaust these administrative remedies as a prerequisite to recourse to the courts by suit to recover damages for unjustified discharge. Moore v. Illinois Central Railroad Co., 180 Miss. 276, 277, 176 So. 593; Moore v. Illinois Central Railroad Co., 61 Sup. Ct. 754, 85 L.Ed. 1089, decided March 31, 1941.
The assignments of error which relate to purported release and resignation executed by plaintiff are overruled inasmuch as the jury were properly instructed as to the effect to be given such documents under the respective theories set forth in the several instructions.
There was no error in refusing defendant's instruction number nine, which required judgment for defendant if the jury found that plaintiff had, during the period for which plaintiff sought damages for time lost, been confined in jail charged with crime. Only three days were involved, and the case does not fall within the decision in Gulf Ship Island R. Co. v. McGlohn, 183 Miss. 465, 184 So. 71, where, under facts otherwise similar, plaintiff was convicted and sentenced to confinement in the penitentiary.
Since plaintiff is allowed to base his suit directly upon his immunity from discharge without sufficient cause as provided in Article 18, section 1, of the contract, the right of the defendant to justify such discharge must likewise be protected. Defendant's plea number four specifically set up justification, but a demurrer thereto was sustained. This was error.
It is true that there was some testimony introduced which related to the basis for such discharge which would have been relevant to such issue and which, if established, would weigh heavily against plaintiff, yet we must assume that defendant conducted its defense in deference to the ruling of the court on the demurrer and in response to the contractual theory upon which the suit was based and the trial conducted. This view is strengthened by the fact that one of the grounds of the demurrer was that the plea did not set up that sufficient cause for discharge was found to exist by an investigation conducted pursuant to the contract, and the further fact that in response to the court's ruling an amended plea was filed by defendant setting up the adjudication of sufficient cause under and pursuant to the contractual provisions on which same was joined.
Reversed and remanded.