Opinion
No. 6986.
April 20, 1951.
APPEAL FROM THE CIRCUIT COURT, LAWRENCE COUNTY, THOMAS A. JOHNSON, J.
Thomas J. Cole, of St. Louis, E. A. Barbour, Jr., of Springfield, for appellant.
Jo B. Gardner, of Monett, for respondent.
In his petition, as amended, plaintiff asked judgment for $6,103.69. He charged violation of a contract of employment as a brakeman on defendant's railroad. Plaintiff alleged his wrongful discharge occurred on May 30, 1947, or immediately thereafter. The case was tried in Lawrence County by a jury, which returned a verdict for plaintiff in the sum of $4,050.00. Judgment was rendered on that verdict and, after unsuccessful motion for new trial, the case comes to this court on appeal.
Plaintiff alleged that his discharge was not "for good and sufficient causes," and violated the terms of Article 52; that he was not accorded a fair and impartial hearing, and that such alleged hearing was not within five days after he was discharged. Plaintiff alleged that "in truth and in fact, the real basis for plaintiff's discharge was the bias and prejudice of defendant's said Trainmaster Bishop and the other agents, servants, and employees of defendant who administered the discipline against plaintiff." He claimed to have lost wages in the amount which he asked in the petition and prayed judgment therefore.
In his answer, defendant admitted his trusteeship and alleged that plaintiff was not entitled to an "investigation" as provided in Article 52, but that the evidence given on an investigation, held on June 5, 1947, fully justified plaintiff's discharge.
A motion was filed by plaintiff to strike out the evidence as to the investigation actually held, because it did not constitute a real investigation, and he later filed interrogatories, which were stricken out except questions 1 to 5 inclusive.
Plaintiff testified that he had received no remuneration during the period following his discharge and furnished evidence tending to show that he would have earned $6,103.69, during the period after his discharge. The evidence of defendant tended to show that plaintiff's claimed wages would not have been so much from May 31, 1947, to the time of the trial.
It was agreed that Rules 703, 717 and 803 of defendant's Uniform Code of Operating Rules applied. Such rules will here be set out.
"703. Employees must be alert, devote themselves exclusively to the service, give their undivided attention to their duties during prescribed hours, reside wherever required, and obey promptly instructions from the proper authority in matters pertaining to their respective branches of the service."
"717. Employes must not absent themselves from their duties, exchange duties with nor substitute others in their place, without proper authority."
"803. Employes in train and engine service must register at the ends of their runs their names and addresses on prescribed form provided for the purpose. They must not leave their usual stopping places without giving notice where they can be found, and must not leave the vicinity, when subject to call, without permission from the proper officer."
Articles 51 and 52, of the Brotherhood of Railroad Trainmen, which defendant contended did not fully apply in this case, are as follows:
"Article 51
"Suspension and Discharge.
"Any trainman may be suspended from duty for a reasonable time, or for investigation of any alleged misconduct, or for violation of rules or orders, and may be discharged from the service of the Railroad for good and sufficient causes. These causes shall include intemperance, incompetency, habitual neglect of duty, gross violation of rules or orders, dishonesty or insubordination. For any of these causes they may be suspended by the Trainmaster and discharged by the Superintendent."
"Article 52.
"Investigations.
"Before a trainman is discharged, or suspended for a definite term, or notation is made against his record, for an alleged fault, he shall have a fair and impartial trial, at which he may have a trainman of his choice, selected from the Railroad's service, to represent him, who will be permitted to examine witnesses. He or his representative shall be furnished with a copy of the evidence brought out at such investigation, which will be the basis for the discipline administered. When suspended for investigation, such investigation shall be held within five days. If found innocent, he shall be paid at regular rates for time lost, and reinstated. If detained more than 5 days awaiting investigation, he shall be paid for extra time in excess of five days, whether found guilty or not. When a notation is entered against the record of a trainman he will be furnished a copy and will receipt for it. If the notation against his record is decided to be unjust it will be eliminated.
"The above will not apply to violations of General Manager's Circular No. 14, or similar cases in which the Accounting Department is concerned, which will be handled as provided in agreement of February 26, 1912."
The formal answer made by defendant alleged that, "plaintiff was discharged for failure to protect service at St. Louis, 4:00 PM, May 30, 1947, and also at various times prior thereto and absenting himself from usual stopping place without authority, in violation of rules 703, 717 and 803 of the defendant's Uniform Code of Operating Rules in effect on said defendant's property."
Defendant contended that the past record of plaintiff could be considered in this case, in addition to the conduct of plaintiff on May 30, 1947. He contended that plaintiff was given an investigation at 9:30 A.M. June 5, 1947, and alleged that, at such investigation, plaintiff admitted that he was not available for service as a brakeman on defendant's railroad at 4:00 o'clock P.M. on May 30, 1947.
Plaintiff said that he looked over the list of brakemen, at defendant's 23rd Street Station in St. Louis, and concluded that he would have plenty of time, if he reported Friday morning, and he went to Centertown, Missouri, to get some clean clothes, without telling defendant's operator clearly that he did not expect to remain in St. Louis, and subject to call.
In his brief, plaintiff indicates that he told the operator of defendant at its 23rd Street Station in St. Louis, where he was going and that the operator said, it would be all right. He cites page 42 of the transcript in support of this testimony. The same page of the transcript indicates that the operator then thought that plaintiff's address for calls was still at the Y.M.C.A. in St. Louis. There is no evidence to show that the defendant's operator realized that plaintiff was going beyond call, if he was assigned for duty before his return. Plaintiff said that he called the operator at defendant's 23rd Street Station in St. Louis by telephone and then, for the first time, heard that he missed a call at 4:00 o'clock P.M. on May 30th.
Plaintiff claimed that he was entitled to a lay off of 24 hours, regardless of the time he had been working prior thereto. This was denied by defendant.
The evidence of defendant was to the effect that plaintiff had missed other calls. Plaintiff claimed that the alleged investigation, held on June 5, 1947, only covered the call he missed on May 30, 1947, and that he had not been investigated as to other calls which he had missed.
Plaintiff charged that he was the victim of bias and prejudice; but we are inclined to think he fell far short of proving the existence of such bias and prejudice. In fact, if there was any evidence of such bias and prejudice in the case at all, it was in favor of plaintiff, since no serious complaint had been made about the missing of other calls by plaintiff. Plaintiff cites Ford v. Louisville N. R. Co., 355 Mo. 362, 196 S.W.2d 163; Johnson v. Thompson (which was said not to have been reported when defendant's brief was filed, but which is now reported in Mo.App., 236 S.W.2d at pages 1, 9) and Carpenter v. Wabash Ry. Co., 335 Mo. 130, 71 S.W.2d 1071.
We have examined these cases and find that only the Johnson case was one for damages for alleged wrongful discharge of an employee. The Johnson case was written by Judge McDowell of this Court, and was decided on December 5, 1950. The same attorneys represented each side, as in this case. The Johnson case was for the alleged wrongful discharge of a conductor in St. Louis for asserted intemperance. We did not reverse that case, but reversed and remanded it. As only a motion for rehearing was filed and later overruled, without request to transfer it to the Supreme Court, we feel at liberty to quote to some extent from the opinion in that case.
Plaintiff complains that evidence of other times when he missed calls was not considered in the investigation held on June 5, 1947, and should not have been considered in the trial of this case. In the Johnson case, through Judge McDowell, we said: "We cannot agree with the trial court that the plain and ordinary meaning of the words used in this contract would require the violation of more than one rule to constitute a gross violation thereof."
Again Judge McDowell said: "We hold that under the plain meaning of the contract a violation of any one of the causes so enumerated would constitute a valid ground for discharge of the deceased."
There is not the slightest question in this case but that plaintiff missed his assignment on May 30, 1947. Plaintiff left St. Louis without advising the operator of defendant intelligently that he was going to Centertown, Missouri, where he could not be called, if he was needed.
The evidence clearly shows, and the plaintiff admits, that there were other occasions when he did not report for duty, when he was called. But plaintiff argues that he was given no investigation on the other occasions and his discharge on the occasion, when he did miss his call, on May 30, 1947. was not enough to justify his discharge. He clearly was liable to discharge for his admitted violation of Rule 803, on May 30, 1947. We have held in the Johnson case that a single violation of a rule "would constitute a valid ground" for the employee's discharge. Plaintiff was simply fortunate that he was not discharged on the other occasions when he failed to report for duty when called.
The transcript discloses that a large number of witnesses were called by defendant and that the trial court gave and refused to give a great many instructions. In view of what we have said in the Johnson case, and in view of plaintiff's admission that he not only missed his call on May 30, 1947, but on other occasions also, the trial court should have granted defendant's request for a directed verdict upon plaintiff's evidence.
It results that the verdict, rendered on the jury's verdict for plaintiff, was improper and we cannot permit a judgment rendered thereon to stand. That judgment must be reversed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.