Anderson v. Southern Ry. Co.

• Decision Date: 24 August 1953
• Docket Number: No. 16776,16776
• Citation: 224 S.C. 65,77 S.E.2d 350
• Parties: ANDERSON v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

Page 350

77 S.E.2d 350

224 S.C. 65

ANDERSON v. SOUTHERN RY. CO. et al.

No. 16776.

Supreme Court of South Carolina.

Aug. 24, 1953.

Frank G. Tompkins, Jr., Columbia, Sam R. Watt, Spartanburg, for appellants.

Walker & White, J. R. Flynn, John D. Long, Union, Franklin Park, Jefferson City, Tenn., for respondent.

STUKES, Justice.

This action was brought by a discharged railroad passenger conductor, now deceased, against his former employer, his union, the local division of it and B. J. Coleman, who was another conductor and chairman of the division. Pretrial appeal is reported in Edgar v. Southern R. Co., 213 S.C. 445, 49 S.E.2d 841, and further reference to the decision of it will be made infra.

Upon trial, plaintiff was nonsuited as to the union and the local division of it, without opposition by his counsel to their timely motion therefor. Verdict was returned by the jury in favor of plaintiff against the railway companies alone, thus absolving Coleman of laibility; the railway companies have appealed; they have been treated in the action as, and may be deemed for the purpose of the appeal to be, one and the same, and they will be referred to as 'the railway company' or 'the company,' or simply as the defendant.

The complaint alleged a meeting and conspiracy by the railway company through its general manager and division superintendent, the unions through their local chairman, Coleman, and the latter individually, in which it was agreed to deprive plaintiff of his employment which they did, whereby his seniority and retirement rights were destroyed and he was slandered and otherwise injured. It may be said parenthetically that at the time of the trial the plaintiff was receiving substantial monthly payments of disability benefits under the Railroad Retirement Act, 45 U.S.C.A. § 228a et seq.

The gravamen of the complaint was contained in the ninth paragraph, which follows:

'9. Thereafter and on or about September 26, 1945, pursuant to and in furtherance of the aforesaid scheme and conspiracy, a meeting, attended by a large group of persons, was held by the defendants in the Office of Superintendent of the defendant Southern Railway Company in Columbia, South Carolina, at which meeting the contents of the aforesaid affidavits as well as the insinuations and charges of embezzlement necessary arising therefrom, were aired, published and disclosed to various and sundry persons who were present at said meeting, in addition to the publication of the contents of said affidavits to the Notaries Public before whom the same were sworn to and subscribed as above alleged; and in and by such publications, and the circumstances attending and surrounding the same, the defendants purposed and intended to and did thereby charge, and conveyed to those present at said meeting as well as other persons in railroad circles, the malicious charges and insinuations that the plaintiff was a thief and an embezzler, that he was dishonest and corrupt in the discharge of his official trust and duties as a railway conductor, that he had betrayed the passengers or customers of the defendant railroad companies, that he was unfit to be trusted, his integrity impeached, and he unworthy of confidence and trust.'

There was no cause of action for conspiracy left after the unopposed order of involuntary nonsuit in favor of the union and local division and after the verdict of the jury in favor of Coleman, from which there was no appeal; the company could not conspire with itself. Goble v. American Ry. Express Co., 124 S.C. 19, 115 S.E. 900; 11 Am.Jur. 588, Conspiracy, Sec. 59; Annotation, 19 Ann.Cas. 1254. Nor under the evidence was there a cause of action for wrongful discharge, in contravention of the union contract, because plaintiff admitted violations of the applicable company rules relating to the handling and accounting for cash passenger fares, which it is not contended in the brief was insufficient to warrant the lawful discharge of the plaintiff. Furthermore, in the above cited decision in the first appeal the complaint was construed to state a cause of action, quoting, 'for an alleged conspiracy to damage and injure the plaintiff in his reputation and property', whereby the right, if any before, to recovery for wrongful discharge was eliminated. 213 S.C. at page 456, 49 S.E.2d at page 845. That became 'the law of the case.'

However, it is claimed by respondent that the verdict against the company alone is referable to the cause of action for libel and slander which survived the collapse of the alleged causes of action for conspiracy and wrongful discharge. Goble case, supra; Green v. Smith, 149 S.C. 303, 147 S.E. 333; 15 C. J. S., Conspiracy, § 31c, p. 1053. The authority of True v. Southern R. Co., 159 S.C. 454, 157 S.E. 618, is conclusive to the contrary. Seldom is there so identical a precedent as is that case for this. The former distinguishing feature of the alleged conspiracy is gone perforce the order of nonsuit and the verdict in favor of Coleman. The True case was the action of a conductor for damages for libel which arose exactly as did the instant case; nonsuit of plaintiff was affirmed with citation of a wealth of supporting authorities which need here not be repeated.

The trial judge instructed the jury that their verdict should be founded upon the allegations of the complaint. Publication of the alleged libel and slander was alleged to have occurred at the meeting which is referred to in the ninth paragraph of the complaint, quoted above. But it was held to give opportunity to the plaintiff to answer the charges, which was required under the terms of the collective bargaining agreement between plaintiff's union and the company. Article 31 and the first paragraph of article 32 of it follow:

'Investigations and Discipline

'Conductors will not be discharged or demerited without an investigation, which will be made by proper officer within five days if possible, and in their presence. They will have the privilege of bringing to the investigation to assist them a representative of their own selection, provided such person is an employee in good standing. If found blameless, they will be paid for time lost. If discharged, they will be furnished with a letter showing cause of dismissal, term of service, and the capacity in which employed. If demerited, they will be furnished with a written notice of same.'

'Article 32

'(a) Adjustment Matters

'(1) No grievance will be entertained unless presented in writing to the Superintendent within sixty days after its occurrence. Conductors shall have the right to appeal, provided such appeal be made in writing within sixty days after the Superintendent has rendered his decision.'

The investigation or hearing, also referred to above as the meeting, was held on September 26, 1945, in the private, upstairs office of the division superintendent in the Columbia Union Station building, conducted by the general manager and attended by only five...