Brotherhood of Locomotive Firemen and Enginemen v. Hammett

• Decision Date: 29 March 1962
• Docket Number: 6 Div. 389
• Citation: 273 Ala. 397,140 So.2d 832
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN v. James E. HAMMETT.
• Court: Alabama Supreme Court

Page 832

140 So.2d 832

273 Ala. 397

BROTHERHOOD OF LOCOMOTIVE FIREMEN & ENGINEMEN v. James E. HAMMETT.

6 Div. 389.

Supreme Court of Alabama.

March 29, 1962.

Rehearing Denied May 17, 1962.

Harold C. Heiss and Russell B. Day, Cleveland, Ohio, and Erle Pettus, Jr., and Rives, Peterson, Pettus & Conway, Birmingham, for appellant.

Thos. F. McDowell and Geo. S. Brown, Birmingham, for appellee.

COLEMAN, Justice.

This is an appeal by a defendant, the Brotherhood of Locomotive Firemen and Enginemen, an unincorporated association, from a judgment rendered against it on the verdict of a jury in an action for compensatory and punitive damages. Plaintiff alleged that '* * * as a proximate consequence of the willful, malicious and wrongful interference with his right to earn a living, he was caused to lost his employment * * *' and the earnings he would have received, and that he suffered other damage proximately resulting from such interference with his employment.

As originally commenced, the action was against three defendants, namely: the appellant, Local Number 937 of the appellant union, and one J. B. Otts, Jr. On motion of the plaintiff, Otts was stricken as a party defendant. The jury returned a verdict against appellant but not against Local Number 937.

The amended complaint recites that between March 21, 1955, and June 30, 1956, plaintiff was an employee of the Louisville & Nashville Railroad Company, herein sometimes referred to as the L. & N., and a member in good standing of a labor union known as the Brotherhood of Locomotive Engineers; that on March 21, 1955, the defendants were on strike against the L. & N., which strike lasted until May 11, 1955; that during said period plaintiff's union was not on strike and plaintiff operated a locomotive for his employer; that shortly after said strike was over, plaintiff's employer promoted plaintiff to a management position known as a 'traveling engineer'; that

'* * * During the months of June and part of July, 1955, agents, servants and employees of the defendants, while acting within the line and scope of their employment by the defendants wilfully, maliciously and wrongfully demanded that the plaintiff be removed from his position as 'traveling engineer' and taken off the property of the said employer because he had operated said locomotive as aforesaid during said strike. Plaintiff further alleges that the agents, servants and employees of the defendants while so acting as aforesaid wilfully, maliciously and wrongfully threatened said employer that they would strike if the plaintiff were not so removed and that said employer was forced by said threats to remove, and narrowly avoided a strike by removing, the plaintiff from his position. Plaintiff further alleges that on his removal from his position as 'traveling engineer' he was sent to Louisville, Kentucky, as assistant to the Master Mechanic where it was his duty to travel said employer's railroads and supervise the repair and maintenance of said employer's rolling stock; that during the period of his employment both as 'traveling engineer' and as assistant to the master mechanic there were numerous acts of violence or threatened violence on the part of the agents, servants and employees, of the defendants while acting as aforesaid that finally necessitated his employer to take him off the company property, the defendants agents, servants and employees, while acting as aforesaid, having maliciously, willfully and wrongfully threatened to use every resource at the defendants' command to get rid of him because of his operation of a locomotive during the aforesaid strike. And plaintiff alleges that because it was unsafe for him to remain as assistant to the Master Mechanic of said employer, about the middle of February, 1956, his employer was again forced, as the proximate result of said violence and threats to remove him from said position and thereafter gave him employment as a temporary buyer of locomotives. Finally, as a proximate consequence of said violence and threats on the part of the defendant's agents, servants and employees, while acting as aforesaid within the line & scope of their agency or employment in behalf of the defendants his employer, though work was available to him as a traveling engineer, cut him from the payroll on to-wit: June 30, 1956, and his contract of employment with his said employer was destroyed.'

There was no motion for new trial.

The appellant requested affirmative charges, with and without hypothesis, and the refusals thereof are severally assigned as error.

We do not understand that appellant controverts the proposition that an employee is entitled to recover compensatory and punitive damages from a defendant who maliciously and wrongfully causes the employee to lose his employment. Neither does appellant appear to deny the proposition that the requested affirmative charges were refused without error if there was sufficient proof from which a reasonable inference could be drawn that defendant wrongfully and maliciously caused plaintiff to lose his employment. Evans v. Swaim, 245 Ala. 641, 18 So.2d 400.

In this jurisdiction, the rule is firmly established that in civil cases the question must go to the jury if the evidence, or reasonable inferences arising therefrom, furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla, in support of the theory. Pappa v. Bonner, 268 Ala. 185, 188, 105 So.2d 87.

The question on this appeal, therefore, is to decide whether there was or was not a scintilla of evidence in support of plaintiff's theory.

Pertinent evidence tended to show that plaintiff's employment by the L. & N. commenced March 21, 1955, during a strike. Plaintiff was employed as a locomotive engineer. We understand that the appellant union was on strike, but that the union to which plaintiff belonged was not on strike. Appellant states in brief:

'* * * The two Brotherhoods are fierce competitors for the right to represent locomotive engineers and firemen in collective bargaining with the railroads.'

The strike lasted 58 days and ended May 10, 1955, after which date plaintiff was employed by the L. & N. as a traveling engineer on the Nashville & Decatur Division of that railroad. Traveling engineer is a supervisory position. Appellant's general chairman, Paschall, was active in having plaintiff removed 'from the N. & D. Division as Traveling Engineer,' and a strike was threatened by appellant unless plaintiff was so removed. On July 11, 1955, plaintiff was removed from the position of traveling engineer and employed as Assistant to the General Master Mechanic. Plaintiff encountered various difficulties as traveling engineer and as Assistant to the General Master Mechanic as he traveled over the L. & N. system in performing the duties of his employment. As soon as his identity became known, there was a continuous 'cat call,' or throwing of something, or hammering on tables. There was a general disturbance wherever plaintiff appeared. In February, 1956, an incident occurred at Mobile, and shortly thereafter plaintiff was removed from the position of Assistant to the General Master Mechanic. Plaintiff's removal was caused by violence and threats of violence which occurred when plaintiff's identity became known to personnel at places on the L. & N. system. Plaintiff continued on the L. & N. payroll until June 1, 1956, when he was discharged. There was work available for him as traveling engineer at the time of his discharge. This lawsuit was commenced March 21, 1957.

Appellant insists that it was entitled to the affirmative charge under its plea of the statute of limitations of one year. Appellant's argument is that the evidence fails to show any act on its part against plaintiff within...