Carson v. Southern Ry. Co.

• Decision Date: 27 September 1979
• Docket Number: Civ. A. No. 79-82.
• Citation: 494 F. Supp. 1104
• Court: U.S. District Court — District of South Carolina
• Parties: W. T. CARSON, Jr., Plaintiff, v. SOUTHERN RAILWAY COMPANY, Defendant.

494 F. Supp. 1104

W. T. CARSON, Jr., Plaintiff, v. SOUTHERN RAILWAY COMPANY, Defendant.

Civ. A. No. 79-82.

United States District Court, D. South Carolina, Greenville Division.

September 27, 1979.

W. T. Carson, Jr., pro se.

Frank H. Gibbes, III, of Rainey, Britton, Gibbes & Clarkson, P. A., Greenville, S. C., for defendant.

ORDER

HEMPHILL, District Judge.

This matter is before the Court on two motions filed by the defendant, Southern Railway Company. The first motion is a motion, pursuant to Rule 12(d) of the Federal Rules of Civil Procedure, for a hearing and determination on its previously asserted Rule 12(b)(1) defense that the Court lacks jurisdiction over the subject matter of this lawsuit; the second is a motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment in its favor.

This action was initially commenced in the Circuit Court of the State of South Carolina on or about December 27, 1978 and was thereafter removed to this Court by the defendant, Southern Railway Company, on or about January 12, 1979. In pertinent part the complaint filed on behalf of the plaintiff alleges:

II

That the Plaintiff was at all times relevant hereto an employee of the Defendant corporation. That on or about September 20, 1978, the Plaintiff was at the Defendants Southern Railway Yard at the County of Greenville, State of South Carolina, pursuant to his contract of employment. That the Plaintiff was accused by an agent and servant of the Defendant with being drunk while on duty. That said accusation was untrue and was made in front of friends of the Plaintiff and other employees of the company. . . .

III

That the above statements were uttered by the agents and servants of the Defendant with malice. That as a result of the above, the Plaintiff has undergone extreme embarrassment, has become emotionally upset, has suffered mental indignities, and has been terminated from his employment with Southern Railway System, and is subject to ridicule that his reputation has been lowered in the business community in which he works and the community in which he lives.

In its answer Southern admitted that its supervisor charged the plaintiff with a violation of Southern Railway Company Operating Rule G (which subjects an employee who uses or is under the influence of alcohol or certain other substances while on duty to dismissal or discipline) but denied that the charge was made in the presence of anyone other than the plaintiff. Southern further asserted, among other defenses, the defenses of lack of jurisdiction over the subject matter, absolute privilege, and qualified privilege.

On March 14, 1979 Southern took extensive deposition testimony from the plaintiff. Thereafter, on June 12, 1979, Southern served the two motions which are now before the Court together with supporting affidavits and a brief in support of its motions.

Through this point in these proceedings the plaintiff was duly represented by counsel. However, at or about the time Southern served the two motions which are now before the Court, certain irreconcilable differences arose between the plaintiff and his attorney which resulted in the plaintiff's attorney filing a motion to be relieved as counsel of record for the plaintiff in this action on or about June 19, 1979.

On July 5, 1979 a hearing was held on this motion. The plaintiff was present at the hearing and stated that he had no objection to his counsel being relieved so long as he was afforded a reasonable period of time to secure substitute counsel. After inquiring of the plaintiff as to the time he might need to secure substitute counsel and cautioning the plaintiff about the technical nature of the defenses asserted by Southern and the urgency of filing a proper response to Southern's motions, this Court issued its order granting the plaintiff 40 days in which to secure substitute counsel and file a memorandum in opposition to Southern's motions. At the time this Court further indicated its willingness to entertain an appropriate motion for additional time if the plaintiff's new attorney found that such additional time was necessary in order to properly respond to Southern's motions.

On August 23, 1979 a notice was issued by the Clerk of Court advising both parties to this suit that a hearing on Southern's pending motions would be held by this Court on September 10, 1979. The notice stated: "MR. CARSON: Please give this notice to your attorney, if you have obtained one since being directed to do so by the Court's order filed July 5, 1979."

The hearing on Southern's pending motions was held before me on September 10, 1979. The plaintiff appeared without counsel and advised the Court that he had not retained an attorney since the July 5 hearing. Southern was represented at the hearing by its counsel, Frank H. Gibbes, III of the law firm of Rainey, Britton, Gibbes & Clarkson, P.A.

This Court is mindful of its responsibility to assure that all litigants are treated fairly and are accorded equal justice under the law. This Court is ever more mindful of its responsibility in this regard where a party to a lawsuit appears pro se and without the benefit of trained and learned counsel so necessary to the conduct of litigation such as that now before the Court.

Accordingly, prior to the hearing held on September 10, 1979, the Court reviewed the record in this case more thoroughly than it might ordinarily be called upon to do. Further, at the hearing held on September 10, the Court took several specific steps to assure that the absence of counsel did not deprive the plaintiff of any right he might otherwise have in this matter: First, the Court assured itself that lack of sufficient time had not precluded the plaintiff from securing substitute counsel; second, the Court advised the plaintiff in clear and concise terms of his burden of proving that the allegedly slanderous remark was published to a third person; and, third, the Court reviewed the critical parts of the plaintiff's deposition testimony with him to assure that the plaintiff's answers to questions propounded by Southern's counsel fully and fairly reflected all the evidence the plaintiff might be able to offer in support of his action.

Being satisfied that the plaintiff's rights have been fully protected and having carefully reviewed both the facts and the law which apply in this matter, this Court must conclude that Southern's motion to dismiss and its motion for summary judgment are meritorious and should be granted. While the Court's decision to grant Southern's motion to dismiss for lack of subject matter jurisdiction would ordinarily make inquiry into Southern's motion for summary judgment unnecessary, the Court, in a continuing effort to protect the plaintiff's rights, has fully advised the plaintiff concerning his right to appeal from this order; recognizing that an appeal may be taken, this Court believes that it is in the best interest of both parties that the Court issue its alternative ruling disposing of Southern's motion for summary judgment.

The facts of this case, gleaned largely from the plaintiff's deposition testimony, are clear and not in dispute.

The plaintiff had worked for Southern as a conductor since 1945. As a conductor, Carson acted as the chief of a rail yard crew composed of an engineer and two (2) switchmen.

On September 30, 1978 Carson reported to work at Southern's Greenville rail yard around 3:00 p. m. or a little thereafter to act as a conductor for a crew assigned to the north yard. Before Carson could report to the yard master to get his instructions, James L. Gurkin, the plaintiff's supervisor, drove up in a crew cab with all the members of the plaintiff's crew ready to begin work. Gurkin told Carson that he would drive him and his crew up to the north yard, and, after Carson boarded the cab behind Gurkin, the entire group proceeded directly to the north yard.

When they arrived at the north yard, Gurkin instructed Carson to take an engine to the diesel yard. Carson and his crew then walked along the track about 200 yards and boarded the engine. By this time Gurkin had noticed that Carson's eyes appeared to be red and blood shot, and he also noticed that Carson seemed to be having difficulty comprehending instructions. Moreover, Gurkin smelled a strong odor of mouthwash or some type of mint on Carson's breath. Then, as Carson and his crew walked some 200 yards along the track to the diesel engine they were to move, Gurkin noticed that Carson appeared to be staggering and stumbling. Based on his observations of Carson, Gurkin believed that Carson might be intoxicated and that his condition was such that he could not safely perform his normal duties. Gurkin accordingly determined that Carson should be charged with violating Southern's Operating Rule G, which prohibits intoxication and the use of alcohol while on duty.¹

When Gurkin actually charged Carson with violating Rule G, Gurkin and Carson were the only people present. Gurkin approached Carson while he was sitting in the diesel engine next to the engineer and called him down off the engine. The rest of the crew remained on the engine while Gurkin and Carson walked a considerable distance away; only then did Gurkin charge Carson with a violation of Rule G. Gurkin also told Carson that he was being relieved of his duties and notified the yard master, but Gurkin did not inform the yard master of the reason for Carson's suspension.

At this point Carson asked to return to the engine to inform his crew of his suspension, but Gurkin instructed him not to return to the crew. Gurkin and Carson then walked back to the crew cab, and, along the way, they met a track supervisor, Bobby Rader. Carson told Rader that he wanted Rader to be his witness to the fact that Gurkin had charged him with violating Rule G. Gurkin simply stated that Carson did not need a witness.

After this brief encounter, Carson got in the crew cab and...