Chrisman v. Terminal R. Ass'n of St. Louis

• Decision Date: 06 January 1942
• Citation: 157 S.W.2d 230,237 Mo.App. 181
• Parties: William M. Chrisman, Jr., Respondent, v. Terminal Railroad Association of Saint Louis, Appellant
• Court: Missouri Court of Appeals

157 S.W.2d 230

237 Mo.App. 181

William M. Chrisman, Jr., Respondent, v. Terminal Railroad Association of Saint Louis, Appellant

Court of Appeals of Missouri, St. Louis District

January 6, 1942

Appellant's Motion for Rehearing Overruled January 20 1942. Petition for Writ of Certiorari Granted by Supreme Court March 10, 1942. Writ of Certiorari Quashed by Supreme Court January 5, 1943. Relator's Motion for Rehearing Overruled by Supreme Court March 25, 1943.

Appeal from the Circuit Court of the City of St. Louis; Hon. James E. McLaughlin, Judge.

Affirmed.

Carleton S. Hadley, Walter N. Davis and Arnot L. Sheppard for appellant.

(1) Respondent wholly failed to make a prima facie case. Therefore, the trial court erred in refusing to give the peremptory instruction requested by appellant at the close of respondent's evidence. (a) Sec. 5064, R. S. Mo. 1939 upon which this action is based, is in every sense a penal statute, is in derogation of common law, and must as a consequence be strictly construed. Lynch v. M. K. & T. R. Co. (Mo.), 61 S.W.2d 918; Cummins v. K. C. Public Service Co. (Mo.), 66 S.W.2d 920, 925. (b) There was no attempt by respondent to prove he requested a letter from appellant's superintendent or manager. In fact, he conceded he made no such request, but was content to make the request solely of the station master, who was also yardmaster or passenger train master. Thus, his own evidence shows unequivocally a failure to bring himself within the terms of the statute, which requires that the demand for this character of letter must be made to either the superintendent or manager. Sec. 5064, R. S. Mo. 1939; Chicago, R. I. & P. R. Co. v. Hall, 60 Okla. 220, 159 P. 851, 853. (c) Sec. 5064, R. S. Mo. 1939, further provides that failure of the superintendent or manager to give the letter there provided for shall be a misdemeanor subjecting the one or the other to punishment by fine or jail sentence. The presence of this provision points unerringly to the interpretation placed upon the preceding language, viz., "it shall be the duty of the superintendent or manager of said corporation, upon the request of such employee . . . to issue to such employee a letter," etc. (1) Thus it creates a duty upon one of two specified representatives of the corporation; it also imposes a penalty upon him. May it be said that either the superintendent or the manager may be convicted upon evidence that an employee requested a letter from some other employee or representative? Could respondent have sued either the superintendent or manager and have recovered against him upon the evidence which appears in this record? If not, then the correct interpretation of this statute must be that it requires the employee to request such a letter from the superintendent or manager. (2) That this is the correct interpretation is further emphasized when the question of punitive damages is considered. The general rule is that punitive damages are not recoverable against an employer unless they could have been recovered against the employee upon whose actions it is sought to create liability against the employer. 15 Am. Jur. 729, Damages, Sec. 287; Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97; Aetna Life Ins. Co. v. Brewer, 12 F.2d 818, 821. (3) This rule is no more than a slightly different application of a familiar rule in negligence cases where defendant's liability rests upon respondeat superior. McGinnis v. C. R. I. & P. R. Co., 200 Mo. 347. (2) Respondent's evidence wholly fails to prove either actual or legal malice. There is no attempt to prove ill will, spite or hatred on the part of Mr. Perry, who is charged by respondent with the failure to issue the letter. (a) Respondent's evidence does not support the position that either the superintendent or general manager entertained any ill will or hatred towards respondent. But even if it did, it would be of no avail, because they are not charged with having refused to issue the letter. He cannot try his case upon one theory in the trial court and another theory here. Kincaid v. Birt, 29 S.W.2d 97. (b) But even if he could, his evidence is wholly insufficient to establish any actual malice towards him on the part of Superintendent Davis or General Superintendent Matthewson. Hatton v. Carder Wholesale Grocery Co., 150 S.W.2d 1096, 1100. (c) Respondent's evidence fails to show legal malice on the part of anyone connected with appellant. He proceeds upon the theory that his furlough or discharge was wrongful and that fact alone made the refusal of Mr. Perry (who was under no statutory duty to issue such a letter) to issue the letter malicious. (1) The furlough or discharge of respondent was in no way wrongful as that word is used in the definition of legal malice. Respondent had acquired no seniority rights with respect to his job. Seniority rights (as used in the trial of this case in connection with the respondent's furlough or dismissal) mean the right of an employee older in service to be discharged after all employees younger in service have been discharged. This character of seniority right is created solely by special contract between an employer and an employee, either individually or by his duly authorized collective bargaining agent. Donovan et al. v. Travers et al., 285 Mass. 167, 188 N.E. 705; Estes v. Union Terminal Co., 89 F.2d 758, 774; Norfolk & W. R. Co. v. Harris, 260 Ky. 132, 84 S.W.2d 69, 71; Ryan v. N. Y. C. R. Co., 267 Mich. 202, 255 N.W. 365; Sharp v. Grand International Brotherhood of Locomotive Engineers, 223 Ala. 202, 135 S.W. 327. It is not contended respondent had an individual contract with appellant creating seniority rights; and it is conceded by witness Dwyer, general chairman of respondent's collective bargaining agent, that at the time of respondent's furlough or discharge no collective bargaining contract existed creating seniority rights. Therefore appellant had a right to furlough or discharge respondent for any reason however capricious, or for no reason at all. It cannot be said, then, that respondent's discharge or furlough was wrongful. If it was not wrongful, it could not have been malicious. (3) Because there is no evidence in this record tending to show malice, it was error to submit that hypothesis in respondent's instructions 2, 3 and 5. Hatton v. Carder Wholesale Grocery Co., 150 S.W.2d 1096, 1100. (4) The Court erred in admitting evidence respecting respondent's labor union affiliations and activities and those of his witnesses. He had no right to demand the discharge of those redcaps who were junior to him in length of service. Appellant had a right to discontinue his services for any reason it saw fit, or for no reason at all. It could have dismissed him because of his union activities or affiliations and still have been entirely within its legal rights. Therefore respondent's attempt to prove this was the reason for his alleged discharge not only tended in no way to prove his dismissal was wrongful, but could not by an process of logical reasoning have had the slightest tendency toward providing that the refusal to give him a service letter was malicious. (5) The verdict of $ 3,000.00 for punitive damages is so grossly excessive as to indicate the jury was motivated by passion rather than judgment, prejudice rather than fairness, doubtless resulting partially from the inflammatory and incompetent evidence which appears in this record. (6) Respondent's counsel in his argument contrasted appellant's and respondent's wealth, its corporate being against his natural being, its wealth against his poverty. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 482.

Hay & Flanagan for respondent.

(1) Sec. 5064, R. S. Mo. 1939, makes no specific requirement regarding the person of whom the request for a service letter shall be made, therefore, since evidence shows that a request was made of appellant's station master, question of wrongful refusal to issue service letter was properly submitted to the jury and court's refusal to grant appellant's request for peremptory instruction at the close of respondent's evidence is not error. Soule v. St. Joseph Railway, Light, Heat & Power Co. (Mo. App.), 274 S.W. 517; Lyons v. St. Joseph Belt Railway Co., 232 Mo.App. 575, 84 S.W.2d 933; Cheek v. Prudential Insurance Co. (Mo.), 192 S.W. 387. (2) Under evidence showing that requested service letter was not issued until nineteen months thereafter following filing of suit and antagonism of appellant's officer towards discharged employee, issue of punitive damages based upon appellant's actual or legal malice was properly submitted to the jury. Cheek v. Prudential Insurance Co. (Mo. App.), 223 S.W. 754; State ex rel. Crow v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S.W. 545, 45 L. R. A. 363; Hall v. St. Louis-San Francisco Railway Co., 224 Mo.App. 431, 28 S.W.2d 687. (3) Evidence that respondent's labor union affiliations and activities caused respondent's discharge from service is properly admissible as bearing on the issue of wrongful refusal to issue respondent a service letter and as to whether such refusal was malicious. (4) Verdict of $ 3,000 for punitive damages for wrongful refusal to issue service letter is not of itself so grossly inadequate as to indicate passion and prejudice. State ex rel. St. Joseph Belt Railway Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351. (5) Appellate courts defer largely to the ruling of the trial courts passing upon motions for new trial on the ground of prejudicial argument of counsel. Jones v. Kansas City (Mo.), 176 S.W.2d 340.

Hughes, P. J. McCullen and Anderson, JJ., concur.

OPINION

HUGHES

This is an action by respondent to recover from appellant both actual and punitive damages for an alleged violation of ...