Cleveland v. Jenkins

• Decision Date: 24 October 1898
• Citation: Cleveland v. Jenkins, 174 Ill. 398, 51 N.E. 811 (Ill. 1898)
• Court: Illinois Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. JENKINS.

174 Ill. 398

51 N.E. 811

CLEVELAND, C., C. & ST. L. RY. CO.

v.JENKINS.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, Fourth district.

Action by Charles Jenkins against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. A judgment for plaintiff was affirmed by the appellate court (70 Ill. App. 415), and defendant appeals. Reversed.C. S. Conger (H. M. Steely, of counsel), for appellant.

Mundy & Organ and Cullop & Kessinger, for appellee.

This was an action on the case, brought by Charles Jenkins against appellant in the circuit court of Wabash county. The declaration charges that the plaintiff has been a faithful employé of the defendant for 10 years as a conductor on one of the freight trains on the line of its railroad running from Cairo to Danville, Ill.; that he was discharged about November, 1893, without cause, and although, by the regulations and customs of the defendant, a letter or clearance card is usually given to discharged employés, in order that they may secure employment on other roads, it being essential for that purpose, such letter or clearance card was refused to him, although he had often applied for it, whereby he had failed to secure employment; that defendant and other railroad companies had a rule or custom, which is charged to be a conspiracy, not to employ a discharged employé of another road without such a letter or clearance card; that after his discharge, and failure, on request, to receive such card, the plaintiff applied to various railroad companies for employment, but was uniformly refused on account of not having such card, to which he was entitled; that he had been receiving $85 per month from the defendant for his services as conductor previous to his discharge, and that he was qualified and competent to earn the same wages on other roads, and would have done so had he received such card; that by reason of such failureand refusal on the part of defendant he was unable to secure employment, and compelled to quit such line of work, to his loss and damage. The declaration contains one count, and avers a cause of action in case arising out a contract. It avers the usage or custom existing upon the road of defendant and other roads, whereby a discharged employé is entitled to such letter, showing the time of service, reason for discharge, etc.; thus averring a contractual relation, out of which, as alleged, arose the duty, when such contractual relation was severed, to give a letter or clearance card for the purpose stated. The theory proceeded upon by plaintiff, as charged in the declaration, was that after his discharge he was entitled to such a clearance card, which was refused him, and without which he could not secure employment on other roads, whereby occurred the damage stated. To this declaration defendant pleaded the general issue. It appears from the record that shortly before the plaintiff's discharge he had been indicted by three separate indictments by the grand jury of Johnson county, Ill.,-two for larceny and one for embezzlement. Upon the confession or statement of one of the station agents of the appellant company, who had also been indicted by the grand jury for larceny in taking from cars certain goods, at various times, which were being transported, the plaintiff, Jenkins, was implicated. Upon being thus indicted, as before stated, he was suspended by the superintendent of the appellant road, and subsequently was discharged. Upon the trial of the criminal charges in the circuit court of Johnson county, on two of the indictments Jenkins was acquitted, and one indictment against him was nolled. On different occasions, before and after the disposition of the indictments against him, he made application for the clearance card, which was refused. A jury in the trial court found for the plaintiff, and assessed his damages at the sum of $875. Motion for new trial was overruled, and judgment entered on the verdict. On appeal to the appellate court for the Fourth district this judgment was affirmed, and from that judgment of affirmance this appeal is brought to this court on a certificate of importance.

PHILLIPS, J. (after stating the facts).

The gravamen of the declaration in this case is that the plaintiff was discharged, and refused a clearance card or letter, to which he was entitled, without which he could not obtain employment on any other road, and that he failed to obtain such employment, whereby he suffered damages. The declaration avers a cause of action on the case arising out of a contract. It avers a contractual relation, out of which, as alleged, arose the duty, when such contractual relation was severed, to give a letter or clearance card for the purpose stated. Unless the law imposes on appellant, in some form, the duty to give appellee, as one of its employés, a letter of recommendation or clearance card, his action in this case cannot be sustained. If a legal duty is imposed upon the employer to give to a discharged employé, or one voluntarily leaving his service, a letter of recommendation, such duty must arise either by the common law, by statute, by contract of employment, or by such a generally established usage or custom as would demand it be done. Such usage, however, must be so well known and uniformly acted upon as to raise a fair presumption it was intended to be incorporated in the contract of employment. A distinction is to be made between what is known, in terms, as a clearance card, and a letter of recommendation.This distinction is apparent, not only from the evidence in this case, but also from the knowledge which courts have of the general conduct and management of railroad business and affairs. It is the duty of courts to take, and they will take, judicial notice of the general business affairs of life, and of the manner in which ordinary railroad business is conducted, and of the every-day practical operation of them. Slater v. Jewett, 5 Am. & Eng. R. Cas. 515; Smith v. Potter, 2 Am. & Eng. R. Cas. 140.

From the evidence produced on this question, and from this judicial notice which we take of the ordinary general management of railroads, it is apparent that what is known as a clearance card is simply a letter, be it good, bad, or indifferent, given to an employé at the time of his discharge or end of service, showing the cause of such discharge or voluntary quittance, the length of time of service, his capacity, and such other facts as would give to those concerned information of his former employment. Such a card is in no sense a letter of recommendation, and in many cases might, and probably would, be of a form and character which the holder would hesitate and decline to present to any person to whom he was making application for employment. A letter of recommendation, on the contrary, is, as the term implies, a letter commending the former services of the holder, and speaking of him in such terms as would tend to bring such services to the favorable notice of those to whom he might apply for employment.

As stated, an action for failure to give an employé either of the above forms of letters must be based either upon the common law or the statute, or arise out of the contract of employment, or be required by usage or custom. By the common law no such duty was imposed upon the employer. In the American & English Encyclopedia of Law (volume 14, p. 799) it is said: ‘It is not legally compulsory on a master or mistress to give a discharged servant any character, it matters not how much a servant is entitled to character in fairness, or how cruel the refusal might be.’ In Townsh. Sland. & L. (4th Ed.) p. 425, it is said: ‘On examination it will be perceived that this right of an ex-employer to give, as it is termed, a ‘character’ to his ex-employé, is nothing more than a consequence of the right to communicate one's belief. * * * No one is under any obligation to make such a communication. He does not owe it as a duty, either to the employer or the employé, to make any communication on the subject.' In the case of Railroad Co. v. Kasson, 37 N. Y. 224, which involved a similar question, in the opinion it was said: ‘If I know that a villain intends to defraud or in any way injure my neighbor, it is doubtless my duty, as a good citizen and as a Christian man, to put him on his guard. But there is no rule of law which renders me liable for his loss in case of my neglect of this duty. It is a moral duty, simply, not recognized by law.’ In Smith on Master and Servant (Text-Book Ed., pp. 380, 381) it is said: ‘It is clear, however, that, in the absence of any specific agreement to that effect, there is no legal obligation binding a person who has retained another as a servant to give that person any character at all on dismissal, and that no action will lie against him for refusing to do so.’ In Carrol v. Bird, 3 Esp. 201, it is set forth in the declaration that the plaintiff's wife, having been retained by the defendant as a servant, was dismissed from the service; that, after she was so dismissed, she applied to a person of the name of Stewart for the purpose of being retained and hired as a servant; that Mrs. Stewart was ready and willing to have hired and taken her into her service if the defendant would have given her a character, and such character was satisfactory; that it was the duty of the defendant, by law, to have given her such character as she deserved; that the defendant, not regarding her duty, wholly refused to give her any character whatever, by reason of which the said Mrs. Stewart refused to hire her into service. In the opinion rendered in this cause Lord Kenyon said: ‘There was no case, nor could the action be supported by law. By some old statutes regulations were established respecting the characters of laborers, but in the case of domestic and menial servants there was no law to compel the master to give the servant a character. It might be a duty which his...