Craig v. Thompson

• Decision Date: 20 April 1951
• Docket Number: No. 6986,6986
• Citation: 240 S.W.2d 163
• Parties: CRAIG v. THOMPSON.
• Court: Missouri Court of Appeals

Page 163

240 S.W.2d 163

CRAIG v. THOMPSON.

No. 6986.

Springfield Court of Appeals, Missouri.

April 20, 1951.

Thomas J. Cole, of St. Louis, E. A. Barbour, Jr., of Springfield, for appellant.

Jo B. Gardner, of Monett, for respondent.

BLAIR, Judge.

In his petition, as amended, plaintiff asked judgment for $6,103.69. He charged violation of a contract of employment as a brakeman on defendant's railroad. Plaintiff alleged his wrongful discharge occurred on May 30, 1947, or immediately thereafter. The case was tried in Lawrence County by a jury, which returned a verdict for plaintiff in the sum of $4,050.00. Judgment was rendered on that verdict and, after unsuccessful motion for new trial, the case comes to this court on appeal.

Plaintiff alleged that his discharge was not 'for good and sufficient causes,' and violated the terms of Article 52; that he was not accorded a fair and impartial hearing, and that such alleged hearing was not within five days after he was discharged. Plaintiff alleged that 'in truth and in fact, the real basis for plaintiff's discharge was the bias and prejudice of defendant's said Trainmaster Bishop and the other agents, servants, and employees of defendant who administered the discipline against plaintiff.' He claimed to have lost wages in the amount which he asked in the petition and prayed judgment therefor.

In his answer, defendant admitted his trusteeship and alleged that plaintiff was not entitled to an 'investigation' as provided in Article 52, but that the evidence given on an investigation, held on June 5, 1947, fully justified plaintiff's discharge.

A motion was filed by plaintiff to strike out the evidence as to the investigation actually held, because it did not constitute a real investigation, and he later filed interrogatories, which were stricken out except question 1 to 5 inclusive.

Plaintiff testified that he had received no remuneration during the period following his discharge and furnished evidence tending to show that he would have earned $6,103.69, during the period after his discharge. The evidence of defendant tended to show that plaintiff's claimed wages would not have been so much from May 31, 1947, to the time of the trial.

It was agreed that Rules 703, 717 and 803 of defendant's Uniform Code of Operating Rules applied. Such rules will here be set out.

'703. Employes must be alert, devote themselves exclusively to the service, give their undivided attention to their duties during prescribed hours, reside wherever required, and obey promptly instructions from the proper authority in matters pertaining to their respective branches of the service.'

'717. Employes must not absent themselves from their duties, exchange duties with nor substitute others in their place, without proper authority.'

'803. Employes in train and engine service must register at the ends of their runs their names and addresses on prescribed form provided for the purpose. They must not leave their usual stopping places without giving notice where they can be found, and must not leave the vicinity, when subject to call, without permission from the proper officer.'

Articles 51 and 52, of the Brotherhood of Railroad Trainmen, which defendant contended did not fully apply in this case, are as follows:

'Article 51

'Suspension and Discharge.

'Any trainman may be suspended from duty for a reasonable time, or for investigation of any alleged misconduct, or for violation of rules or orders, and may be discharged from the service of the Railroad for good and sufficient causes. These causes shall include intemperance, incompetency, habitual neglect of duty, gross violation of rules or orders, dishonesty or insubordination. For any of these causes they may be suspended by the Trainmaster and discharged by the Superintendent.'

'Article 52.

'Investigations.

'Before a trainman is discharged, or suspended for a definite term, or notation is made against his record, for an alleged fault, he shall have a fair and impartial trial, at which he may have a trainman of his choice, selected from the Railroad's service, to represent him, who will be permitted to examine witnesses. He or his representative shall be furnished with a copy of the evidence brought out at such investigation, which will be the basis for the discipline administered. When suspended for investigation, such investigation shall be held within five days. If found innocent, he shall be paid at regular rates for time lost, and reinstated. If detained more than 5 days awaiting investigation, he shall be paid for extra time in excess of five days, whether found guilty or not. When a notation is entered against the record of a trainman he will be furnished a copy and will receipt for it. If the notation against his record is decided to be unjust it will be eliminated.

'The above will not apply to violations of General Manager's Circular No. 14, or similar cases in which the Accounting Department is concerned, which will be handled as provided in agreement of February 26, 1912.'

The formal answer made by defendant alleged that, 'plaintiff was discharged for failure to protect service at St. Louis, 4:00 PM, May 30, 1947, and also at various times prior thereto and absenting himself from usual stopping place without authority, in violation of rules 703, 717 and 803 of the defendant's Uniform Code of Operating Rules in effect on said defendant's property.'

Defendant contended that the past record of plaintiff could be considered in this case, in addition to the conduct of plaintiff on May 30, 1947. He contended that plaintiff was given an investigation at 9:30 A.M. June 5, 1947, and alleged that, at such investigation, plaintiff admitted that he was not available for service as a brakeman on defendant's railroad at 4:00 o'clock P.M. on May 30, 1947.

Plaintiff said that he looked over the list of brakemen, at defendant's 23rd Street Station in St. Louis, and concluded that he would have plenty of time, if he reported Friday morning, and he went to Centertown, Missouri, to get some clean clothes, without telling defendant's operator...