Craig v. Thompson

• Decision Date: 12 November 1951
• Docket Number: No. 42719,42719
• Parties: CRAIG v. THOMPSON.
• Court: Missouri Supreme Court

Page 37

244 S.W.2d 37

CRAIG v. THOMPSON.

No. 42719.

Supreme Court of Missouri, en Banc.

Nov. 12, 1951.

Rehearing Denied Dec. 10, 1951.

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

Jo B. Gardner, Monett, for respondent.

CONKLING, Judge.

Jack L. Craig (plaintiff-respondent) had judgment in the circuit court against Guy A. Thompson, Trustee of Missouri Pacific Railroad Company (defendant-appellant) for $4050.00 for wages claimed lost by reason of the alleged wrongful discharge of Craig from his employment as a railroad brakeman. Upon defendant's appeal to the Springfield Court of Appeals plaintiff's judgment was reversed, that court ruling that 'the trial court should have granted defendant's request for a directed verdict'. See 240 S.W.2d 163, 166. Upon petition therefor, we thereafter ordered the cause transferred to this court. The parties filed additional briefs here and we heard the oral argument of counsel for each of the parties.

Plaintiff was employed on December 7, 1944, as a freight brakeman. He so remained in defendant's employment until May 30, 1947. His petition alleged he was 'wrongfully and unlawfully discharged by defendant'; that he was 'discharged for failure to answer a call for work'; that his 'discharge was not for good and sufficient causes in accordance with the terms of Article 51' of his written contract of employment; that he was 'not accorded a fair and impartial trial (investigation) by defendant' in violation of his contract; that his discharge was the result of the bias, prejudice and discrimination of Trainmaster Bishop and Operator Finley; and that in violation of plaintiff's contract the investigation of plaintiff was not the basis of the discipline administered, i. e., his discharge.

The defendant's answer denied plaintiff was wrongfully and unlawfully discharged; alleged plaintiff was discharged 'for failure to protect service at St. Louis, 4:00 P.M. 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 defendant's Uniform Code of Operating Rules' then in effect on the railroad; alleged plaintiff had a fair and impartial hearing as provided by Article 52 (set out in full) of the collective bargaining agreement, and was discharged for 'good and sufficient causes' as provided by Article 51 (set out in full) of said agreement; alleged plaintiff was suspended May 31, 1947, for violation of Rule 703, 717 and 803 (set out in full); attached as an exhibit a transcript of the hearing and investigation and alleged that as a result of the hearing and investigation plaintiff was dismissed and discharged in writing by defendant's Superintendent for 'failure to protect service at St. Louis, 4 P.M., May 30, 1947, and absenting yourself from usual stopping place without authority, in violation of Rules 703, 717 and 803.'

The basic facts, determinative of this appeal, upon the question of whether plaintiff's discharge was or was not wrongful are not in dispute. It appears from plaintiff's testimony that he worked out of St. Louis, 'I lived in St. Louis * * * and I stayed at the Y.M.C.A.'; that he worked on the freight extra board out of defendant's 23rd Street station in St. Louis; that on May 29, 1947 at 4:54 P.M. he ended his run on a work train from Kirkwood at the defendant's 23rd Street station, went upstairs to the operator and his name was thereupon 'marked up on the extra board at the bottom of the board'; that such board was 'to protect the service * * * see that the trains went out'; that he then 'resided at the (St. Louis) Y.M.C.A.', where he received his calls; that he then 'told the operator at 23rd Street I was going home to get some clean clothes and would be back the next evening on 14'; that he examined 'the status of the extra board * * * checked the crews * * * I didn't think I would be first out until the 31st of May. Q. You didn't actually ask to lay off; you are not claiming that? A. No, sir; I thought I had time to get back'; and he then boarded a train and went to Centertown, Missouri, 139 miles west of St. Louis. While out of St. Louis plaintiff missed a 'call' to go to work at 4:00 P.M. May 30, 1947.

Plaintiff further testified trainmen were 'called' two hours before time to report, but that from Centertown (if defendant had known where he was) he could not 'have gotten back to go to work * * * on two hours notice; * * *.

'Q. Isn't it a fact that when you left and went to Centertown, you just took a chance that you could get back and go to work before you were called? A. Yes, sir, I thought I could get back before I got called. * * *

'Q. Now the day that you left and went to Centertown, the 29th, you weren't registered at the Y.M.C.A., were you? A. No, sir. * * *

'Q. So far as the railroad was concerned at that time, that date, you had no place there in St. Louis where if you were subject to call, that he (the call operator) could have got in touch with you; is that right? A. No, sir, they couldn't.'

Plaintiff also introduced in evidence and read the jury a transcript of his own testimony at his hearing or investigation held pursuant to Article 52, before Trainmaster Bishop on June 5, 1947, bearing plaintiff's signature, in part, as follows:

'Q. State in your own words, Mr. Craig, why you were not available for service at St. Louis Mo. on May 30th, for Extra train West called for 4:00 PM? A. I come in off the work train May 29th, was nine times out and I thought I would have time to go home and get clean clothes. I took a list of the crews that were in town, also the vacancies on them, thought I would have plenty of time to come down on No. 14 Friday evening. I called 23rd Street from Jefferson City and he informed me that I has (had) missed a call for Extra West at 4:00 PM. He told me that I would have to be off 24 hours, so I called up Sunday and he informed me that I was pulled out of service for formal investigation.

'Q. On May 30th, were you registered with 23rd Street Yard Office indicating you would be available when needed at your usual stopping place? A. Yes, sir.

'Q. Did you secure permission to leave your usual stopping place? A. I told the operator down there that I was going home and he said he thought it would be alright.

'Q. What do you mean when you refer to home. Is that your usual stopping place at St. Louis? A. I refer to where I live, Centertown, Missouri.

'Q. What is the distance from Centertown to St. Louis? A. About 139 miles.

'Q. Rule 703 read. Account of the nature of your employment you are required to maintain residence at St. Louis in order to be available to protect the service. Is that correct? A. That is correct.

'Q. Rule 717 read. If you had proper authority to be absent then you would not have been marked on the brakeman's extra board as being available for service at 4:00 PM May 30th, would you? A. No, I would not.

'Q. Rule 803 read. Do you understand Mr. Craig, that in leaving St. Louis while you were marked up on the brakeman's board as being available for service is in violation of Rule 803? A. Yes, sir.

'Q. Do you understand that in leaving St. Louis, your usual stopping place, and not being in position to protect the service is also violation of Rule 803? A. Yes, sir.

'Q. Is there any reason why by applying to the proper authority you could not have been branted permission to be away for as long a period as necessary for you to attend to personal affairs? A. The reason I did not lay off, because I thought I would have enough time to come back before I missed a call.

No other witness testified at plaintiff's hearing. No other evidence was there adduced.

Respecting the allegation of his petition that he was 'not accorded a fair and impartial trial (hearing or investigation) by defendant on June 5, 1947, before the Trainmaster, plaintiff at the trial testified: 'Q. Now at the time of this hearing you had no complaint of the unfairness or prejudice against you of this hearing, did you? A. Not of the hearing, no sir.

'Q. And at this time you have no complaint of any unfairness at this hearing? A. I was just dissatisfied with the discipline.

'Q. You had a fair hearing though? A. Yes, sir.'

Respecting his previous violations of the Rules in missing calls plaintiff testified: 'I never missed no more than any of the rest of them. I never missed very many.' Plaintiff also testified that on one occasion Trainmaster Gordon had talked to him about 'missing calls', and gave him a talking to and put him back to work; and that on another occasion Trainmaster Bishop had talked to him 'about missing some calls and violating the rules.' Plaintiff knew the three rules in question here.

There was no evidence from which a jury could have inferred plaintiff's discharge resulted from the bias, prejudice or discrimination of any one. Nor was there any evidence from which it was inferable that defendant's operator (whose duty it was to call brakemen to come to work) realized or understood that plaintiff was going beyond the call of the operator, if plaintiff's turn should come to be called for duty.

Rules 703, 717 and 803, and Articles 51 and 52 of the collective bargaining agreement (or contract of employment), referred to in the pleadings, the evidence and the briefs, are set out in full in the Court of Appeals opinion, 240 S.W.2d loc. cit. 164 and 165, are incorporated herein by reference thereto, but are not here set out at length. It was agreed that Rules 703, 717 and 803 were part of the Uniform Code of Operating Rules and that plaintiff, as an employee of defendant, was under such rules and governed thereby; and, that Articles 51 and 52 were a part of plaintiff's working agreement. Rule 703 provided that brakemen were required to devote themselves to the railroad service, reside where required and obey promptly instructions from the proper authority. Rule 717 required that...