Donahoo v. Thompson, 22058

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Donahoo v. Thompson, 270 S.W.2d 104 (Mo. App. 1954)
• Decision Date: 07 June 1954
• Docket Number: No. 22058,22058
• Parties: 34 L.R.R.M. (BNA) 2459, 26 Lab.Cas. P 68,485 DONAHOO v. THOMPSON.

Page 104

270 S.W.2d 104

34 L.R.R.M. (BNA) 2459, 26 Lab.Cas. P 68,485

DONAHOO v. THOMPSON.

No. 22058.

Kansas City Court of Appeals, Missouri.

June 7, 1954.

Harold L. Harvey, St. Louis, Johnson, Lucas & Bush, Hilary A. Bush, Fred A. Murdock, Kansas City, for appellant.

Jo B. Gardner, Monett, for respondent.

BOUR, Commissioner.

C. S. Donahoo brought suit against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, a corporation, to recover damages for his alleged wrongful discharge from defendant's employ. Verdict and judgment were for plaintiff in the sum of $7,200, and defendant has appealed.

In paragraphs one and two of the petition it was alleged in substance that at all times mentioned in the petition plaintiff and defendant were engaged in interstate commerce and were subject to the Railway Labor Act, 45 U.S.C.A. Sec. 151 et seq.; that on October 26, 1952, and for many years prior thereto, plaintiff was employed as a conductor by defendant; that during the time of plaintiff's employment there was in force a written contract between defendant and the Order of Railway Conductors entitled 'Schedule of Wages, Conductors', which contract was executed in Missouri; and that said written contract was a part of plaintiff's contract of employment with defendant. Plaintiff then set out, in part, Articles 54 and 55 of the written contract. Plaintiff alleged in paragraph three of the petition that on October 26, 1952, he was discharged by defendant's superintendent, C. L. Christy, for alleged violations of certain operating rules of defendant; that 'said discharge was wrongful and unlawful because, under said Articles 54 and 55, he was not discharged for good and sufficient causes and had not violated said rules of defendant, and because plaintiff was not given a fair and impartial trial (hearing), and for the further reason that defendant's agents and officials were prejudiced against plaintiff and caused his discharge to be brought about without having any cause therefor * * *'; and that as a result of said wrongful discharge plaintiff was damaged in the amount of $67,500.

In the answer, defendant admitted the allegations in paragraphs one and two of the petition; admitted that plaintiff was discharged by defendant on October 26, 1952; and denied every other allegation in the petition. Further answering, defendant pleaded that the petition failed to state a claim on which relief could be granted; and 'that plaintiff failed and refused to avail himself of all of his remedies made and provided under the terms of his employment contract with defendant, and particularly that he failed and refused to appeal to the General Manager of defendant as provided in Article 56 (set out in full) of said contract (entitled 'Schedule of Wages, Conductors'), and that by reason thereof this suit is premature.'

At the trial the parties stipulated as follows: '1. That the employment of plaintiff by defendant, as mentioned in plaintiff's petition, was by virtue of and pursuant to the terms of a certain employment contract entitled 'Schedule of Wages, Conductors'. 2. That said employment contract was duly executed for and on behalf of plaintiff by J. B. Corn, General Chairman of the Order of Railway Conductors, and for and on behalf of defendant by E. C. Wills, Assistant General Manager, at the City of St. Louis, State of Missouri, and that said employment contract has been continually in force and effect since May 1, 1928 and is now in full force and effect. 3. That the following articles and provisions are contained in and are a part of said employment contract, to-wit:

"Article 54.--Suspension and Discharge--Any conductor 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 Company 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 55.--Investigations--Before a conductor 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 conductor of his choice, selected from the Company'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 retained more than five 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 conductor 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. * * *

"Article 56.--Appeal--Any employee included under the provisions of this agreement who is dissatisfied with the decision of any officer of the Company shall have the right to appeal therefrom, in writing, to the General Manager, after having first submitted his case for the decision of the General Superintendent and to the Assistant General Manager."

On October 17 or 18, 1952, plaintiff received a letter signed by E. J. Drimmel, defendant's trainmaster at Van Buren, Arkansas. The letter reads as follows: 'Arrange to report to office of undersigned, Van Buren, Arkansas, 9:00 a.m. Tuesday, October 21, 1952, for formal investigation in connection with setting out RI-64153 at Neodesha, Oklahoma, train 161, about 6:15 p.m., October 15th, account hot box, which car was later found on fire, resulting in total loss of contents and considerable damage to car. Violation of Rules 99-J, 107, 111A and other rules applicable. Bring representative if desired.'

Plaintiff attended the hearing or investigation, which was held at Van Buren before Trainmaster Drimmel, on October 21, 1952. He was represented by C. J. Payne, local chairman of the Order of Railway Conductors (hereinafter referred to as the O.R.C.). Fifteen witnesses testified at the hearing, including plaintiff. Plaintiff and his representative were permitted to examine the witnesses. A transcript of the evidence adduced at the hearing was sent to C. L. Christy, superintendent of defendant's central division, whose office was in Coffeyville, Kansas. Plaintiff's representative was furnished with a copy of the transcript and plaintiff received a copy of his own testimony. Plaintiff was discharged by Christy on October 26, 1952. He was notified by letter, dated October 26, 1952, and signed by Christy, that his dismissal was for 'violation of Operating Rules 99-C, 99-J, 107 paragraphs 1, 2 and 4, and 111A,' on October 15, 1952, at Neodesha, Oklahoma.

This suit was instituted on January 26, 1953. It appears from plaintiff's evidence at the trial in the circuit court that upon receipt of the letter of dismissal the plaintiff, in accordance with union procedure, request C. J. Payne, local chairman of the O.R.C., to present plaintiff's claim for reinstatement (with pay for all time lost) to Christy. Payne presented the claim as requested and Christy notified Payne by letter dated November 25, 1952, that he refused 'to reinstate Conductor C. S. Donahoo to all former rights as conductor and pay for all time lost while dismissed from service.' Plaintiff then authorized G. R. Ogletree, general chairman of the O.R.C. to submit his claim to R. Johnson, defendant's assistant manager. On December 11, 1952, Ogletree wrote a letter to Johnson in which he stated: 'We are appealing from Supt. Christy's decision dated November 25, 1952, File R-305, addressed to C. J. Payne, * * *.' He requested Johnson to reinstate plaintiff 'with seniority unimpaired and with pay for all lost time, as this is not a leniency case.' In his reply, dated December 18, 1952 and addressed to Ogletree, Johnson stated: 'When Conductor Donahoo calls on Superintendent Christy and admits his responsibility and shows an attitude of willingness to perform his duties in a manner in which they should be peformed, Superintendent Christy...