Elmore v. Atlantic Coast Line R. Co.

• Decision Date: 17 February 1926
• Docket Number: 90.
• Parties: ELMORE v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

131 S.E. 633

191 N.C. 182

ELMORE v. ATLANTIC COAST LINE R. CO.

No. 90.

Supreme Court of North Carolina

February 17, 1926

Appeal from Superior Court, Halifax County; Devin, Judge.

Action by J. G. Elmore against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Malicious motive, disconnected with infringement of legal right, is not actionable.

See also, 127 S.E. 710, 189 N.C. 658.

Plaintiff alleged that for 28 years he had been in the defendant's service, and on October 2, 1923, was a conductor in charge of certain of its passenger trains operating between Norfolk and Goldsboro and between Norfolk and Rocky Mount, that at the date named the defendant falsely charged him with having taken up tickets of passengers and with having procured them by collusion with the agent at Norfolk, to be resold as uncanceled tickets and with having divided with him the proceeds of the sales and that these charges were false, willful, and malicious. He alleged that, while he was in charge of a train running between Goldsboro and Norfolk, the defendant caused him to be discharged without warning or notice or an opportunity to be heard and in such way as to create the greatest possible notoriety, that he was 51 years old and unfitted for other work, and that he had been damaged in the sum of $200,000.

The defendant denied the material allegations of the complaint, and for a further defense alleged that the plaintiff had no personal contract of employment with the defendant, but only by virtue of his membership in an organization known as the Order of Railroad Conductors; that he had not been employed for any definite time; that he had been charged with an infraction of the defendant's rules, and, after his suspension, had requested and had been given a hearing in accordance with the rules of said order, first by the general superintendent, who permanently discharged him, and afterwards by the general manager, who approved and sustained the order of the superintendent; and that he then abandoned any other appeal. The defendant's motion to dismiss the action as in case of nonsuit was denied, and the defendant excepted.

The following verdict was returned:

"(1) Did the defendant wrongfully discharge the plaintiff as alleged in the complaint? Answer: Yes.

(2) If so, what compensatory damages, if any, is the plaintiff entitled to recover? Answer: $25,000.

(3) What punitive damages, if any, is the plaintiff entitled to recover? Answer: ______."

Judgment for the plaintiff. Exceptions and appeal by defendant.

Thomas W. Davis and V. E. Phelps, both of Wilmington, John H. Kerr, of Warrenton, and Spruill & Spruill, of Rocky Mount, for appellant.

Travis & Travis, of Halifax, Ashby Dunn, of Scotland Neck, and George C. Green, of Weldon, for appellee.

ADAMS J.

The substantial ground of the plaintiff's action is his discharge by the defendant under the false and malicious accusation that by collusion with the agent at Norfolk he had procured the resale of "unpunched tickets" and had misappropriated funds arising from the sale. That the suit is in tort, and that any contractual relation between the parties is incidental was clearly stated in this instruction to the jury:

"The plaintiff is not basing his action upon a breach of contract. He is not alleging damages for being discharged. He is claiming nothing against the defendant because he was separated and removed from his position of railroad conductor. * * * But he bases his action upon an alleged cause of action for damages for a wrong alleged to have been done him by the defendant in the manner and form in which his employment was terminated, that is, under false charges, and in such a way as to cause him great humiliation and mental suffering. That is the sole question presented to you under the first issue."

His honor gave the additional instruction that, as the contract had been made for an indefinite term, either party had a right to sever the relation at will--a familiar principle repeatedly approved. Edwards v. Railroad, 28 S.E. 137, 121 N.C. 490; Richardson v. Railroad, 35 S.E. 235, 126 N.C. 100; Currier v. Lumber Co., 64 S.E. 763, 150 N.C. 694, 134 Am. St. Rep. 955; Warden v. Hinds, 163 F. 201, 90 C. C. A. 449, 25 L. R. A. (N. S.) 529, and note; Lawson's Rights, Rem. & Pr. § 282. In the argument here it was suggested by the appellee that this instruction was incorrect because the rules provide that "a conductor will not be discharged or suspended without cause." Assuming, certainly without deciding, that the appellee's position is correct, a breach of the provision would be ex contractu, while the plaintiff's grievance, as stated in the complaint, is ex delicto. The dismissal was wrongful, it is contended, because the charges preferred were not true.

In treating the motion for nonsuit, we must keep in mind, not only the allegations in the complaint, but the plaintiff's recital of the circumstances under which his discharge was brought about. W. H. Newell, whose office was in Rocky Mount, was the defendant's general superintendent; F. W. Brown was its general manager, with headquarters at Wilmington. The plaintiff testified:

"At the time I was discharged, I was running between Goldsboro and Norfolk. I was coming from Goldsboro to Norfolk, and I got a message to report at Mr. Darrow's office at 9:30 a. m., and that I would be relieved of my train at Mocky Mount. This was on the 2d day of October, 1923. I reported at Mr. Darrow's office, and was told that Mr. Newell would handle the case. I then went to Mr. Newell's office, and he said, 'Here are some charges.' He first said, 'I can stand irregularities, I can stand drunkenness, but I cannot and will not tolerate dishonesty.' We were then in the general superintendent's office. He had reference to the batch of affidavits which he then began to read to me. I asked him who were these people who made these statements, and he answered that they were passengers on my train. I asked him to give me the names of the men who had made these affidavits, and he made no answer to me. He asked me if these were true statements, and I told him that he knew that they were not true. * * * He gave me to understand that I was fired and I have been since then. * * * The charges he read against me were that tickets had been turned in by other conductors which were sold specifically for my train; these tickets, they claimed, were bought by people leaving Norfolk and surrendered to me, and in several instances these same tickets were sold again and turned in by other conductors with their punch marks and their reports. I refer to the charges in the affidavits; these charges were that tickets had been bought for my train, and that they were turned in later, some on my train and some on others. He accounted for the fact that some of these tickets had been taken back and resold by saying that I had taken them back to Agent Starke, and he had resold them. * * * I was taken off the train at Rocky Mount that day, and had to wear my uniform to my home in Norfolk. * * * I had no extra clothes with me. The fact that I had to go home in my uniform as a passenger on the train I was supposed to be conductor on naturally attracted the attention of the passengers and the public, and I was asked, not only by passengers, but by other conductors what I was doing riding in my uniform. Everybody wanted to know, and of course I had to tell them. * * * It was very humiliating to be continually asked these questions. I was very humiliated and hurt in every respect."

The conversation between the plaintiff and the superintendent took place in the latter's office; no one else was present; no other heard what was said. Afterwards the plaintiff called for an investigation under the rules of the company, and, in his own words, "Mr. Newell still held out that I was fired," and the former decision was not changed. Another hearing was had before the general manager in Wilmington, and the first decision was again approved. No other appeal was prosecuted; and, in explanation of his suit, the plaintiff testified, "The one reason I am suing is that I had to travel back home in my uniform, and the other is that I was wrongfully discharged."

The plaintiff's narration contains a fair statement of the theory upon which the action was prosecuted, and proposes the vital question whether the complaint and the evidence have laid an adequate foundation for a suit in tort.

Actions ex delicto form an individual branch of the law. They have been classified fundamentally as breaches of duty by wrongful means, as fraud; culpable accident, as negligence, malice; illegal acts, etc. Bigelow on Torts (8th Ed.) 35; Jaggard on Torts, § 141 et seq. They are divided by Pollock into three groups: (1) Personal wrongs which affect (a) the safety and freedom of the person; (b) personal relations in the family; (c) reputation; and (d) those which affect one's estate generally, as slander of title or malicious prosecution. (2) Wrongs to possession and property. (3) Wrongs to person, estate, and property, such, for example, as nuisance, or negligence. Pollock on Torts (12th Ed.) 6. It is apparent that the present suit cannot be placed in either of the last two groups; we must therefore determine whether it falls within the first.

A tort is an act or omission giving rise, in virtue of the common-law jurisdiction of the court, to a civil remedy which is not an action of contract. Pol. (1st Ed.) 4. Jaggard says that this definition, while a negative one, seems to be least unsuccessful and unsatisfactory. "It is evident," he remarks, ...