Gomillia v. Missouri Pac. R. Co.

• Decision Date: 10 April 1961
• Docket Number: No. 1,No. 48042,48042,1
• Citation: 345 S.W.2d 202
• Parties: 47 L.R.R.M. (BNA) 2951, 42 Lab.Cas. P 16,876 Robert GOMILLIA, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 202

345 S.W.2d 202

47 L.R.R.M. (BNA) 2951, 42 Lab.Cas. P 16,876

Robert GOMILLIA, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent.

No. 48042.

Supreme Court of Missouri, Division No. 1.

April 10, 1961.

Wilson Gray, St. Louis, for plaintiff-appellant.

George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Plaintiff, a former employee of defendant, seeks in the first count of his petition to recover $10,000 actual damages and $20,000 punitive damages for his allegedly wrongful discharge in violation of the provisions of an employment agreement between defendant and the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, of which plaintiff was a member. In the second count he sought recovery of $5,000 as damages for the alleged refusal of defendant to furnish him, upon written request, a proper service letter following his dismissal. The second count was abandoned at trial. The jury returned a verdict for defendant on the first count. Plaintiff has appealed from the judgment rendered in accordance with the verdict.

From 1944 until March 27, 1955, plaintiff was employed by defendant as a platform laborer in its freight department at the City of St. Louis Terminal. During his employment he sustained personal injuries on four different occasions, the last time being in October, 1954, while moving a crated motor onto a two-wheeled truck. He did not thereafter perform any service for defendant. Under date of March 7, 1955, R. L. Witherspoon, an attorney in the City of St. Louis, with whom plaintiff's present attorney is associated, addressed a letter to defendant stating that he represented plaintiff in a claim for damages for the injuries sustained by him on October 4, 1954, for which services he, Witherspoon, was to receive 33 1/3 per cent of the proceeds of the claim, and that Witherspoon desired to discuss the claim with defendant.

At all of the times herein material, plaintiff was a member of Local 280 of said union, during which time there was a written agreement existing between the union and defendant prescribing the conditions of employment and dismissal of its members by defendant. In March, 1955, and, in fact, since October 28, 1953, defendant had been conducting an investigation into certain railroad passes requested by and issued to plaintiff during the years of 1953 and 1954, for the use of his allegedly dependent and allegedly not gainfully employed wife, Rosalie Gomillia. Defendant's rules permitted the issuance of passes over its line and connecting carriers to its employees and the dependent members of their families residing under the same roof with the applicants. Admittedly, defendant had signed the three hereinafter described applications, by virtue of which he had acquired passes for the use of his wife. Each application stated that his wife, Rosalie, was dependent upon him, was not gainfully employed and that she lived under the same roof with him.

As a result of the investigation of the circumstances under which plaintiff obtained these passes, Howard Jones, superintendent of defendant's St. Louis Terminal, issued a notice to plaintiff under date of March 21, 1955, at 816 N. 17th Street, St. Louis, reading as follows:

'Report to my office at 3001 Chouteau Avenue, St. Louis, Missouri, at 10:00 AM, Thursday, March 24th, 1955, for investigation to determine cause of and your responsibility for falsifying requests made by you for transportation, as follows:

'10/26/53--Request for pass in favor of Robert Gomillia and Dependent Wife Rosie Lee, 35, St. Louis Mo., to New Orleans, La., and return via Misouri Pacific Railroad.

'7/1/54--Request for pass im favor of Rosalie Gomillia, Wife, 36, and Dependent Son Robert, 13, St. Louis, Mo., to Leland, Mississippi, and return, via Illinois Central Railroad.

'9/20/54--Request for pass in favor of Rosie Gomillia, Wife, 36, St. Louis, Mo., to Toledo, Ohio, and return via New York Central Railroad.

'All three (3) requests for transportation made by you, as listed above, state that the persons for whom the passes were requested resided under the same roof with you and that they were entirely dependent upon you for support.'

The above notice was issued pursuant to Rule 18 of the aforesaid agreement with said union. That rule, entitled 'Discipline and Grievances', insofar as pertinent, reads:

'(a) An employe who has been in service more than 60 days * * * shall not be disciplined or dismissed without investigation. * * * The investigation shall be held within seven days of the date when charged with the offence or held from service. * * *

'At a reasonable time prior to the investigation he shall be advised of the precise charge in writing against him, and shall have a reasonable opportunity to secure the presence of necessary witnesses and representative.

'(b) An employe dissatisfied with the decision shall have a fair and impartial hearing before the next higher officer, provided written request is made to such officer, and copy furnished to Carrier representative whose decision is appealed, within 10 days. Hearing shall be held within 10 days after date of request and decision rendered within 10 days after hearing.

'(c) The procedure outlined in Section (b) shall govern in connection with appeals to each succeeding officer, except that when appeal is handled and made by the General Chairman, the time limits for appeal, hearing and decision shall be 60 days, instead of 10 days, for each. If further handling is desired following decision of the highest officer, the proceedings will be instituted and progressed as expeditiously as possible.

'(d) The right of appeal by employes or their representatives in the regular order of succession and in the manner prescribed up to and inclusive of the highest official designated by the railroad to whom appeal may be made, is hereby established.

'(e) An employe may be represented at investigations and hearings by one or more duly accredited representatives of his choice, who will be permitted to examine witnesses. If the employe does not desire one or more duly accredited representatives to represent him, the employe may act as representative and will be permitted to examine witnesses.'

Rule 41 of said agreement, as amended on August 24, 1954, in substance, defines the term 'duly accredited representative' to mean the 'regularly constituted Committee (of carriers and employees) and/or the officers' of said union of which the committee is a part; and provides: 'The duly accredited representatives shall have the right to participate in investigations, hearings and appeals growing out of these rules.h

Upon receipt of the notice, plaintiff asked his then attorney, Mr. Witherspoon, to attend the hearing with him but Mr. Witherspoon sent plaintiff's present attorney, Mr. Gray, in his stead. The hearing was conducted as scheduled before L. V. Hobbs, defendant's assistant superintendent. A transcript thereof (not introduced in evidence, but the contents of which were referred to during the trial) is before the court.

When the hearing began, Mr. Gray, upon being interrogated by the chairman as to whether he was either a member of the union or one of its accredited representatives, admitted that he was neither. He was thereupon excluded from the room. No complaint is leveled against that action Ralph C. Robertson, chairman of Local 280 of said union, concededly a 'duly accredited representative' of the union, was thereupon called by Mr. Jones and requested to represent plaintiff. Mr. Robertson assented and appeared forthwith and thereafter, without objection from plaintiff, participated in the hearing as plaintiff's duly accredited representative. A facsimile copy of the transcript of said hearing shows that the examination of the witnesses, to wit: plaintiff, his wife, Rosalie, and his sister-in-law, Callie Johnson, was conducted by Mr. Hobbs. As the questions were asked and the answers given, each witness signed each typewritten page of his or her statement as it was transcribed. At the conclusion of the hearing, both plaintiff and his duly accredited representative signed a joint statement reciting: (1) that after hearing the testimony of all of the witnesses present, neither plaintiff nor his accredited representative desired any other witnesses; (2) that each of them had been given the opportunity to ask all the questions he desired to ask of any witness; and (3) that neither plaintiff nor his representative wished to insert any exceptions in the record concerning the manner in which the hearing had been conducted.

The content of the transcript, composed of questions and answers, is much too long to set forth or even to digest in this opinion. Suffice to say that Rosalie Gomillia, upon interrogation by Mr. Hobbs, stated: (1) That she did not receive and use a pass requested and (admittedly) received by plaintiff on October 26, 1953, allegedly for the use of his dependent wife (Rosalie) from St. Louis to New Orleans and return; and that at that time she was in fact employed and self-sustaining, although she could not remember whether plaintiff, at that precise time, may have been contributing to her support. (2) That she did receive and use a pass requested by plaintiff for her and plaintiff's dependent son, Robert, (by a former wife) on July 1, 1954, from St. Louis to Leland, Mississippi, but that the son did not accompany her; and that she, at that time, was in fact gainfully employed and plaintiff was not contributing to her support. (3) That she never saw the pass requested by plaintiff for use of Rosalie Gomillia on September 28, 1954, to Toledo, Ohio; that she was not living with plaintiff on that date; that, on that date, she was in fact gainfully employed and plaintiff was not then giving her any money. Callie Johnson, sister-in-law of plaintiff, upon interrogation by Mr....