Hall v. St. Louis-San Francisco Railway Company

• Decision Date: 20 May 1930
• Docket Number: No. 4695.,4695.
• Citation: 28 S.W.2d 687
• Parties: S.F. HALL, PLAINTIFF AND APPELLANT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, DEFENDANT AND APPELLANT.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

28 S.W.2d 687

S.F. HALL, PLAINTIFF AND APPELLANT, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, DEFENDANT AND APPELLANT.^*

No. 4695.

Springfield Court of Appeals. Missouri.

May 20, 1930.

Appeal from the Circuit Court of Ripley County. — Hon. Chas. L. Ferguson, Judge.

AFFIRMED.

E.T. Miller and Ward & Reeves for defendant and appellant.

(1) In the absence of a contract of employment for a definite time, an employee may not sue for a wrongful discharge. Mulvey v. Anderson, 173 S.W. 738, 187 Mo. App. 430; Davis v. Ins. Co., 181 Mo. App. 353; Minter v. Dry Goods Co., 173 S.W. 4, 187 Mo. App. 16; Hutton v. Lombardi, 180 S.W. 566; Ogden v. Brewing Co., 248 S.W. 644; Brookfield v. College, 139 Mo. App. 339; Harrington v. Brockman, 107 Mo. App. 418; Finger v. Koch, 13 Mo. App. 310; Douglass v. Ins. Co., 297 S.W. 87. (2) The court erred in submitting to the jury punitive damages as prayed for in the second count and refusing the defendant's instructions contrary thereto. To authorize the giving of punitive damages it must be made to appear that the defendant acted with malice and wantonness, and such action must mingle in the controversy and form one of its chief ingredients. In other words, plaintiff must show an unlawful act coupled with an intentional wrong. Lewis v. Jannoupoulo, 70 Mo. App. 325, l.c. 329; Lampert v. Drug Co., 119 Mo. App. l.c. 700 and cases cited; Clark v. Fierley, 30 Mo. App. 335, l.c. 340; Kennedy v. Railroad, 36 Mo. 351, l.c. 365; Carmody v. Transit Co., 122 Mo. App. l.c. 349; Hoffman v. Gill, 102 Mo. App. l.c. 325; State ex rel. McClendon v. Jungling, 116 Mo. 162, l.c. 165; Berlin v. Thompson, 61 Mo. App. 241; McKeon v. Railroad, 42 Mo. 79.

Barton & Moberly for plaintiff and appellant.

(1) The court did not err in overruling the demurrer to the evidence on first count of the petition. From a reading of the entire petition it clearly appears that it is for discharge without cause and without investigation in violation of rule nine. The three years mentioned has reference to the triennial arrangement between employer and labor union now well nigh universal. This was the theory of both parties in the court below and they are bound by that position here. It is useless to cite cases laying down or illustrating this well known rule. 2 R.C.L. 79; 3 C.J. 725 and Missouri cases cited Note 84. An additional issue that the complaint is insufficient to support the verdict cannot be raised for the first time on appeal. Lynn v. Seby, L.R.A. 1916E, 788. The Statute of Frauds is an affirmative defense which is waived if not distinctly asserted though it may be interposed under a general denial; but where the evidence is admitted with objection, it cannot be raised by a demurrer at the close of the trial. Young & Branson v. Ledford, 99 Mo. App. 565, 568; Schmidt v. Rozier, 121 Mo. App. 306, 310 et seq.; Smith v. Hainline, 253 S.W. 1049, 1052; Widner v. Moran Bolt Co., 218 S.W. 351; 27 C.J. 374. (2) Cheek v. Prudential Ins. Co., which meandered through the courts of this State and finally reached the Supreme Court of the United States. It views the situation from many angles and settles the constitutional questions and many others, as to the second count. Cheek v. Prudential Ins. Co., 192 S.W. 387, L.R.A. 1918A, 166; Cheek v. Prudential Ins. Co., 209 S.W. 928; Cheek v. Prudential Ins. Co., 223 S.W. 754; Prudential Ins. Co. v. Cheek, 66 L. Ed. 1144, 27 A.L.R. 27. To these may be added: Soule v. St. Joseph R.L.H. & P. Co., 220 Mo. App. 497; Foster v. C.B. & Q., 14 S.W. (2d) 561. Counsel cites and quotes a large number of cases in an effort to have this court establish express malice as the only basis for punitive damages. This theory has long since been exploded in this State. Lampert v. Drug Co., 238 Mo. 409, 418 et seq.; Foster v. C.B. & Q. Co., 14 S.W. (2d) 561, 572; Reel v. Consolidated Ins. Co., 236 S.W. 43, 46.

COX, P.J.

Action by plaintiff against defendant for damages for an alleged wrongful discharge and refusal to give a service letter as required by section 9780, Revised Statutes 1919. The petition was in two counts. The first count alleged the employment of plaintiff by defendant as a first-class boiler maker and boiler inspector and a discharge in violation of the agreement between the defendant and the Frisco Association of Metal Crafts of which plaintiff was a member and asked both actual and punitive damages. The second count alleged the employment of plaintiff by defendant and a wrongful discharge and refusal to issue to plaintiff upon his demand a service letter as required by the statute and asked for both actual and punitive damages. The plaintiff recovered nominal damages on each count and $1500 punitive damages on the second count. Both parties appealed.

The plaintiff states that if the court holds against defendant on this appeal he will waive his appeal and consent for the judgment to be affirmed but if the case is to be reversed he wants the questions raised by him on his appeal determined. In view of that situation we shall examine the questions raised by defendant first.

The first point made by defendant applies to the first count of the petition only. It is contended that this count of the petition is based upon a hiring for a term of three years, a definite period, and he was allowed a recovery upon a violation of the agreement between defendant and the labor union of which plaintiff was a member. Defendant seeks to invoke the rule, which is well established, that a plaintiff cannot allege one cause of action and recover upon another. The first count of the petition after alleging his employment and that plaintiff entered upon his duties proceeds as follows: "Said employment to continue in force and effect for three years from and after July 1, 1925, and to continue thereafter for a like period of time at the same rate of pay subject only to a modification as to the rate of pay by either party giving a sixty-day notice."

As printed in the abstract of record the above ends a paragraph. This is followed by another paragraph as follows: "Plaintiff states that he is a member of the Frisco Association of Metal Crafts, a copy of the agreement between said Frisco Association of Metal Crafts and the St. Louis-San Francisco Railway Company is herewith attached to, filed with, and marked Exhibit A and made a part of this petition." This is followed by another paragraph as follows: "Plaintiff further states that under the agreement between the Frisco Association of Metal Crafts as aforesaid and the defendant that the defendant agreed with said Frisco Association of Metal Crafts, of which plaintiff is a member, that no employee who had been in the service of defendant for a period of thirty days would be discharged for any cause except drunkenness without first being given an investigation, in which investigation he might be represented by any employee be may choose, and if the foreman or officer holding the investigation decides that the employee should be discharged that the employee be given five days in which to appeal his case to the master mechanic, and if he should decide against the employee seven days to be allowed said employee for appeal to the next higher official and so on until the case has reached the Superintendent of Motive Power." The above allegations were followed by an allegation that he was discharged without an investigation and without just cause and for one other than drunkenness; that he was not given the right of appeal as granted by the agreement with the union.

There is a direct allegation in the petition that the employment was for a term of three years but there is also an allegation which shows that he was working under the agreement between defendant and the union of which plaintiff was a member. The petition in this count, in fact, pleads both the hiring for three years and a hiring under the agreement with the union. There was no motion filed asking that plaintiff be required to elect nor was this count attacked in any way except by a motion to strike out other portions of it which was sustained. Counsel for defendant insists that this count only alleges one employment and that was a direct hiring for a three year period and the allegations about the agreement between defendant and the union and his discharge in violation thereof was only to show a wrongful discharge and does not amount to an allegation of employment under the agreement with the union. We do not agree with that contention. Our conclusion is that it alleges employment in both ways and authorized the submission of the case as was done on the theory of an employment under the agreement with the union. Holding as we do on this question, eliminates the question of the Statute of Frauds raised by defendant on the theory that a three year contract must be in writing.

Defendant next seeks to invoke the rule that in the absence of a showing of employment for a definite period of time an employee could not recover for a wrongful discharge. Generally speaking that rule is well established as shown by the authorities cited by defendant, but we do not think it is so absolute and so technical as to nullify and make void an agreement not to discharge an employee without an investigation coupled with the right of appeal to a high official or servant of the same employer. We do not think the rule was intended to go that far. We can see no impropriety in any person or corporation who employs a large number of men who are members of a labor union making and being bound by an agreement made with the representatives of a labor union for and on behalf of the members of that union such as was entered into between defendant and the union of which this plaintiff was a member. We hold that the agreement referred to was binding and the plaintiff was entitled to the benefit of its provisions relative to a discharge by defendant.

We come now to the question of a wrongful discharge in...