Jenkins v. Thompson

• Decision Date: 08 September 1952
• Docket Number: No. 42878,No. 2,42878,2
• Citation: 251 S.W.2d 325
• Parties: JENKINS v. HOMPSON
• Court: Missouri Supreme Court

Page 325

251 S.W.2d 325

JENKINS v. HOMPSON.

No. 42878.

Supreme Court of Missouri, Division No. 2.

Sept. 8, 1952.

Jo B. Gardner, Monett, for appellant.

T. J. Cole, St. Louis, E. A. Barbour, Jr., Springfield, for respondent.

BOHLING, Commissioner.

W. D. Jenkins sued Guy A. Thompson, Trustee of the Missouri Pacific Railroad Company, a corporation, in the circuit court of Lawrence County, Missouri, for damages in two counts. Each count of plaintiff's petition was dismissed upon motion on the ground the Arkansas statutes of limitations barred the actions. Plaintiff appeals, contending the Missouri law applies and his action was timely filed. The amount involved vests appellate jurisdiction here.

Plaintiff's original petition was filed March 9, 1951. Defendant's motion for a more definite statement of plaintiff's claims was sustained. Thereafter plaintiff filed his 'First Amended Petition,' which, as stated, was dismissed upon defendant's motion.

In the first count plaintiff sought $55,600 damages for his alleged wrongful discharge from defendant's employ as railroad conductor. Plaintiff pleaded he had been an employee of defendant for twenty-eight years and, since May 1, 1924, in the capacity of a conductor under a written 'Schedule of Wages, Conductors' (attached to the petition as Exhibit I and incorporated therein by reference--section 509.130 RSMo 1949, V.A.M.S.) executed in the State of Missouri and signed by J. B. Corn, General Chairman of the Order of Railroad Conductors in Missouri, and by E. C. Wills, Assistant General Manager, and J. Cannon, Vice-President and General Manager, for defendant; that on March 12, 1946, at Newport, Arkansas, he was removed from the service of defendant as a conductor, and on March 20, 1946, plaintiff, who resided in Memphis, Tennessee, received notification of his discharge, which was effective March 19, 1946; that plaintiff's discharge violated his rights under Articles 54 and 55 of said Exhibit 1 and was the result of bias and prejudice and not for good and sufficient cause; and that plaintiff would have held his regular daily run as conductor on defendant's trains between Memphis, Tennessee, and Newport, Arkansas, or a better run, for as many years as he might physically qualify to perform such duties had he been permitted to continue in service.

In the second count plaintiff asked $10,000 actual and $15,000 punitive damages for the alleged malicious prosecution of plaintiff by defendant on said March 12, 1946, at Newport, Arkansas, on a charge of public drunkenness, of which plaintiff was acquitted on September 23, 1946, in the circuit court of Jackson County, Arkansas.

Plaintiff says the 'Schedule of Wages, Conductors,' is a Missouri contract and Missouri law governs its validity, interpretation and plaintiff's rights thereunder, ¹ and that plaintiff may sue for his wrongful discharge in breach thereof even though he was employed for an indefinite period. ² Plaintiff presents this contention, we understand, in view of holdings in Arkansas that individual employees may not maintain actions under contracts of this nature on the ground the agreement is unilateral and lacking in mutuality, the employee not binding himself to work for the railroad for any specific time and being at liberty to cease work at will. ³ Defendant raises no issue on this contention of plaintiff and we take the case as presented.

Defendant states that plaintiff's cause of action is based on an oral contract; and plaintiff proceeded in his brief and oral argument here on that theory, contending that the Missouri statute providing for a limitation of five years for actions upon contracts not in writing (section 516.120 RSMo 1949, V.A.M.S.) applies, and that since he was discharged on March 19, 1946, and filed suit on March 9, 1951, his action was commenced within the five year limitation of section 516.120. The 'Schedule of Wages, Conductors,' is not signed by plaintiff, and he is not named as a party thereto. It employs no one. Plaintiff's cause of action is not established by merely proving said 'Schedule of Wages, Conductors.' Plaintiff has to establish his contract of employment and prove that he became an employee under circumstances making the terms of said collective agreement applicable to him, all of which was to be established under parol evidence. A contract of employment is a prerequisite to a cause of action for wrongful discharge from employment. Craig v. Thompson, Mo.Sup., 244 S.W.2d 37, 41. Thus defendant's obligation does not arise fom the 'Schedule of Wages, Conductors'; but arises only upon proof of facts aliunde said written contract and plaintiff's claim rests upon an oral contract. This is the holding of courts in Missouri and Arkansas. Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 313, 314, 142 A.L.R. 666, and cases there cited; Annotation, 129 A.L.R. 615; Roberts v. Thompson, D.C.Ark., 107 F.Supp. 775, developed more fully hereinafter. See also Albrecht v. Indiana Harbor Belt R. Co., 7 Cir., 178 F.2d 577, 578; Kordewick v. Indiana Harbor Belt R. Co., 7 Cir., 157 F.2d 753, 754[3, 4]; Illinois Central R.Co. v. Moore, 5 Cir., 112 F.2d 959, 965[8, 10, 11], reversed on other grounds, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. Some cases reach a different result, Moore v. Illinois Central R. Co., 180 Miss. 276, 176 So. 593; Union Pacific R. Co. v. Olive, 9 Cir., 156 F.2d 737.

Defendant's position is that, regardless of the law of which state governs the interpretation of the contract and a determination whether a breach occurred, plaintiff's cause of action originates in the state where the breach occurs; and since the alleged breach of the contract occurred in Arkansas plaintiffs' cause of action originated in Arkansas and the applicable Arkansas statute of limitations controls under section 516.180 RSMo 1949, V.A.M.S.

Said section 516.180 provides: 'Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.'

The limitation period of the state of Arkansas for a cause of action based upon an oral contract is three years, viz.: 'The following actions shall be commenced * * * within three years after the cause of action shall accrue: First, all actions (of debt) founded upon any contract, obligation or liability, (not under seal [and not in writing],) * * *.' Sec. 37-206, Ark.Stat.1947; Ark.Rev.Stat., Ball & Roane, 1838, Ch. 91, Sec. 6.

Section 509.220 RSMo 1949, V.A.M.S., provides: '2. In every action or proceeding wherein the pleading states that the law of another state is relied upon, the courts of this state shall take judicial notice of the public statutes and judicial decisions of said state.'

Section 37-230, Ark.Stat.1947, provides: 'This act and all other acts of limitations now in force, shall apply to nonresidents, as well as residents of this State. [Act Dec. 14, 1844, Sec. 3, p. 24; C. & M. Dig., Sec. 6962; Pope's Dig., Sec. 8940.]' The Arkansas statutes here involved were enacted prior to 1844. See Ark. Rev.St., Ball & Roane, 1838, Ch. 91, Sec. 6; Rock Island Plow Co. v. Masterson, 96 Ark. 446, 132 S.W. 216; Hill v. Wade, 155 Ark. 490, 244 S.W. 743. Consult Kissane v. Brewer, 208 Mo.App. 244, 232 S.W. 1106, 1109.

Plaintiff argues that the Arkansas statutes of limitation are statutes of repose; that they bar the remedy and do not destroy the right of action, Steele v. Gann, 197 Ark. 480, 123 S.W.2d 520, 523, 120 A.L.R. 754; Harris v. Mosley, 195 Ark. 62, 111 S.W.2d 563, 565, and that the statutes of limitations of the forum prevail unless the foreign statute (of lesser duration) extinguishes the cause of action, contending for the Missouri limitation period of five years for suits on oral contracts. Section 516.120 RSMo 1949, V.A.M.S. Plaintiff's cases of McMerty v. Morrison, 1876, 62 Mo. 140, 146; Morgan v. Metropolitan St. R. Co., 1892, 51 Mo.App. 523, 526, 529, and Williams v. St. Louis & S. F. R. Co., 1894, 123 Mo. 573, 582, 27 S.W. 387, 389(1) are distinguishable in that each involved a cause of action arising prior to the enactment in 1899, Laws 1899, p. 300, Sec. 4280, R.S. 1899, of now section 516.180 RSMo 1949, V.A.M.S.

Farthing v. Sams, 296 Mo. 442, 247 S.W. 111, also cited by plaintiff, recognizes the common-law rule 'that the law of the forum applies where it affects the remedy, while the law of the place where the cause of action originated is applied where it affects the right', and that this general rule stands modified by now section 516.180 R.S.Mo 1949, V.A.M.S. 247 S.W. loc. cit. 112. The case also held that section 516.180 did not lengthen the limitation period prescribed by the Missouri statutes, but imposed an additional limitation limiting, without enlarging, the time for instituting suit, stating: 'That is, where the remedy is denied the suitor in the state where his cause of action arose, it is denied to him here. If it is not denied to him in the state where the cause arose, it may be denied to him here by our statute of limitations.' 247 S.W. loc. cit. 113.

Statutes of limitations do not operate extraterritorially; but the effect of section 516.180 is to provide a special statute of limitations applicable to suits in the Missouri courts upon a cause of action originating in a sister state and to make the statutes of limitations of that state the law of this state to the extent stated in Farthing v. Sams, supra. Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 458, 129 A.L.R. 829; Alropa Corp. v. Smith, 240 Mo.App. 376, 199 S.W.2d 866, 869.

Plaintiff's cases to the effect that statutes of limitations are procedural (affecting the remedy and not creating a condition to or extinguishing the cause of action) and embrace all actions falling within the terms of the statute at the time of the institution of the action (such as an amendment...