Johnson v. American Ry. Express Co.

• Decision Date: 01 December 1931
• Docket Number: 13108.
• Parties: JOHNSON v. AMERICAN RAILWAY EXPRESS CO.
• Court: South Carolina Supreme Court

161 S.E. 473

163 S.C. 191

JOHNSON v. AMERICAN RAILWAY EXPRESS CO.

No. 13108.

Supreme Court of South Carolina

December 1, 1931

Appeal from Common Pleas Circuit Court of Florence County; T. S Sease, Judge.

Action by I. M. Johnson against the American Railway Express Company. From an adverse judgment, plaintiff appeals.

Appellant's exceptions sustained, and cause remanded for a new trial.

Philip H. Arrowsmith, of Florence, for appellant.

Willcox & Hardee, of Florence, for respondent.

PER CURIAM.

Upon consideration of the petition of the appellant in this cause it is ordered that the opinion filed herein on April 1, 1931 be withdrawn; that the following opinion be substituted for the same; and that the petition for rehearing be dismissed.

This is an action by the plaintiff, formerly an employee as an express messenger, of the defendant company, for damages resulting as alleged, from its wrongful discharge. The ground of his complaint is that he was discharged without just cause or excuse, and in violation of the provisions of an agreement entered into between the company and the union of express messengers, of which the plaintiff was a member, guaranteeing to an employee, before his discharge, an investigation of the grounds of complaint against him. Issues being joined, the case was tried at the November, 1928, term of said court before his honor Judge T. S. Sease, and a jury. At the conclusion of the testimony offered on behalf of the plaintiff, the defendant made a motion for a nonsuit upon grounds hereinafter referred to, which motion his honor granted, and, after granting defendant's motion for a nonsuit, his honor directed a verdict for the plaintiff for nominal damages in the sum of $8 from all of which (according to the agreed statement contained in the transcript of record) this appeal is taken by the plaintiff.

From the testimony of the plaintiff, which for the purposes of this appeal is to be taken as true, the following facts appear:

The plaintiff had been in the employment of the defendant as an express messenger on trains since February, 1924, upon an indefinite term of service. On June 23, 1927, he was on his run from Florence to Washington; when the train arrived at Richmond, about 8:30 p. m., he was met by one McConnell, route agent of the defendant, taken off of his run and carried to a hotel, where he met two special agents, Smith and Hughes, and the superintendent, May, in a room of the hotel; after an interview lasting about two hours, the conference broke up without any definite communication to the plaintiff; he was furnished with transportation back to Florence where he was again met by McConnell who informed him that he would be notified later in the day the conclusion reached as to his case; in the evening he was called to the hotel by McConnell and told that the company requested his resignation; the plaintiff did not comply with the suggestion, and was told by McConnell to come down to the office the next day and he would have a voucher fixed up and pay him off; the plaintiff went; McConnell had a voucher fixed up for his time up to the time he reached Richmond, but not for the deadhead time from Richmond back to Florence. The ground of complaint against the plaintiff, which he learned after his discharge, was not reporting a messenger seen by him to be handling liquor, supposed to have been abstracted from a shipment, in violation of a stipulation admitted by the plaintiff to have been signed by him: "Q. Will you aid in ridding the service of employees whose honesty is in the least questionable? A. Yes, sir."

On June 28, 1927, the plaintiff wrote to McConnell, route agent, asking for a statement of the grounds of his suspension from service, to which he had no reply.

On June 29, 1927, the plaintiff wrote to the superintendent, May, asking for an investigation of the charges against him. No reply was received thereto until August 5, 1927, after the present action had been begun on July 26th, offering an investigation. The plaintiff was out of employment for six weeks, and thereafter has not earned more than $100 per month, about half of his wages as messenger.

Rule 29 of the agreement between the company and employees thereof represented by the American Federation of Express Workers, is as follows: "An employee who has been in the service for more than ninety days or whose application has been formally approved shall not be disciplined or dismissed without investigation, at which investigation he may be represented by an employee of his choice or one representative (as per rule 84) of an Organization of which he may be a member. He may, however, be held out of service pending such investigation. He shall have at least twenty-four hours advance notice of such investigation, which shall be held within seven days of the date when charged with the offense or held from service. A decision will be rendered within seven days after completion of investigation."

Rule 37 provides: "If the final decision decrees that charges against the employee were not sustained, the record shall be cleared of the charge; is suspended or dismissed, the employee shall be reinstated and paid for the time lost."

The defendant's motion for a nonsuit was based on the following grounds:

"1. There is no testimony to the effect that the plaintiff was employed for any specified period of time and the only reasonable inference from the testimony is that the contract was terminable at the will of either party and the plaintiff under such circumstances is not entitled to recover because there is no breach of contract which would give rise to an action for damages.

"2. All of the testimony shows that the plaintiff's term of employment was indefinite and the plaintiff cannot maintain an action in tort for a wrongful discharge from employment because such a discharge becomes the basis of an action in tort only when accompanied by a wrongful act which amounts to a trespass with actual or constructive force. A malicious notice disconnected with the infringement of a legal right, even if there were evidence in this case to disclose it, cannot be the subject of a civil action, and there is no testimony to the effect that any trespass was committed or force used in the discharge of the plaintiff.

"3. The working rules of the defendant formed no part of his contract of employment but are incidents thereof and even if there is testimony to the effect that plaintiff was not accorded a hearing provided for in said rules they constitute the sole and exclusive remedies available to the plaintiff, and in addition it appears from the testimony that the plaintiff had not exhausted his remedies under said rules in that he has made no appeal to the final authority of the defendant to whom he has the right to appeal.

"4. And further, because the record will show that he has not exhausted his remedies, because, after the suit was brought the defendant offered him the hearing asked for."

His honor, Judge Sease, made the following ruling on this motion:

"This argument has been very thorough on both sides. While I cannot commend the position taken by the defendant in requiring Johnson to spy on his fellow-employees, that is requiring an Anglo-Saxon to do something he don't want to do, especially in regard to having two quarts of liquor, and if there had been a definite employment and the evidence would be like it is from Johnson, I would certainly let that go to the jury, because, if it had been a definite employment, I don't think that defense a reason to discharge a man. But, under the law, this contract is not unilateral. It is binding on both parties. One has a right to terminate it at any time he sees fit and so does the other. If the testimony did show that they deprived him of a right to appeal or right to a full investigation, there is no damage shown as resulting from that deprivation of right to appeal and investigation. It is intimated by plaintiff himself, if they had allowed an investigation they would not have re-instated him, and I agree with him. It is what is known as damnum absque injuria--a damage without a remedy, or it is a wrong without damage, if anything like that is possible, with the basis of the Anglo-Saxon principle that wherever there is a wrong there is a remedy--that means a legal wrong. Wherever there is a legal wrong there is a remedy. There has been no legal wrong inflicted upon plaintiff by refusing him the privilege of an appeal or full investigation. I cannot see that there is any evidence of fraud--every breach of contract is a willful and intentional act. A man has a right to intentionally break a contract and take the consequences for the damage directly flowing from such breach of contract. As that distinguished Supreme Court Justice, Judge Hydrick, held in the case in which he corrected himself, it is a difference between an act with intent to commit a fraud and actual fraud. There is no testimony of actual fraud committed upon plaintiff so as to entitle him to recover punitive damages.

"If plaintiff desires, the Court will allow him to take judgment for the time between the time he was sent back and the twenty-four hours. He stated that they did not pay him, and the rules required that his employment did not terminate until twenty-four hours after that--or something like that. If the plaintiff does not take advantage of that, I have no objection.

"The motion for non-suit, under the law, will have to be granted. I cannot get around the Gantt Case, 125 S.C. 518, 118 S.E. 920. The Gantt Case is on all fours with this one."

Thereafter, immediately upon the granting of the nonsuit, the following occurred:

"Mr. Arrowsmith: We do not want to waive our position, but

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