Johnson v. Thompson

• Decision Date: 13 October 1952
• Docket Number: No. 42879,No. 2,42879,2
• Citation: Johnson v. Thompson, 251 S.W.2d 645 (Mo. 1952)
• Parties: JOHNSON v. THOMPSON
• Court: Missouri Supreme Court

Page 645

251 S.W.2d 645

JOHNSON v. THOMPSON.

No. 42879.

Supreme Court of Missouri, Division No. 2.

Oct. 13, 1952.

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

Jo B. Gardner, Monett, for respondent.

BARRETT, Commissioner.

In this action for damages for breach of a railroad union contract in discharging F. S. Johnson, a conductor, without good and sufficient cause the plaintiff has recovered a judgment of $8,109.82 against the trustee of the Missouri Pacific Railway Company. Mr. Johnson died on September 1, 1949, unexpectedly, during the pendency of his action and the cause was continued by his wife as the administratrix of his estate.

The specific grounds of Mr. Johnson's discharge, as alleged in his petition, were for violation of 'Rules G-700-703' on June 12, 1948, while reporting for duty as a conductor on one of the appellant's passenger trains. Rules 700 and 703 are rather general rules of conduct requiring employees to be alert at all times and to 'devote themselves exclusively to the service.' Among other things 'Constant presence of mind to insure safety to themselves and others, is the primary duty of all employees' and they 'are prohibited from using their time while off duty in a manner that may unfit them for the safe, prompt and efficient performance of their respective duties for the railroad.' Rule G is as follows: 'The use of intoxicants or narcotics is prohibited.' The railroad's evidence was that when Mr. Johnson reported for duty as a conductor on June 12, 1948, and after he had entered upon the performance of his duties, he was drunk. The trainmaster and the assistant superintendent of the division testified that Mr. Johnson was unsteady when he walked, staggered and weaved, that he talked unnaturally for him, that there was a strong odor of whiskey upon his breath and that he was intoxicated. It was for this reason that he was relieved and, after investigation, discharged from the service for violation of Rules G, 700 and 703.

Preliminary to the essential question presented respondent's counsel argue, as is the fact, that discipline, in general is necessarily administered under Articles 54 and 55 of the contract. Article 54 provides that a conductor 'may be discharged from the service of the Company for good and sufficient causes.' Because this language is followed by the sentence 'These causes shall include intemperance, incompetency, habitual neglect of duty, gross violation of rules or orders, dishonesty or insubordination' the respondent invokes the maxim, 'the express mention of one thing implies the exclusion of another,' (Broom's Legal Maxims, p. 504) and contends that the 'defendant was limited to the specific grounds in dismissing the deceased.' Being so limited, as we understand the contention of counsel, it is said that the railroad is limited in its rights under the contract to discharge an employee, here the conductor, to proof of intemperance and that violation of Rule G, 'use of intoxicants * * * is prohibited,' is not a ground for discharge but only for suspension for a reasonable length of time. We do not so interpret the contract and the auxiliary rule of construction, 'The expression of one thing is the exclusion of another' (Black, Law Dictionary), if applicable, does not bring about the construction claimed. The maxim has to do with ascertaining 'the intention of the party as discoverable upon the face of the instrument' (Broom's Legal Maxims, p. 506) and is sometimes stated 'The express declaration puts to an end anything which silence might signify.' Ballentine, Law Dictionary; 17 C.J.S., Contracts, Sec. 312, p. 730. Rule G is likewise a plain, unequivocal, positive statement, 'the use of intoxicants * * * is prohibited,' expressly mentioned in the contract, and is not impliedly or otherwise excluded as a ground of discharge if it meets the general requirements of Article 54, and here Rules 700 and 703. There was no claim or evidence of intemperance and, as the court of appeals ruled on the former appeal, intemperance was not an issue in the case and the respondent was not entitled to a directed verdict for this reason. Johnson v. Thompson, Mo.App. 236 S.W.2d 1, 11.

As to the second ground of wrongful discharge alleged in the petition, 'without a fair and impartial trial' (Article 55), before the railroad officials, there is no evidence of probative force to support the charge and the trial court did not err in refusing to charge the jury upon this subject. Mr. Johnson was represented at the investigation by the general chairman of his railroad union. In the investigation there was no objection and no evidence that he was not being given a fair hearing. The official who conducted the investigation, another trainmaster, had the right to recommend punishment but he had no power to discharge Mr. Johnson. When Mr. Johnson failed to appear after the investigation had been set within the required five days this official displayed some pique, but that does not prove that Mr. Johnson did not have a fair and impartial hearing. Upon the basis of the investigation and recommendation Mr. Johnson was discharged by the superintendent and he did not appeal or ask for a hearing before other officials of the railroad as he had a right to do under the contract. In these circumstances there was no evidence tending to show that he did not have a fair and impartial hearing and the trial court did not err in refusing to submit this issue to the jury. Craig v. Thompson, Mo.Sup., 244 S.W.2d 37. The meritorious question is whether he was discharged for 'good and sufficient causes' (Article 54) under the contract.

Upon this essentially meritorious question, Mr. Johnson's discharge for violation of Rules, G, 700 and 703, the appellant contends that there is no evidence of probative force that Mr. Johnson was wrongfully discharged and therefore the appellant was entitled to a directed verdict. As we have said, the railroad's claim and evidence was that Mr. Johnson reported for duty and entered upon the performance of his duties while drunk and such conduct, if found, was certainly a 'gross violation of rules' (Article 54) and ground for discharge under the contract. The respondent's claim was that her husband was not intoxicated on June 12th and therefore the railroad wrongfully discharged him. In addition to her claim that he was not intoxicated she also claimed that he had had neither the opportunity nor the time in which to become intoxicated on the occasion of his reporting for duty as a conductor on June 12, 1948. Mr. Johnson was sixty-one years of age when he was discharged and had been employed by the railroad since 1924. About ten months prior to his discharge he had received a slight injury to his head for which he was hospitalized and observed for three days. Mrs. Johnson and the general chairman, who had known and worked with him for years, testified that after the injury he was often dizzy and sometimes walked unsteadily and that he often took empirin and aspirin to relieve his pain. Leaving time for his passenger train on June 12th was 1:52 and under the rules he was to have reported for duty at 1:22, thirty minutes prior to leaving time. The trainmaster first saw him on the train at 12:45 and according to the trainmaster Mr. Johnson was then drunk. Mrs. Johnson said that her husband was not feeling well that morning when he got up, did not eat breakfast, and she gave him aspirin or empirin. For lunch he ate a sandwich and about twelve o'clock left his home in Kennett Place for the St. Louis Union Depot. Mrs. Johnson said that there was no whiskey, wine, beer or other intoxicants in...