Johnson v. Thompson
| Decision Date | 05 December 1950 |
| Docket Number | No. 6921,6921 |
| Citation | 241 Mo.App. 1008,236 S.W.2d 1 |
| Parties | JOHNSON v. THOMPSON. |
| Court | Missouri Court of Appeals |
Thomas J. Cole, St. Louis, E. A. Barbour, Jr., Springfield, for appellant.
Jo B. Gardner, Monett, for respondent.
This is an action by plaintiff, administratrix of the estate of her deceased husband, F. S. Johnson, for damages for the wrongful discharge of deceased, a conductor, from his employment.
The action was brought in the Circuit Court of Lawrence County, Missouri, July 20, 1949, by F. S. Johnson. Plaintiff died September 1, 1949, and the action was revived in the name of Mrs. F. S. Johnson, administratrix of plaintiff's estate, who filed an amended petition. A jury trial resulted in judgment for plaintiff for $7,000, and from this judgment defendant appealed.
The amended petition states there was a contract between the defendant and the Union, of which plaintiff's intestate was a member, entitled, 'Schedule of Wages, Conductors', which was a part of the contract of employment under which plaintiff's intestate worked for defendant at the time of his discharge from said employment June 12, 1948.
Said petition states that plaintiff's deceased husband reported for duty June 12, 1948, on an assignment as conductor on defendant's train No. 15, at Union Station, St. Louis, Missouri, and that he was relieved from his assignment by V. A. Gordon, Assistant Superintendent of defendant; that on June 29, 1948, a formal investigation was had on a charge that her deceased husband reported for duty while under the influence of intoxicants and unfit for service and that, thereafter, was discharged from his employment with defendant for alleged violation of Rules G-700-703.
The petition states that Article 54 of said 'Schedule of Wages, Conductors' provided that a conductor may be discharged from the service of the company for good and sufficient causes; that Article 55 of said 'Schedule of Wages, Conductors' provides that before a conductor is discharged for an alleged fault he shall have a fair and impartial trial.
The petition then pleads that plaintiff's husband was discharged from said employment without good and sufficient cause and without a fair and impartial trial; that her said husband did not violate the rules of said contract, and, if he did, such violation was not a sufficient cause for dismissal.
The petition asks for damages for the breach of the employment contract in the sum of $8,109.82.
The defendant's answer to plaintiff's amended petition admits the employment contract as stated in the petition and admits the provisions of Articles 54 and 55 of said 'Schedule of Wages, Conductors' are as pleaded in the petition.
The answer admits the discharge of plaintiff's deceased husband as pleaded but denies that the discharge was the result of prejudice, unlawful or without good or sufficient cause and denies that plaintiff's husband did not have a fair and impartial trial.
Section 7 of the answer is as follows:
'Alleges that on June 12th, 1948, and for a long time prior thereto, there was in force and effect General Rule G of the Uniform Code of Operation Rules of defendant, provided as follows:
'Also, under 'General Regulation', there were rules 700 and 703, which provide respectively as follows:
'Defendant alleges that plaintiff's husband was familiar with the foregoing rules, was subject thereto, and that on June 12th, 1948, plaintiff's husband was in violation of said rules when shortly prior to reporting for or performing the duties as conductor on one of defendant's trains at Union Station, St. Louis, Missouri, and was discharged therefor.'
The answer then pleads that when plaintiff's deceased husband was discharged and, prior to the institution of this suit, he did not exhaust his administrative remedies granted him under Railway Labor Act, 45 U.S.C.A. Sec. 151 et seq., and did not exhaust his rights of appeal to his superior officer as provided in the contract known as 'Conductor's Schedule', and for that reason had no right to maintain this action.
Plaintiff offered in evidence Articles 54 and 55 of the contract known as 'Schedule of Wages, Conductors', which are as follows:
'Article 55. Investigations.
Plaintiff offered in evidence a service certificate which showed that he had been working for defendant as brakeman from February 18, 1924, to August 24, 1924, and as conductor from August 24, 1924, to July 2, 1948. This certificate contains a clause, 'Cause of Leaving: Violation of Rules 'G' 700 and 703, on train No. 15, June 12, 1948.'
There was offered in evidence a letter from defendant-company contained in answer to interrogatories as follows:
'Eastern
'Kansas City Mo. July 2 48
'Mr. F. S. Johnson
'Conductor
'St. Louis, Mo.
'You are dismissed from the service for violation of Rules 'G' 700 and 703 on train No. 16 June 12, 1948.
'Dismissed
'C. F. Dougherty, Supt.
'Kansas City, Mo.
The evidence is undisputed that F. S. Johnson, deceased, was employed by the defendant as conductor when discharged; that the contract between the Union, of which deceased was a member, and defendant was a part of the contract of employment made with johnson.
It is undisputed that deceased Johnson reported for duty as conductor for assignment on train No. 15, which was set on track No. 9, in Union Station, St. Louis, Missouri, on June 12, 1948; that this train consisted of ten or eleven cars with destination at Kansas City and carried between 130 and 150 passengers. It is undisputed that V. A. Gordon, Assistant Superintendent of defendant-company, relieved Johnson from his duty as conductor on said train about 1:30 P. M., and took from him the train orders because Johnson had reported for duty under influence of intoxicants and unfit for service.
It is undisputed that a formal investigation was set for June 15th, but said date was postponed because of sickness of Johnson until June 29, 1948, when it was held before E. M. Bishop, Trainmaster for defendant-company.
Plaintiff's evidence shows that the charge investigated was for reporting for duty while under the influence of intoxicants and unfit for service; that there were present at the date of the investigation the deceased F. S. Johnson, who was represented by Conductor George R. Ogletree; that E. M. Bishop conducted the investigation and asked questions relating to the charge and that Mr. Ogletree asked questions in behalf of the deceased.
The evidence shows that there were no objections made by the deceased to the fairness of the investigation; that the company used two witnesses, both of them officers of the railroad, and Mr. Johnson testified in his own behalf. The testimony shows that a copy of this hearing was mailed to C. F. Dougherty, Superintendent of the railroad, whose office was in Kansas City, and that, in pursuance to this investigation, Dougherty sent a letter of final discharge to the deceased Johnson. This letter of discharge stated the reason was because of the deceased's violation of rules G-700-703.
Ogletree testified that he had known deceased Johnson for twenty-five years and had worked with him; that he knew Johnson had been injured while working on a freight train for defendant in August, 1947; that he had heard Johnson on many different occasions, for a period from about five months after the injury to the date of his discharge, complain of pains in his head and neck and of having dizzy spells and that he had observed Johnson's walking and noticed that he staggered...
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