Joslin v. C., M. & St. P. Ry. Co.

• Decision Date: 03 March 1928
• Docket Number: No. 26341.,26341.
• Citation: 3 S.W.2d 352
• Court: Missouri Supreme Court
• Parties: J.N. JOSLIN v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY ET AL., Appellants.

3 S.W.2d 352

J.N. JOSLIN v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY ET AL., Appellants.

No. 26341.

Supreme Court of Missouri, Division No. 1.

March 3, 1928.

Appeal from Sullivan Circuit Court. — Hon. J.E. Montgomery, Judge.

REVERSED.

Morrison, Nugent, Wylder & Berger for appellants.

(1) There was an entire failure of proof as to the cause of action stated. Weber v. Strobel, 225 S.W. 925; Loewenberg v. Devoigne, 145 Mo. App. 710; State ex rel. v. Dreyer, 183 Mo. App. 496; Holke v. Herman, 87 Mo. App. 125; Sharpe v. Johnston, 76 Mo. 660; 1 R.C.L. 319; O'Brien v. Western U. Tel. Co., 62 Wash. 598; Baycroft v. Tayntor, 68 Vt. 219. (a) The plaintiff was not discharged on account of the alleged charges. (b) Plaintiff's discharge was due to his own actions. (2) Moore's decision is binding upon plaintiff and precludes recovery. Weber v. Strobel, 225 S.W. 925; Mooney v. Kennett, 19 Mo. 552; 38 C.J. 438; Stewart v. Sonneborn, 98 U.S. 187; 39 C.J. 73 and note 73; Rickman v. White, 266 S.W. 997; Cochran v. Bartle, 91 Mo. 636; Allen v. Hickman, 156 Mo. 49; Williams v. Perkins, 83 Mo. 379. (3) The Milwaukee Railroad cannot be held for any act of Anderson, because the verdict was in his favor. McGinnis v. Railroad, 200 Mo. 347. (4) There is no evidence as to what statement was made by Stewart to the M.K. & T. Railroad Company. (5) Plaintiff did not prove and, therefore, is not entitled to any damages. In any event, the verdict was excessive as, from any viewpoint, the recovery could only be nominal damages, and if plaintiff was entitled to the time lost between September 26th and December 10th, he could only have recovered five hundred dollars actual damages. Punitive damages inflicted were likewise excessive. State ex rel. v. Ellison, 268 Mo. 225; Cook v. Globe Printing Co., 227 Mo. 471; Hunter v. K.C. Railways Co., 213 Mo. App. 233.

Fyke, Hume & Hall and E.M. Harber for respondent.

(1) The appellants' abstract does not comply with Rule 13 of this court, because the index refers to seventeen exhibits offered in evidence by appellant, but does not specifically identify such exhibits. (2) Appellants' brief contains no assignment of errors and appellants' "points," except perhaps Points 8 and 10, are so indefinite that they do not comply with Rule 15. (3) The law is well settled that one who wrongfully and maliciously causes the discharge of an employee by his employer is liable in damages. (a) The evidence is without conflict that at the instigation of Stewart upon false charges the respondent lost his employment as engineer for the M.K. & T. in the Kansas City yards. Cooley on Torts, 587; Huskie v. Griffin, 75 N.H. 345; London & Guaranty Co. v. Horn, 206 Ill. 493; Stewart Land Co. v. Perkins, 290 Mo. 194; Jones v. Leslie, 61 Wash. 107; Chipley v. Atkinson, 23 Fla. 206; Carnes v. Stock Yards Co., 205 N.W. 630, 206 N.W. 396; Lopes v. Connelly, 210 Mass. 487; Suarey v. McFall Bros., 87 S.W. 744; Tuttle v. Buck, 131 Am. St. 446; Piper v. Mfg. Co., 253 S.W. 437; Cheek v. Ins. Co., 192 S.W. 392; Cotton v. Cooper, 160 S.W. 597. (b) That one can use his property in any legal way he may "choose" regardless of his motives or damage to his neighbor is not now, if ever, recognized as the law, but expressly the opposite is now declared by substantially all the courts of this country. Cases supra; Beardsley v. Kilmer, 236 N.Y. 80; Dunshee v. Standard Oil Co., 152 Iowa, 624. (3) The burden of proving justification was upon appellants, "since the defendant is called upon to justify, to show reasonable cause for the interference with his neighbor's rights, it seems clearly to follow that if his only reason is a malicious wish to injure the plaintiff it has no justification." Huskie v. Griffin, and other cases, supra. (4) The decision of Moore, Anderson and Stewart is not binding upon respondents. No rule, contract or agreement of any kind was introduced in evidence giving or tending to give Moore's or their decision any such effect. Before respondent could be deprived of his legal right to seek redress in the courts it must be made to appear that by some legal contract, rule or agreement he had bound himself to abstain from seeking redress in court. DeClue v. Mo. Pac. Ry. Co., 264 S.W. 994; McMahon v. Maccabees, 151 Mo. 543; Mo. Constitution, sec. 10, art. 2. Respondent's right to work as an engineer is a property right. (5) The evidence shows that Stewart immediately after the occurrence complained of having received serious injury which was false, and within fifteen minutes Stewart called up Waddell, general yard master of the M.K. & T. and explained to him or his assistant what he claimed had happened, and thereupon respondent was discharged. (6) The pretense that respondent was discharged for insubordination or for discourtesies to Moore is a mere subterfuge. There is no such issue raised by the answer. Moreover, respondent had been discharged as a matter of fact before any alleged act of insubordination, if any occurred. Appellants cannot shield themselves by any such subterfuge. The false and malicious charge made by Stewart was the proximate cause of respondent's discharge. "The law abhors subterfuge. It lays aside the covering and looks to the actual facts beneath." Door Co. v. Fuelle, 215 Mo. 453. (7) The damages are not excessive. Respondent was earning $200 per month. Thirteen months elapsed between the date of his discharge and the date of his trial. He was therefore entitled to $2600 actual damages. Respondent was not obligated to accept other employment. There is no allegation in the answer that respondent did or could have earned anything in any other like employment. Van Winkle v. Satterfield, 56 Ark. 617; John Lallie v. Cantwell, 40 Mo. App. 44. If the action of appellants was malicious (and the jury so found) the question of exemplary damages was for the jury. Sec. 1913, R.S. 1919; Moore v. Railroad, 186 S.W. 1039; Allaire Co. v. Cole, 187 S.W. 818; Morgan Spectacles Co. v. Denizet, 193 S.W. 941; Black v. Emory, 275 S.W. 51; Murphy v. Ins. Co., 285 S.W. 774; Tuttle v. Kennedy, 272 S.W. 123; State ex rel. v. University of Physicians, 294 S.W. 1014; Moyer v. Railroad, 198 S.W. 842; Lother v. Railroad, 261 S.W. 704; Moran v. Railroad, 232 S.W. 1114; Middleton v. Ins. Co., 167 Mo. App. 591.

SEDDON, C.

This is an action wherein plaintiff, a locomotive engineer, seeks to recover compensatory and punitive damages because of certain alleged false, malicious and wrongful charges claimed to have been made by defendants to plaintiff's employer, the Missouri, Kansas & Texas Railway Company, which charges plaintiff alleges caused, and resulted in, his discharge and dismissal from the service and employment of his said employer. The defendants herein are the Chicago. Milwaukee & St. Paul Railway Company, a corporation, and J.P. Stewart and J.F. Anderson, who are, respectively, the general yardmaster and the superintendent of the corporate defendant at Kansas City, Missouri.

The petition, as originally filed, was in two counts, but, on the trial of the action, plaintiff voluntarily dismissed the second count of the petition and the action was submitted upon the first count alone. The first count of the petition alleges the employment of plaintiff by the Missouri, Kansas & Texas Railway Company as a locomotive engineer, and that, in the course of his duties as such engineer, it was required of him, and was necessary, that he run and operate the locomotive engine in his charge over and along the tracks of defendant Chicago, Milwaukee & St. Paul Railway Company, and that plaintiff had the right to pass over and along said tracks; and that defendant Stewart was the yardmaster, and defendant Anderson was the superintendent, of the defendant railway company. The gravamen of plaintiff's cause of action is thus alleged in the first count of the petition:

"That on or about September 26, 1923, the said defendants wrongfully and wickedly intending to injure plaintiff and to cause him to be discharged by his said employer, without cause, reason or justification falsely, wrongfully and maliciously notified plaintiff's employer that plaintiff as such engineer had wrongfully blown off the engine of which he was engineer in yards at Kansas City, Missouri, causing great injury to defendant Stewart's automobile there being, and had at said time wrongfully assaulted and beat, or permitted his fireman to so wrongfully assault and beat, said Stewart, demanding the discharge of plaintiff, and threatened said Missouri, Kansas & Texas Railway Company, plaintiff's employer, as aforesaid, that unless it did at once discharge plaintiff from its service, the right then and theretofore enjoyed by said Missouri, Kansas & Texas Railway Company, its predecessors and all other railroads operating in Kansas City, Missouri, of moving its engines and cars over the tracks of the defendant in Kansas City, Missouri, would be denied and prevented, which said right was essential and necessary to the end that said Missouri, Kansas & Texas Railway Company, plaintiff's employer, could do or carry on its business as public carrier, by reason of which said false statements, wrongful, unlawful and malicious threats, acts and conduct of the defendants, and not for any good or sufficient reason, plaintiff was at the instigation of defendants discharged and prohibited by his employer from again operating an engine or cars in Kansas City, Missouri; that but for the wrongful, unlawful and malicious acts of defendants plaintiff would not have been discharged, but would have continued in the service of his employer, in whose service, by reason of his long and faithful service, he had earned and was entitled to certain seniority rights and privileges as an employee of his employer, which rights and privileges were of great value, and which, by reason of the wrongful and malicious acts of the defendants in so causing his discharge, plaintiff has lost.

"Plaintiff says...