Maddock v. Lewis

• Decision Date: 11 January 1965
• Docket Number: No. 1,No. 50569,IBTCWHA,No. 6,A,6,50569,1
• Citation: 386 S.W.2d 406
• Parties: 58 L.R.R.M. (BNA) 2201, 51 Lab.Cas. P 51,243 Kenneth J. MADDOCK, Appellant, v. Robert F. LEWIS, Louis E. Burger, Fred Helfrich, Rudolph Wolf, Edward Goedoeker, Nick Wild and Henry Tobias, Individually and as Officers of the Brewers and Maltsters, Local Unionffiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and as Representatives of the Class Consisting of Members of Brewers and Maltsters Local Union, and Anheuser-Busch, Inc., a Missouri Corporation, Respondents
• Court: Missouri Supreme Court

Page 406

386 S.W.2d 406

58 L.R.R.M. (BNA) 2201, 51 Lab.Cas. P 51,243

Kenneth J. MADDOCK, Appellant, v. Robert F. LEWIS, Louis E. Burger, Fred Helfrich, Rudolph Wolf, Edward Goedoeker, Nick Wild and Henry Tobias Individually and as Officers of the Brewers and Maltsters Local Union No. 6, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and as Representatives of the Class Consisting of Members of Brewers and Maltsters Local Union No. 6, IBTCWHA, and Anheuser-Busch, Inc., a Missouri Corporation, Respondents.

No. 50569.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1965.

Opinion Modified on Court's Own Motion Feb. 8, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 8, 1965.

Charles M. Tureen, Blumenfeld, Kalishman & Tureen, St. Louis, for appellant.

John S. Marsalek, Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent Anheuser-Busch, Inc.

Harry H. Craig, St. Louis, for defendants-respondents other than Anheuser-Busch, Inc., Wiley, Craig, Armbruster & Wilburn, St. Louis, of counsel.

HIGGINS, Commissioner.

Action to recover $574,380 actual and punitive damages for alleged wrongful discharge and breach of a collective bargaining agreement. The amount in controversy exceeds the sum of $15,000 and this court has jurisdiction. Art. V, Sec. 3, 1945 Missouri Constitution, V.A.M.S.; Sec. 477.040 V.A.M.S.

Appellant, Kenneth J. Maddock, was employed by respondent Anheuser-Busch, Inc., in June 1950, for work in a job classification of 'other men in the brewing department.' His employment was not continuous, and he was recalled from time to time until May 12, 1958, when he was dismissed.

Brewers and Maltsters Local Union No. 6, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, was the exclusive bargaining agent for employees in appellant's classification under a collective bargaining agreement between Local No. 6 and Anheuser-Busch, Inc. Appellant was not a member of Local No. 6, his application to become a member being consistently denied. Notwithstanding such lack of union membership, the agreement bound him and inured to his benefit.

Local No. 6 is a voluntary unincorporated labor organization and is a union as defined by Section 2(5) of the Labor Management Relations Act of 1947. The named respondents, Robert F. Lewis, et al., are sued individually and as officers of Local No. 6 constituting the executive board, and as representatives of the class consisting of members of Local No. 6. Among their duties is the investigation of grievances and the representation of employees in grievance procedures.

Anheuser-Busch is engaged in a business affecting interstate commerce within the meaning of the Labor Management Relations Act of 1947 and is subject to the provisions of that act.

Appellant was called from layoff to work by Anheuser-Busch May 12, 1958. He reported to work and was discharged almost immediately because, according to the service letter given appellant, 'all the other men employed in the lager cellars either ceased work or refused to start work and refused to return to work or start work if Mr. Maddock was assigned to work in this department with them.' On May 14, 1958, appellant mailed three letters to Local No. 6 advising of his grievance on account of his discharge and requesting his grievance be processed. Two of his letters were returned unopened and marked 'refused,' and the third was returned in an envelope bearing the return address of Local No. 6. Contact between Local No. 6 and appellant was limited to a telephone call initiated by appellant to respondent Lewis, Chief Officer of Local No. 6, in which appellant was advised that Lewis had investigated the matter and found that the discharge was justified.

On May 12, 1958, appellant filed unfair labor practice charges against Anheuser-Busch and Local No. 6 under the Labor Management Relations Act of 1947. Upon administrative investigation of these charges, the Labor Board refused to issue a complaint because of insufficient evidence, and appellant sought no review of this action.

Appellant's petition, filed June 2, 1960, and amended November 1, 1963, is in three counts. Appellant describes Count I as a class action against Local No. 6 and respondent officers individually for alleged breach of duty to fairly and honestly represent plaintiff in his grievance against Anheuser-Busch arising out of his discharge by Anheuser-Busch; and Count II as against Anheuser-Busch for alleged wrongful discharge contrary to the terms of the collective bargaining agreement. Count III is against all defendants alleging conspiracy to do the acts alleged in Counts I and II.

Answers denied the substantive allegations of the petition and set up affirmative defenses. On September 19, 1960, respondents other than Anheuser-Busch filed Motion for Summary Judgment supported by affidavit of respondent Robert F. Lewis, and on November 30, 1960, respondent Anheuser-Busch filed Motion for Summary Judgment supported by affidavits of William F. Guffey and Owen Rush. These motions suggested the absence of any genuine issue as to any material fact and that the movants were entitled to judgment as a matter of law. On February 1, 1961, appellant filed counteraffidavit in opposition to the motion of defendants other than Anheuser-Busch. The motions were submitted to the court on briefs and on the pleadings, affidavits, counteraffidavits and depositions on file. On October 9, 1963, the court filed a memorandum opinion in which, among other things, it was determined that there was no fact issue for a jury and the motions were sustained. The judgment was set aside on November 1, 1963, to permit plaintiff to file his amended petition, after which all matters were resubmitted. The trial court again sustained the Motions for Summary Judgment and entered the judgment in favor of all defendants from which this appeal is taken.

The substance of appellant's contentions on this appeal is that summary judgment was not appropriate because, in the language of the rule, defendants have not shown 'by unassailable proof to be entitled thereto as a matter of law.' Supreme Court Rule 74.04, V.A.M.R.

Under Rule 74.04(a) the party moving for summary judgment may file and serve supporting affidavits as respondents have done here. Under Rule 74.04(c) the adverse party (appellant here) may serve opposing affidavits and all affidavits are then considered along with the pleadings, depositions, and admissions on file, to determine if any genuine issue of fact remains. Reis v. Metropolitan St. Louis Sewer Dist., Mo., 373 S.W.2d 22, 27. A summary judgment is a determination as a matter of law that there is no issue of fact to be tried, Swink v. Swink, Mo., 367 S.W.2d 575, 578; and 'In no case shall a summary judgment be rendered on issue triable by jury * * * unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.' Rule 74.04(h).

We have recognized that Rule 74.04 is practically identical to Rule 56 of the Federal Rules of Civil Procedure, and we have found federal decisions construing Rule 56 to be persuasive in applying our Missouri Rule. Cooper v. Finke, Mo., 376 S.W.2d 225, 228. We have held: 'The appellate court as well as the trial court must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered.' Cooper v. Finke, supra, l. c. 228. 'As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure. Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213, 216 * * *. Although it is useful and beneficial in many situations, it cannot be substituted for a conventional trial of factual issues 'unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.'' Cooper v. Finke, supra, 1. c. 229[3, 4]. In Armco Steel Corp. v. Realty Investment Co., 8 Cir., 273 F.2d 483, the court said, l. c. 484[1-4]: 'A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts (citing cases). As we have heretofore explained, summary judgment is a harsh remedy and, '* * * should never be entered except where the defendant is entitled to its allowance beyond all doubt; only where the conceded facts show defendant's right with such clarity as to have no room for controversy; with all reasonable doubts touching the existence of a genuine issue as to a material fact resolved against the movant; giving the benefit of all reasonable inferences that may reasonably be drawn from the evidence to the party moved against. 'That one reasonably may surmise that the plaintiff is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them.'''

With these principles in mind, we proceed to determine if there is a genuine issue of fact in this case. Assuming that the petition is sufficient to withstand a motion to dismiss within the meaning of Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, Smith v. Evening News Ass'n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, Regan v. Ohio Barge Line, Inc., D.C., 227 F.Supp. 1013, and cases there and otherwise cited by appellant, we must nevertheless determine whether this case as presented to the trial court on the Motions for Summary Judgment was ripe for entry of summary judgment against appellant.

We direct our attention initially to the complaint of wrongful discharge against the employer, respondent Anheuser-Busch. The pertinent allegations as against Anheuser-Busch are, from...