Marshall v. Charleston & W.C. Ry. Co.

• Decision Date: 20 January 1931
• Docket Number: 13056.
• Citation: 162 S.E. 348,164 S.C. 283
• Parties: MARSHALL v. CHARLESTON & W. C. RY. CO. STUART v. SAME.
• Court: South Carolina Supreme Court

162 S.E. 348

164 S.C. 283

MARSHALL v. CHARLESTON & W. C. RY. CO.

STUART v. SAME.

No. 13056.

Supreme Court of South Carolina

January 20, 1931

On Rehearing December 17, 1931.

Appeal from Common Pleas Circuit Court of Hampton County; W. H Grimball, Judge.

Actions by G. Walter Marshall and by Henry R. Stuart against the Charleston & Western Carolina Railway Company, tried together by agreement. From judgments in favor of defendant, upon directed verdict, plaintiffs appeal.

Reversed and remanded for new trial.

The complaint, which the court has directed to be reported, is as follows:

Complaint.

That over thirty-eight years ago this plaintiff entered the employ of one of the predecessors of the defendant and continued in the employ of the defendant and its predecessors from that date up to and until the 29th day of December, 1927.

That at the time of the employment of this plaintiff by the said predecessors of the defendant, it was agreed, contracted and understood by and between this plaintiff and the defendant and its predecessors, which agreement contract and understanding was existent at the time hereinafter mentioned and was assumed and ratified from time to time by the defendant and its executives, that the plaintiff was entering upon his life work, was to give all of his time, energy and effort to the railroad business, and that as he acquired seniority of employment and work, and as he acquired knowledge of the business of railroading, and as he became proficient in that business, he would be advanced from time to time in his wages and salary, and in his seniority rights. It was then understood by and between the parties that as time passed this plaintiff would be given employ, advanced in rating, and increased in salary, as long as he complied with all of the rules and regulations of the defendant and its predecessors, and as long as he was guilty of no offense which would justify his discharge. At the time of the employment of this plaintiff, this plaintiff and the employer understood definitely that this plaintiff would be continued in the employ of the company and its successors for the period of his ability to render efficient service to the employer and its successors, all of which was well known to and approved of, by the employers and the defendant herein.

That as of the effective date, February 1, 1927, the defendant through A. W. Anderson, Vice President and General Manager, as one party, and the Order of Railway Conductors through S. F. Tedars, General Chairman, J. B. Black and W. W. Martin, a committee acting therefor, as the other party, entered into an agreement whereby, in conformity with the oral and written contract, agreement and understanding of the employment of this plaintiff by the defendant, it was among other things provided:

"Discipline: Conductors will not be disciplined without an investigation, which will be made by the proper officer within five days, if practicable, and in their presence; they will have the privilege of bringing to the investigation to assist them a conductor of their own selection, provided he is employed and in good standing on the division. If found blameless they will be paid for time lost; if discharged, they will be furnished with a letter showing cause of dismissal, term of service and capacity in which employed. If disciplined, they will be furnished with a written notice of same; and they will be given a copy of the proceedings of the investigation, if requested."

The plaintiff for the period of the last -- years has been, through his rights and under his agreement, contract, and understanding with the defendant, a conductor of the defendant, and has complied with every rule, regulation and requirement of the defendant company; and has received an average salary of two hundred twenty-five ($225.00) dollars per month. That the plaintiff has now reached the age of fifty-seven years, having up to this time given his entire life work so far as his efficient services is concerned, to the defendant company and its predecessors; that the plaintiff knows no other work and is skilled in no calling, business or profession other than the railroad business, the same being well known to the defendant and its executives. That the defendant has always known, and now well knows, that no other railway company would in any event employ this plaintiff present age, especially in view of the fact that the plaintiff has been discharged from the services of the defendant. That on the 29th day of December, 1927, the defendant through its executives and officers, willfully, maliciously, fraudulently, recklessly, negligently, and with a total and complete disregard of the contracts, agreements and understandings by and between the plaintiff and the defendant, and by and between the Order of Railway Conductors on behalf of this plaintiff and others in like circumstances, and the defendant, and in utter disregard of the rights of the plaintiff, disregarded and dismissed plaintiff from the services of the defendant without a hearing, without notice, without cause or excuse, without having the privilege of bringing to the investigation, if any investigation was had, to assist him, a conductor of his own selection, and without being given a copy of the proceedings of the investigation, although the same was requested.

That on the said date he was dismissed from the services for the alleged reason "for permitting his negro porter to collect tickets and cash fares on his train." That such alleged cause of dismissal was not a just cause for plaintiff's dismissal or discharge and has perpetrated the great wrong herein complained of by his plaintiff of the defendant, for the reason that the said collecting of tickets and fares by the colored porter operating on defendant's said train did not constitute any breach of the rules and regulations of the defendant company, and for the additional reason that the said practice had been in vogue on trains of the defendant for the past fifteen years and such actions and conduct on the part of this plaintiff had been ratified and confirmed repeatedly by executives and officers of the defendant company, and this plaintiff had not been notified of any contrary rule or regulation of this defendant prohibiting the said conduct on this plaintiff's part.

That this plaintiff has now reached the age of fifty-seven years, and that this plaintiff knows no other occupation or business except that of railroading, all of which facts were at the time of the said discharge, and have for years past, been well known to the defendant and its executives and officers, and that his entire life's work and ability to earn a living has been by the fraudulent, malicious and willful discharge of him by the defendant wrecked and entirely destroyed, and that this plaintiff has been deprived of all opportunity of earning a livelihood for himself and his family.

That the period over which reasonably proficient service could be rendered by this plaintiff unto the defendant in the capacity of conductor, according to the laws of the State of South Carolina, according to the American Insurance Table of Mortality, and according to reason and what has reasonably taken place, is a period of 10.05 years, or more.

That by reason of all of the aforesaid willful, malicious, fraudulent, reckless, careless and negligent acts of the defendant, its duly authorized officers and executives, this plaintiff has been damaged in the sum of one hundred thousand ($100,000.00) dollars.

Following are the exceptions which the court has directed reported:

Joint Exceptions.

1. That his honor erred in directing the verdict in favor of the defendant upon the ground that the plaintiff had failed to prove any contract binding upon both parties; the error being:

(a) That the plaintiff had proven a contract binding upon both parties, to the extent required by law of such contracts.

(b) That of such contracts as that sued upon in this case, the law does not require mutuality to the extent of giving the same rights or remedies to both parties, but merely requires mutuality to the extent that there shall be sufficient consideration for the obligations assumed under the contract.

2. That his honor erred in directing the verdict in favor of the defendant upon the first ground of defendant's motion for a directed verdict, which is:

"That there is no testimony tending to establish the alleged contract as set out in the complaint; and that there is no testimony tending to establish any binding legal enforceable contract of employment."

(a) In that there was ample testimony to establish the alleged contracts, in that the weight of the evidence shows:

"That the respondent would employ the appellants according to their seniority rights in their special line of railroading, so long as the respondent continued in the railroad business and had that kind of work for appellants to do, limited by seniority rights of other such employees, and so long as appellants were able and willing to perform such services in a satisfactory manner, gaged by the rules and regulations of the respondent, in consideration of appellants giving up all their opportunities of business and training, specializing in one of respondent's departments, agreeing to and remaining in such service throughout that period of their lives during which they might have secured employment with other railroads, all at specified rates of pay, subject to change by agreement between the railroad and its employees as a whole and without actual consent of appellants, which rates of pay were recognized as being inadequate consideration for the work done and to be done and said obligations of appellants under said contracts, and

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