Mash v. Missouri Pac. R. Co.

• Decision Date: 14 November 1960
• Docket Number: No. 47678,No. 2,47678,2
• Citation: Mash v. Missouri Pac. R. Co., 341 S.W.2d 822 (Mo. 1960)
• Parties: 47 L.R.R.M. (BNA) 2102, 41 Lab.Cas. P 16,623 Patrick J. MASH, Appellant, v. MISSOURI PACIFIC RAILROAD CO., a Corporation, Respondent
• Court: Missouri Supreme Court

Page 822

341 S.W.2d 822

47 L.R.R.M. (BNA) 2102, 41 Lab.Cas. P 16,623

Patrick J. MASH, Appellant, v. MISSOURI PACIFIC RAILROAD CO., a Corporation, Respondent.

No. 47678.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 9, 1961.

Jo B. Gardner, Monett, for appellant.

George W. Holmes, Mark M. Hennelly, Allen D. Churchill, St. Louis, for respondent.

LEEDY, Presiding Judge.

Patrick J. Mash appeals from a judgment in favor of defendant upon the verdict of the jury in his action against Missouri Pacific Railroad Company for damages arising out of his discharge from defendant's service as a locomotive fireman and engineer allegedly in violation of the terms of collective bargaining agreements between the railroad and the two labor organizations of which plaintiff was a member, the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen and Enginemen. The petition prayed damages of $85,112.10, and as that sum represents the 'amount in dispute' for the purpose of fixing appellate jurisdiction, the appeal is properly here.

As the relevant provisions of the two contracts are identical, reference to them will be in the singular, as if constituting one contract. Those provisions are as follows: 'No fireman [or engineer, as the case may be] or helper shall be discharged * * * without just or sufficient cause. When * * * charged with an offense which would warrant his suspension or discharge, if sustained, no suspension or discharge shall be inflicted (except suspension pending investigation) without a thorough investigation within five days before the official having jurisdiction, at which time he may have a fireman [or engineer, as the case may be] or helper of his choice assist him in the investigation, who will be permitted to examine witnesses. He or his representative shall be furnished with a copy of the evidence brought out at such investigation, which will be the basis for discipline administered.' There are also provisions giving to an employee who is not satisfied with the result of an investigation 'the right to appeal his case through the General Chairman to the Assistant General Manager for the district involved, and, if necessary, to the Chief Personnel Officer.' There was also in force and effect general rule 'G' of the Uniform Code of Operating Rules which provided that 'the use of intoxicants or narcotics is prohibited.'

The incident giving rise to this action was plaintiff's alleged use of intoxicants while on duty as an engineer on the night of March 1, 1955. An investigation of the charge was timely held on March 5 before the appropriate official of the railroad at which hearing Mash was present in person and by certain brotherhood officers, his representatives. On March 6 he was discharged on the basis of his violation of Rule G on the occasion in question, notified thereof and furnished with a 'copy of the investigation.' Plaintiff took successive appeals to the Assistant General Manager and to the Chief Personnel Officer, both without avail, and thereafter instituted this action. (Defendant asserts the action was not timely filed, and is barred on that account, a point we do not pass on because we prefer to rest our decision on the merits, under which the same result is reached insofar as defendant is concerned.)

Plaintiff's theory of recovery is that his discharge was wrongful and in violation of the labor contract in that the railroad did not have just or sufficient cause to terminate his employment. That issue was submitted to the jury and found in favor of defendant. To overturn the judgment entered on that verdict, plaintiff on this appeal has sought to assign error in the denial of his motion for a directed verdict in his favor, in the admission of certain evidence, and in the giving and refusal of instructions.

On the night of March 1, 1955, plaintiff was the engineer on defendant's train 72, a northbound through freight, operating between Poplar Bluff, Missouri, and Dupo, Illinois, a distance of 179 miles, on what is known as the Illinois division. It left Poplar Bluff about 7:15 p. m. At Illmo, some 60 miles to the north, one of the two trainmasters on the division in question (Martin) conducted a surprise test with respect to train 72 by causing the tower operator at the 'interlock plant' to display a red signal, which signal would normally change to green, but it did not because the tower operator had been instructed by the trainmaster that the signal be not changed until so directed by him. The train stopped as signaled; the head brakeman went forward toward the tower to investigate; the trainmaster and a special agent (Tinkler) then boarded the engine. In the cab they found the fireman in the engineer's seat and in charge of that part of the train. They found the engineer, Mash, in the middle (or head brakeman's) seat. According to the fireman, he had taken over the operation of the engine, at Mash's request, at Dexter Junction, some 22 miles out of Poplar Bluff, at the begining of the first of Mash's two absences from the front of the engine to go to the toilet. By his own estimates, Mash was gone for as long as 12 minutes each time.

The trainmaster testified that Mash 'looked flush, very surprised to see us there * * * his face was red--ruddy'; that his face appeared different than it had on a previous occasion when the witness had been in very close proximity to plaintiff when interrogating him in the course of conducting a drawbar investigation; that he spoke haltingly, and his appearance was not neat. Mash denied he had been drinking and upon request agreed to, and did, blow his breath into the faces of the trainmaster and the special agent, both of whom testified they smelled alcohol on his breath. He was then asked if he would show what was in his grip, and he said no, he wouldn't do that, that was his personal property. Mash was then left alone in the cab while others searched for liquor in all of the diesel units, but none was found. The trainmaster and the special agent left the engine and went back to confer with the conductor to make the necessary arrangements to move the train. When they returned to the engine, plaintiff allowed them to inspect his grip, but no intoxicants were found therein. After stating to Mash that he had intoxicants on his breath and 'wasn't in condition,' the trainmaster relieved him of his duties, and then asked if he wanted to see a doctor, but plaintiff declined. The trainmaster then assisted Mash from the engine and over to the nearby road crossing, crossed two tracks, saw to it that he was safely at the Illmo depot, and arranged transportation home for him via the Cotton Belt, defendant's operation at that point being limited to freight. The trainmaster asked Mash how long the fireman had been operating the engine, and Mash 'said the fireman had been operating the engine from Delta' (a point some 30 miles north of Dexter Junction, the latter being the place fixed by Mash on the present trial as the place at which the fireman took over).

Plaintiff testified that shortly after his arrival in Poplar Bluff (on the southbound trip) about 1:20 a. m., on March 1, and before going to bed, he did take two drinks of whiskey of about an ounce each (this being some 20 hours before the surprise test was conducted), but he vigorously denied he had thereafter, and before the Illmo incident, consumed any liquor whatever. Although in a position to have detected it, neither the fireman nor the head brakeman smelled any liquor on plaintiff's breath, nor did the trainmaster at Poplar Bluff or the general foreman, both of whom made an inspection of the engine equipment (and were in the cab) just before 72's departure from Poplar Bluff. On this night plaintiff was smoking a pipe, the odor of which was described by the fireman as being 'rather strong.' The conductor, fireman and head brakeman testified they saw nothing unusual or out of the way in plaintiff's actions or speech on the night in question, nor in the way in which the train was operated to Illmo. (The fireman and brakeman were charged with a violation of a rule in failing to report Mash's alleged violation of Rule G.) This sufficiently indicates the factual situation for present purposes. If relevant, other facts will be stated in connection with the points to which they relate.

The first contention is that to have entitled the defendant to go to the jury on the issue of just and sufficient cause for discharging plaintiff under Rule G, it was incumbent on it to show that plaintiff was under the influence of intoxicants and (in consequence thereof) unfit for service. Such seems to have been the holding of the case upon which plaintiff relies, that of the Springfield Court of Appeals in Johnson v. Thompson, 241 Mo.App. 1008, 1025, 236 S.W.2d 1, 11, which case involved not only a violation of the present defendant's Rule G, but also two others. But in Craig v. Thompson, Mo., 244 S.W.2d 37 (a case comparable with the one at bar as regards the state of the pleadings), this court, en banc, expressly overruled that portion of the Johnson case, supra, which held that the burden of proof was upon the defendant to show that the discharge was for good and sufficient cause. It was there said (loc. cit. 42): 'Defendant may content himself and offer no proof at all. If he desires defendant may make proof that the discharge was in fact justified. But the burden of proving the very thing that gives rise to his cause of action, the heart of his cause of action, i. e., that he discharge was wrongful remains always upon the plaintiff.' Seizing upon this language, 'This record does not compel the decision that any infraction whatever of Rule G is a 'good and sufficient cause' * * * in and of itself for discharging a conductor' (Johnson v. Thompson, Mo., 251 S.W.2d 645, 649--second appeal), the plaintiff contends...