McCrory v. Kurn

• Decision Date: 28 December 1936
• Docket Number: No. 5755.,5755.
• Parties: McCRORY v. KURN et al.
• Court: Missouri Court of Appeals

101 S.W.2d 114

McCRORY v. KURN et al.

No. 5755.

Springfield Court of Appeals. Missouri.

December 28, 1936.

Rehearing Denied February 4, 1937.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

"Not to be published in State Reports."

Suit by Earl J. McCrory against J. M. Kurn and John G. Lonsdale, trustees, and St. Louis-San Francisco Railway Company. From a judgment for defendants, the plaintiff appeals.

Reversed and remanded, with directions.

F. W. Barrett and Joe N. Brown, both of Springfield, for appellant.

J. W. Jamison, of St. Louis, and Mann, Mann & Miller, of Springfield, for respondents.

SMITH, Judge.

This suit was filed December 24, 1934, returnable to the January, 1935, term of the Greene county circuit court, and service was had upon all the defendants. Several amendments to the petition were made, until the fourth amended petition was filed, and separate answer of J. M. Kurn and John G. Lonsdale, trustees, was filed, as well as separate answer of St. Louis-San Francisco Railroad Company. The plaintiff filed a reply thereto, and on the 14th day of February, 1936, evidence on behalf of the plaintiff was introduced. At the close thereof defendants filed a demurrer to the evidence under each and all the counts of plaintiff's petition. These demurrers were sustained by the court and a judgment was rendered for the defendants. Upon the sustaining of the demurrers, the plaintiff took an involuntary nonsuit with leave to move to set the same aside. Thereafter at the same term of court the plaintiff filed his motion to set aside the involuntary nonsuit, which was by the court overruled, and at the same term of court, on the 22d day of February, 1936, an appeal to this court was taken by the plaintiff, and he was given time to prepare and file his bill of exceptions.

The case is before us on one assignment of error stated by the plaintiff as follows:

"That the court erred in sustaining defendants' demurrers to the plaintiff's evidence at the close thereof as offered by the defendants because under the law and the evidence the plaintiff did make a submissible case for the jury.

"This for the reason that:

"(a) The `Yardmen's Schedule Contract' must be construed in its entirety; and Paragraph `d' of Article 10 and Paragraph `g' of Article 15 must be construed together with Article 17, of said contract; and that under said contract and said provisions, the plaintiff could not be discharged without just and sufficient cause and without a hearing as provided by Article 17 of said contract and that the evidence shows he was so discharged and wrongfully denied his right of seniority under said contract.

"(b) That the evidence shows that the defendants willfully and maliciously failed and refused to give the plaintiff a service letter as required under section 4588, Revised Statutes of Missouri [Mo.St.Ann. § 4588, p. 2026] for which such failure and refusal an action lies for compensatory and punitive damages."

As may be seen from this assignment of error, there are two points relied upon by the plaintiff. The first of these is that the plaintiff could not be discharged from service without a just and sufficient cause and without a hearing as provided by article 17 of the contract referred to in the above assignment. The "Yardmen's Schedule Contract" is especially referred to in the first count of plaintiff's petition, so we shall first consider that count of the petition with the facts in connection therewith as shown by the abstract of the evidence before us.

We quote in full, caption omitted, the first count of plaintiff's petition, as follows:

"Comes now the plaintiff and states that the St. Louis-San Francisco Railway Company is and was at all times hereinafter mentioned a duly organized and existing corporation under and by virtue of the laws of the State of Missouri and engaged in the business of railway transportation of passengers and freight for hire. The plaintiff states that defendant, J. M. Kurn, was appointed Receiver of the St. Louis-San Francisco Railway Company under an order of the District Court of the United States for the Eastern District of Missouri, on or about the 1st day of November, 1932, and that on or about the 5th day of November, 1932, defendant, John G. Lonsdale, was appointed Co-Receiver of said Railway by said court, and that on or about the 26th day of September, 1933, the said J. M. Kurn and John G. Lonsdale were appointed trustees of the said St. Louis-San Francisco Railway Company and as such Receivers and later such Trustees, they have continuously operated said Railway Company at all times hereinafter mentioned since said dates aforesaid.

"The plaintiff says that by a general order of the District Court of the United States for Eastern District of Missouri, that actions are permitted to be filed and prosecuted against said Trustees of said Railway Company in the courts of this state.

"The plaintiff says that the said Railway Company, on or about the 1st day of November, 1919, by its duly authorized agents entered into a written contract with the duly authorized agents of the Brotherhood of Railway Trainmen and that said Brotherhood was acting as the duly authorized agent for the yardmen employees of said Railway Company and plaintiff says that said contract was denominated `Yardmen's Schedule', and that said agreement was revised by the parties thereto on or about April 8th, 1924, and that by said Yardmen's Schedule it was agreed by and between the parties thereto, that said Yardmen's Schedule was to cover and be the established contract of employment of the yardmen employees and said Railway Company on the lines of the aforesaid Railway Company, of all yardmen employees who continued in or entered the service of said Railway Company on or after the 1st day of April, 1924, the said contract being retroactive until April 1st, 1924 and that the same was to continue to be the established contract between the parties thereto until changed by agreement by giving thirty days' notice. A copy of said Yardmen's Schedule contract is hereto attached and marked `Exhibit A.' The plaintiff says that the said agreement continued to be the existing contract between the parties thereto at all times hereinafter stated, except that it was modified by agreement of the parties thereto from time to time as to per diem rates of pay until on or about February 1st, 1932, at which time it was finally modified so as to provide for a per diem rate of five and 96/100 dollars ($5.96) for helpers and that thereafter at all times herein mentioned said Yardmen's Schedule contract was in full force and effect. The plaintiff says that J. M. Kurn and John G. Lonsdale, the defendants, as receivers and later as trustees of said Railway Company on and after their appointment as such, continued to operate the said Railway Company under the said Yardmen's Schedule as the contract of employment between themselves and the yardmen employees on said railway lines and continued to recognize, hold out and consent to the said Yardmen's Schedule as the existing contract of employment between the yardmen employees on said railway lines and themselves as receivers and later trustees.

"The plaintiff states that on or about March 8, 1928, at Springfield, Missouri, that he entered the employment of said Railway Company as a switchman, which occupation placed plaintiff under aforesaid Yardmen's Schedule and which occupation is classified in said Yardmen's Schedule as `Helper,' and that he entered said employment by agreement with said Railway Company in consideration of the terms and conditions of said Yardmen's Schedule and in consideration of seniority rights as provided, among other things in Paragraph (d) of Article 10, as follows:

"`Yardmen laid off on account of reduction in force will be returned to service when forces are increased in order of their seniority, provided they return to actual service within (30) days from the date their services are required.'

"And as provided, among other things, in Article 17, Paragraph (b) of said Yardmen's Schedule:

"`Yardmen will not be discharged, suspended or given demerit marks, without just and sufficient cause. Before inflicting punishment in form of dismissal, suspension or assessing demerit marks, the proper official will hold investigation. They may be present at the investigation, together with a disinterested employee of their choice. All decisions will be rendered within (5) days after investigation is held. In case of dismissal, suspension or demerit marks, if any yardman thinks sentence unjust, he shall have the right within (10) days to refer his case by written statement to his superintendent. Within (10) days of receipt of this notice the case shall have a thorough investigation by a proper officer of the company, at which investigation he may be present if he so desires and also be represented by any disinterested employee of his choice. In case he is dissatisfied with result of investigation he shall have the right of appeal to general officers. In case punishment in the form of dismissal or suspension is inflicted and subsequently found to be unjust, he shall be reinstated and paid at regular rates for all time lost.'

"And as provided, among other things, in Paragraph (c) of Article 15:

"`Seniority rights of yardmen will date from the time they enter actual service in yard or terminal.'

"And as provided, among other things, in Paragraph (d) of Article 22 of said Yardmen's Schedule:

"`Yardmen on leave of absence or out of service while permanent vacancies occur or new runs have been created will be permitted to exercise their seniority on return to service.'

"The plaintiff further states that he continued in the actual service of said Railway Company as helper in the yardmen department, under the terms, conditions and provisions of said Yardmen's Schedule until on or about July 18, 1931, when he was laid off from actual...