McGlohn v. Gulf & S. I. R. R. Co.

• Decision Date: 17 May 1937
• Docket Number: 32533
• Citation: 179 Miss. 396,174 So. 250
• Parties: MCGLOHN v. GULF & S. I. R. R. CO
• Court: Mississippi Supreme Court

174 So. 250

179 Miss. 396

MCGLOHN v. GULF & S. I. R. R. CO

No. 32533

Supreme Court of Mississippi

May 17, 1937

Division A

Suggestion Of Error Overruled September 27, 1937.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Suit by F. N. McGlohn against the Gulf & Ship Island Railroad Company. From a judgment in favor of the defendant, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Jo Drake Arrington, of Gulfport, for appellant.

Aside from other considerations and circumstances imparting it, the element of mutuality which has been held to be absent and lacking when a contract for permanent employment is entered into by an employer with one lone servant or individual (where no consideration exists other than the services contracted to be rendered by the latter), as obtained in the case of Rape v. Mobile & O. R. Co., 100 So. 585, 136 Miss. 38, 35 A. L. R. 1422, is conspicuously present in an agreement reached and solemnly adopted and published as the result of collective bargaining by and between a whole class of employees and their employer, as was the agreement, Exhibit "A" to the declaration, in the case at bar. There is indeed and obviously a difference in character and quality between a lone individual's contract for permanent employment and an agreement (or treaty') arrived at between a whole class of employees and the the owners (or managers) of a powerful industry.

But even the solitary individual's contract of permanent employment with a master, or employer, is valid and binding if the consideration therefor is a release on the part of the individual servant of his claim for damages as the result of personal injuries.

Jackson v. I. C. R. Co., 76 Miss. 607, 24 So. 874.

In all reason if the releasing of a claim for damages on the part of a servant is a sufficient independent consideration to validate a contract for permanent employment (which would otherwise be lacking in mutuality), then surely the action of a whole class of employees (through their union) in subscribing jointly to a solemn agreement binding on them all, collectively and individually, followed by years of faithful performance of it on their part, is tantamount in itself to an independent contractor: every individual employee sacrifices or circumscribes his personal claim to any special consideration or preference of any character, and agrees and binds himself "to take pot-luck" with his fellow-workers: the advantage derived by the employer in being able to deal with his employees as a unit, and the concessions or sacrifices imposed on the employees, are alike obvious. Experience, of course, has taught the workers that in the long run their interests are best protected and secured by their self-imposed unity, and it has also taught many employers that ultimately their best interests are promoted by engaging in collective bargaining with their employees, whose agreements are as a rule faithfully performed. The certainty that such an agreement will insure peace and harmony between employees and employer, not to mention the factor of social peace (which is a consummation devoutly to be wished), is in itself consideration enough to validate and impart mutuality to every legitimate article of such an agreement.

It is elementary that mutuality may be implied when it is not expressed.

It is obvious that the establishment of a pension system by the appellee, for the benefit of its retired and superannuated employees, is in itself a circumstance which conclusively confirms the allegations and the contention of the appellant that his contract of employment was permanent, and that it was both the desire, the intention and the specific object of the appellee (the Gulf & Ship Island Railroad Company) that the appellant should remain permanently in its employ (which contention is perfectly consistent with the express limitation: until the occurrence of a "just cause" for appellant's discharge.)

Certainly the law will not permit the appellee to contend successfully that its promise of a pension to the appellant was "a delusion and a snare;" yet, if the appellee was at liberty to discharge the appellant at will, at its pleasure, and without just cause, then one of the main inducements held out by the appellee to the appellant, namely, the prospect and assurance of a pension on his retirement, turns out to have been a delusion and a snare.

Though our own Supreme Court has not dealt with the precise question raised herein, there are recent decisions of our court which indicate that Mississippi has kept abreast of the times and has taken her position in the vanguard of those jurisdictions which "lead the march of progress." It is believed that the principles, and certainly the spirit of the law as expressed in those decisions will illuminate the path that should be taken in deciding this particular case. We refer specifically to, and cite:

Yazoo & M. V. R. Co. v. Sideboard, 161 Miss. 13, 133 So. 669; Mississippi Theatres Corp. v. Hattiesburg Local Union No. 615, 174 Miss. 439, 164 So. 887; Y. & M. V. R. Co. v. Webb, 64 F.2d 902.

Reasoning by analogy, as the law is wont to do when confronted with a different state of facts, if an agreement between a union and an employer as to wages is upheld as valid and binding, even if a particular employee does not belong to the union through whose agency the agreement was made, then, by parity of reasoning, if such an agreement definitely provides that "no conductor will be discharged without just cause," as the agreement (Article 30) specifically provides in this case, then such a prohibition against arbitrary discharge should be upheld and enforced as valid and binding on the employer.

In many jurisdictions contracts for permanent employment were upheld.

Carnigg v. Carr, 167 Mass. 544, 46 N.E. 117, 35 L. R. A. 512, 57 A. S. R. 488; Newhall v. Journal Printing Co., 105 Minn. 44, 117 N.W. 228, 20 L. R. A. (N. S.) 899; Butterick Publishing Co. v. Whitcomb, 225 Ind. 605, 80 N.E. 247, 8 L. R. A. (N. S.) 1004; Penn Co. v. Dolan, 51 A. S. R. 289; Pierce v. Tenn. Coal, Iron & Railroad Co., 173 U.S. 1, 19 S.Ct. 335, 43 L.Ed. 591, 110 Ala. 533, 19 So. 23; St. Louis B. & M. R. R. Co. v. Buckner, 5 S.W.2d 956; Galveston & H. S. A. R. R. Co. v. Eubanks, 42 S.W.2d 475; San Antonio & A. P. Ry. Co. v. Collins, 61 S.W.2d 84; Johnson v. American Ry. Express Co., 161 S.E. 476; Labatt on Master and Servant (2 Ed.), par. 92, page 335.

If the appellant is mistaken in his contention that his contract was for permanent employment, it still would not follow that his employment contract was terminable at the will and pleasure of the appellee, as many of the authorities cited above will indicate.

Roxana Petroleum Co. v. Rice, 109 Okla. 161, 235 P. 502, 62 A. L. R. 234; Lee v. Hampton, 79 Miss. 321; Kiker v. Bank Sav. L. Ins. Co., 37 N. M. 346, 23 P.2d 366; S. J. Piercy v. Louisville & Nashville Ry. Co., 198 Ky. 477, 248 S.W. 1042, 33 A. L. R. 322.

As to the duration of a servant's employment, all matters, facts, circumstances, usages, etc., including the conduct of the parties, are inquired into and considered as determining.

Putnam v. Producers Live Stock Marketing Assn., 256 Ky. 196, 75 S.W.2d 1075, 100 A. L. R. 828; Labatt, on Master and Servant, sections 156, 159.

Even if the right to discharge the employee is retained, the employer is held by the law to the exercise of the utmost good faith.

Schmand v. Jandorf, 44 L. R. A. (N. S.) 680; Atlanta Stove Works v. Hamilton, 83 Miss. 704, 35 So. 763.

It is not always necessary that there shall be mutuality in a contract in order that there may be a binding obligation on both parties.

1 Williston on Contracts, par. 140; 6 R. C. L. 686, sec. 93; 13 C. J. 324, sections 162-3; 1 Elliott on Contracts, section 207 and Chapter 9; 13 C. J., sections 150-170.

Gardner & Backstrom, of Gulfport, E. C. Craig, of Chicago, Ill., and Bruch, Minor & McKay, of Memphis, Tenn., for appellee.

The contract exhibited with the declaration is not supported by an independent valid consideration, and must, therefore, depend upon mutual covenants for a consideration to support its binding force. It is obvious that there are no mutual covenants contained in the contract. The Railroad Company is bound thereby to retain the plaintiff and all other railway conductors then or thereafter employed by it in its service upon the terms, conditions, and at the rate of pay therein stipulated, but neither the Order of Railway Conductors nor any single individual conductor is bound to perform one day's service for the Railroad Company or to furnish a single individual conductor to perform such service. The Railroad Company is bound but the Order of Railway Conductors and the individual conductors are not bound. Therefore, neither party is bound.

It cannot be successfully contended that the defendant does not have the legal right to discharge its employees, either for or without cause, unless that right has been contracted away. In order to contract that right away, it is necessary that an independent outside consideration flow to the defendant.

I. C. R. Co. v. Jackson, 76 Miss. 607, 24 So. 874.

The case at bar presents a case where the plaintiff is seeking to enforce a contract which he claims is for life employment, but which is not supported by any outside valuable independent consideration.

18 R C. L. 509, 510; Skagerberg v. Blandin Paper Co., 266 N.W. 872; Rape v. M. & O. R. Co., 136 Miss. 38, 100 So. 585; Lord v. Goldberg, 81 Cal. 596, 15 A. S. R. 82, 22 P. 1126; Shuler v. Corl, 39 Cal.App. 195, 178 P. 535; Bentley v. Smith, 3 Ga.App. 242, 59 S.E. 720; Echols v. Railroad Co., 52 Miss. 610; Pitcher v. United Oil & Gas Syndicate, 139 So. 760; ...