MidSouth Rail Corp. v. O'Connor

• Decision Date: 21 March 1996
• Docket Number: No. 92-CA-01119-SCT,92-CA-01119-SCT
• Citation: 672 So.2d 1176
• Parties: MidSOUTH RAIL CORPORATION v. Victor J. O'CONNOR.
• Court: Mississippi Supreme Court

Page 1176

672 So.2d 1176

MidSOUTH RAIL CORPORATION v. Victor J. O'CONNOR.

No. 92-CA-01119-SCT.

Supreme Court of Mississippi.

March 21, 1996.

Rehearing Denied May 16, 1996.

George H. Ritter, Charles T. Ozier, Wise, Carter, Child & Caraway, Jackson, for Appellant.

C.E. Sorey, II, William W. Ramsey, Ramsey & Sorey, Vicksburg, for Appellee.

En Banc.

SULLIVAN, Presiding Justice, for the Court:

MidSouth Rail Corporation appeals a judgment rendered against it in the First Judicial District of Hinds County for $70,000 in favor of Victor J. O'Connor following a retrial granted by the circuit judge after the first trial resulted in a jury verdict in favor of MidSouth Rail Corporation. The new trial was granted on the basis of a remark in defense counsel's opening statement, to which plaintiff's counsel objected. The court had sustained the objection, and plaintiff's counsel did not ask for either a mistrial or that the jury be instructed to disregard the statement. No further complaint was made concerning the opening statement remark until plaintiff's motion for a new trial following a jury verdict and judgment in favor of MidSouth.

Because we find the circuit court abused its discretion in granting a new trial, we reverse and render, reinstating the judgment for the defendant.

FACTS

MidSouth Rail Corporation (MidSouth) is a Mississippi corporation with principal offices in Jackson, engaged in operating a railroad.

On July 20, 1987, around 10:00 a.m., O'Connor was working as a switchman for MidSouth in its rail yard in Jackson. He was 50 years old, had been working for a railroad company since 1961, and for MidSouth since 1986 following its purchase of some of the Illinois Central Gulf Railroad's line. His wife, Mrs. O'Connor, was employed as an x-ray technician for the University Hospital. They had one grown son.

The other members of the train crew that morning were M.C. (Matt) Nussbaum, the engineer, and J.R. Buckley, the brakeman. O'Connor was riding on the side of the engine when he heard Buckley over the short-wave radio exclaim a rail switch was improperly set. O'Connor jumped from the engine onto the track, injuring his left foot. Buckley was mistaken, the switch was correctly set and no collision or derailment was imminent when Buckley yelled.

O'Connor took some aspirin for the pain, and continued working. He signed an accident report that day, filling in "Nature of injuries" as "Left foot--heel." When he got home, he noticed that the bottom of his left foot was bruised. It was tender, and pain radiated up his leg. He soaked his foot in salted hot water, and thought he had sustained a stone bruise. He continued working and two months later in September, after working hours, he went to see Dr. Frazier Ward, an orthopedic surgeon with the University Hospital. Dr. Ward told him to continue soaking his foot, and gave him a rubber cushion pad which fit around the heel. He returned to Dr. Ward October 20, who recommended that he wear cowboy boots, but O'Connor told him this was not permitted by regulations.

According to O'Connor, he continued seeing Dr. Ward until December 1988 when the latter had a heart attack. Subsequent to this, according to O'Connor, he began seeing Dr. James Hughes, an orthopedist, January 23, 1989, who administered cortisone shots to his heel. From July 20, 1987, until September 1989, O'Connor worked full time with the railroad.

O'Connor testified he did not report any of this treatment to his company supervisors until the last week in August, 1989, when he was off four days. Bruce Coffey, superintendent, telephoned him at home on a Sunday, asking him why he had not reported this problem before. According to O'Connor, he had not reported it because a surgical procedure which Dr. Hughes had recommended would end his railroad career. Coffey informed him that this was serious, and he would have to talk with O'Connor's doctor. Then, the following Friday, Coffey "relieved me of my duty, ... [H]e pulled me out of services we call it."

According to O'Connor: "Because he said I was--it came to light that I was quarrelsome and troublesome to a customer, a Southern Beverage customer and impending an investigation into the matter I was suspended from service."

MidSouth during this period did in fact receive several complaints about O'Connor. A handwritten complaint, dated September 11, 1989, from David Tyson, complained, "I have seen Mr. O'Connor several times on our dock and he always seems to have an attitude problem. He tends to be arrogant and overbearing as if Weyerhaeuser doesn't do things to suit him." There were also two written complaints from Southern Beverage Co., a Jackson customer, one dated September 6, complaining O'Connor had an attitude problem and seemed to think the railroad was doing Southern Beverage a favor in doing business with them. The other, dated September 8, 1989, was detailed. It charged him with coming into the company warehouse on one day and in a distracting manner yelling at the manager from 100 feet away that the gate was locked and that it better not happen again. Upon another occasion O'Connor came in because the grass was high, and even though the company was in the process of mowing it, threatened them with no more stops. Upon another occasion O'Connor came in "yelling" about a truck which did not belong to Southern Beverage being on the track. O'Connor had other problems with Southern Beverage in which he was "neither businesslike or professional." Finally, Eddie Pierce, the warehouse manager and author of the complaint stated, while O'Connor had been "very positive" when they first started doing business, his attitude was reversed, he was rude, and did not respect Southern Beverage as a customer. And, if MidSouth had any more complaints to make of Southern Beverage, it should be done "by an officer of MidSouth and not by Mr. O'Connor."

Yet another complaint dated September 8, 1989, was received from Glen Baker, vice president of Southern Grain. It charged O'Connor threatening MidSouth's service to the grain company because it had made a telephone call to the downtown office of MidSouth requesting rail switches to Southern Grain's business. Baker said O'Connor had the wrong attitude, and he wanted MidSouth to be aware of it.

There was also a complaint by a fellow worker.

O'Connor testified that on October 9, 1989, following a MidSouth investigation, he was "terminated." Following an appeal process, he was reinstated September 28, 1989.

Under the Railway Labor Act, an aggrieved labor union member can have a hearing before a three-member "public law board" composed of a representative of the union, the employer, and a neutral person. By order number 8, dated September 16, 1990, the board unanimously found that on August 15, 1989, O'Connor over the radio asked B.J. Carpenter, the engineer, "where is my nigger?," referring to P.W. Johnston, a white brakeman. This was followed with, "if he's still on the engine, beat him off with that air brake handle." Johnston said that this was not an isolated incident, and that he was changing job assignments on September 5, 1989. The board further found that O'Connor, in acknowledging he had made the statements, said he had made them in jest, and apologized for doing so. The board found that O'Connor's conduct, while not appropriate and "exhibited extremely poor judgment," did not merit his 60-day suspension, but because of other matters involving O'Connor before the board, his only remedy would be expunging the mention of discipline from his work record. He was reinstated without pay for time lost. The MidSouth member dissented to the removal of discipline from his work record.

It should be noted that the above order is part of the record as an identification exhibit, the circuit court excluding its introduction into evidence before the jury.

Board order number 9 dated September 16, 1990, found that MidSouth's determination that O'Connor was "uncivil, quarrelsome, and belligerent in his dealings with the carrier's customers" was supported by the facts, was a "serious violation of the rules." It noted that the "carrier competes in an environment which is paramount for the carrier to provide excellent service and cultivate good will with its customers. Accordingly, the carrier cannot be expected to retain employees who do not embrace the carrier's objectives." The order recited that O'Connor's removal from service was justified: "however, the Board, believes that the claimant should be given the opportunity to return to the carrier's service and demonstrate that he can be a responsible employee." The order further required him to serve six months working as a brakeman or trainman, and not to be allowed to work as a conductor until after six months' service.

On September 18, 1990, Hugh Salmons, vice president and chief transportation officer of MidSouth, wrote O'Connor to report for a physical examination to a Dr. Easterling in Vicksburg. There was no response, and Salmons wrote him again on October 15, giving him three days to report. O'Connor was then examined by Dr. Easterling, who reported he was not qualified to return to work. Several months later MidSouth again requested O'Connor to be examined to see if he was qualified to return to work as a conductor. According to Salmons, he refused to make the appointment.

On July 26, 1991, O'Connor was offered a desk job as assistant purchasing agent for MidSouth in Vicksburg, which he refused. O'Connor testified the reason he did so was because this was a "management" job not covered by the union contract, and he distrusted Salmons, who might fire him at any time. Salmons had, subsequent to the offer, written O'Connor's attorney that he would stipulate in the employment contract that O'Connor could not be discharged except for unsatisfactory job performance. The job paid $35,000 per year, and generally there was a ten percent annual bonus with all...