Mullin v. St. Louis-San Francisco Ry. Co., LOUIS-SAN

• Decision Date: 12 January 1953
• Docket Number: No. 7075,LOUIS-SAN,7075
• Citation: 254 S.W.2d 438
• Parties: MULLIN v. ST.FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

Page 438

254 S.W.2d 438

MULLIN v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 7075.

Springfield Court of Appeals, Missouri.

Jan 12, 1953.

E. G. Nahler, St. Louis, Douglas & Douglas, Bolivar, Donnelly & Donnelly, Lebanon, for appellant.

Jo B. Gardner, Monett, for respondent.

McDOWELL, Judge.

This is an action for damages for breach of employment contract. The cause was tried in the Circuit Court of Polk County, Missouri, resulting in a verdict and judgment for plaintiff for $5,000. Defendant appealed.

The petition states that on July 25, 1947, plaintiff was an employee of the defendant as locomotive engineer and had been so employed since July 14, 1917, and, at that time, had a seniority in excess of thirty years; that on July 25, 1947, there was in force and effect, as a part of plaintiff's employment contract with defendant, an engineer's schedule; that Article 52 thereof, entitled 'Discipline' provided in part:

'Engineers shall not be discharged, suspended or given demerit marks without just and sufficient cause. * * *'

The petition states that plaintiff was discharged from the defendant's employ on July 25, 1947, in violation of the terms of said contract of employment and as a result plaintiff was damaged in the sum of $12,000.

The answer admits that plaintiff was employed by defendant as alleged in the petition but denies each and every other allegation. The answer pleads affirmatively that there was an approved rule, which had been in effect for more than thirty years, which applies to all employees of defendant, including plaintiff, '* * * that an approved leave of absence in writing is required in every instance of any employee entitled to be working who is absent for thirty days or more; * * *' that plaintiff did not comply with this rule and by reason thereof is not entitled to recover.

In this opinion we will refer to respondent as plaintiff and appellant as defendant, being and position they occupied in the lower court.

In deciding the issues raised on this appeal we will state such parts of the evidence as we deem necessary for decision.

Defendant's assignment of error No. 1 complains that the trial court erred in refusing to sustain its motion to dismiss plaintiff's petition:

(a) Because the petition fails to state a claim upon which relief can be granted.

The petition pleads that a part of plaintiff's contract of employment provided: 'Engineers shall not be dismissed, suspended or given demerit marks without just and sufficient cause;' that defendant discharged plaintiff from his employment on July 25, 1947, in violation of the terms of said contract of employment.

Defendant contends that the pleading of the terms of the contract and then the allegation that plaintiff was discharged in violation of such terms, pleads nothing more than a conclusion regarding the alleged breach of contract; that the allegation is not supported by a statement of facts.

To support this contention defendant cites Section 509.050 RSMo 1949, V.A.M.S., which statute reads:

'A pleading which sets forth a claim for relief, * * * shall contain a short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled. * * *'

In Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 27, the court makes the following statement of law:

'We must appreciate and endeavor to effectively use the various means provided for attaining the objectives of the Civil Code of Missouri. It has been appropriately said that the primary objectives of the Code are to simplify legal procedure; to expedite trials and appellate reviews; and to lessen the expense of litigation--all to the end that substantial justice will be done between parties litigant. * * *; the merits of a case are to be passed upon and reviewed. * * * The aim is to determine what are the controversial issues before the trial begins, and limit the trial to them. * * * But the pleadings continue to be of the greatest utility in defining the issues of a case. And it is not to be understood that the petition in stating plaintiff's claim has lost its usefulness as a means of arriving at the primary objectives of the Code. On the contrary, it is to be understood that the petition is to be of the same usefulness as before, or of more usefulness than before, in plainly stating the facts upon which the plaintiff relies as showing that he is entitled to recover. It would not be helpful to the cause of substantial justice to ignore or abandon what learning and experience have found to be a plain statement of the facts of a claim, or of a defense. * * *

'By a pleader's plain statement of the facts, the trial court and the adverse party may see what principles of substantive law are applicable to the facts so plainly stated, and the adverse party may at once be enabled to ascertain from the plain statement of facts what the determinative facts are which he may believe himself to be able to controvert, or to confess and avoid--thus (by the aid of the pleadings alone) are some or all of the controversial trial issues isolated, the trial expedited, and the expense of the trial lessened. * * *'

Defendant cites Marranzano v. Riggs National Bank of Washington, D. C., 87 U.S.App.D.C. 195, 184 F.2d 349, 351. We think this case is in point that the allegation in the case at bar states a conclusion of law. The court said, in speaking of the allegations of the petition:

'* * * 'The discharge of the plaintiff was wrongful, without good and sufficient cause or justification, and in violation of the provisions of the aforesaid agreement.'

'This was nothing more than a conclusion of the pleader, since it was not supported by a statement of facts constituting the alleged breach of the contract. * * *'

If we follow the law as stated in the above case we would have to hold that the petition did not state a claim but the authorities are not all agreed as to the pleadings necessary to state a claim for wrongful discharge. Our courts have held that an action for wrongful discharge is in contract. The gist of this action is wrongful discharge. Reduced to its simplest terms, plaintiff's theory of this case is that he has a cause of action against defendant because he was discharged in violation of the terms of an express contract pleaded. Unless he was discharged in violation of said contract and the express terms therein, he has no cause of action. The burden of proving that his discharge was in violation of the terms of the contract pleaded remains upon the plaintiff. Craig v. Thompson, Mo.Sup., 244 S.W.2d 37, 42.

In 56 C.J.S., Matser and Servant, Sec. 52, Par. 2, p. 448, the law is stated:

'In an action for a wrongful discharge in breach of a contract of employment, the complaint must set forth all the essential elements of a valid contract. * * *

'In an action for damages for breach of contract by wrongful discharge, the wrongful discharge must be averred as the breach of the contract and as the fact constituting the cause of action. However, the ground on which the discharge was actually made need not be specifically alleged, and it has been held that a specific averment that the discharge was without cause is unnecessary since a discharge before termination of the contract period is prima facie a violation of the agreement. A formal dismissal need not be alleged or proved; an allegation of the denial and repudiation of the contract is sufficient. * * *

'* * * An allegation of performance by the employee is unnecessary, however, in an action for damages for breach of contract, as the cause of action is not predicated on performance but on defendant's prevention of performance. * * *'

It is generally true that the plaintiff must allege the ultimate facts which must be proven in order to entitle him to recover. The question of whether or not plaintiff was discharged without good and sufficient cause in violation of his contract with defendant was for the jury. Wilson v. St. Louis-San Francisco Ry. Co., Mo.Sup. 247 S.W.2d 644, 649.

We hold that the petition pleads the express contract which provides that plaintiff shall not be dismissed without just and sufficient cause and that defendant violated that contract on July 25, 1947, pleaded ultimate facts which constituted a cause of action and we find against defendant on this assignment of error.

Under defendant's assignment of error No. II, it complains of the sufficiency of the evidence to support the verdict. This assignment of error raises a very serious objection.

In Johnson v. Thompson, Mo.App., 236 S.W.2d 1, 7, the law governing the sufficiency of the evidence is stated thus:

'The law governing the sufficiency of evidence is very ably stated in Ford v. Louisville & N. R. Co., 355 Mo. 362, 196 S.W.2d 163, 167.

"It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' * * *

'In considering the sufficiency of the testimony, the evidence of the plaintiff is to be taken as true and all reasonable inferences that can be drawn therefrom and any evidence offered by the defendant that supports the plaintiff's case. Young v. Wheelock, 333 Mo. 992...