Norman v. Willis, 24334

Decision Date04 April 1966
Docket NumberNo. 24334,24334
Citation402 S.W.2d 46
Parties62 L.R.R.M. (BNA) 2590, 53 Lab.Cas. P 11,150 Rufus NORMAN, Appellant, v. R. M. WILLIS, A. Phillip Randolph, Milton P. Webster (Deceased), Representing the Brotherhood of Sleeping Car Porters, a Labor Union, Respondents.
CourtMissouri Court of Appeals

Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.

Donald W. Fisher, Toledo, Ohio, Ernest Hubbell, Kansas City, Mulholland, Hickey & Lyman, Toledo, Ohio, of counsel, for respondents.

HOWARD, Judge.

This case comes to the writer on reassignment. It is a suit wherein plaintiff seeks compensatory and punitive damages for the wrongful refusal of the defendants, as officials of the Brotherhood of Sleeping Car Porters, to process his grievance under the provisions of a collective bargaining contract. The suit was commenced as a class action against the Union and R. M. Willis, local secretary of the Brotherhood of Sleeping Car Porters, Phillip Randolph, International President of that Union, and Milton P. Webster, First International Vice President. Plaintiff claimed that the defendants acted wilfully, wantonly, wrongfully and maliciously in refusing to continue to represent him and to process his grievance against his employer, the Pullman Company.

Defendants interposed a motion for summary judgment, which the trial court sustained, and entered judgment against plaintiff. The trial judge found that defendants processed plaintiff's grievance in good faith and that there was no genuine issue as to any material fact. Plaintiff appeals from such judgment.

In a case submitted on a motion for summary judgment, the burden is upon the party filing the motion (here the defendants) to show by unassailable evidence that there is no issue of fact remaining in the case and that the moving party is entitled to judgment as a matter of law. See Nelson v. Browning, Mo., 391 S.W.2d 873, Cure v. City of Jefferson, Mo., 380 S.W.2d 305, Oakley v. Duerbeck Co., Mo., 366 S.W.2d 430, and Cooper v. Finke, Mo., 376 S.W.2d 225. In this last cited case, it is said: 'The appellate court as well as the trial court must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered'. l.c. 228. The court also said, l.c. 229: 'As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure'.

For our purposes the facts in this case may be quickly summarized. Plaintiff is a pullman car porter and president of the Kansas City local of the Brotherhood of Sleeping Car Porters. In August of 1959 plaintiff laid off work because of his health. He was suffering from arthritis of the spine and perhaps bursitis. Plaintiff's personal physician put him in the hospital for X-rays and laboratory tests and then reported that he would be able to go back to work at the end of 'his vacation' on September 16, 1959. Such report was given to the employer, the Pullman Car Company, but the company refused to permit plaintiff to come to work at that time. Shortly, thereafter, the company doctor examined plaintiff and reported that he was physically unable to return to work. Plaintiff then went to another doctor of his own choice, who recommended extensive treatment, and at first stated it would probably be six months before plaintiff could return to work, although he might recover sufficiently to return in 90 days. However approximately 30 days thereafter and on November 16, 1959, this same doctor advised that plaintiff had recovered and could return to work. Also in November of 1959, plaintiff consulted Dr. Lichtor, a specialist in orthopedic surgery, who advised that plaintiff could return to work. All of the time after September 16, plaintiff was continuously trying to return to work; he was writing letters to the local supervisor of the employer, and was submitting various medical reports to such supervisor.

Plaintiff was not successful in his attempts to return to work and late in November, 1959, finally entrusted his grievance entirely to the Brotherhood of Pullman Car Porters, whom he asked to represent him in the grievance procedure with representatives of the company.

Mr. Milton P. Webster, First International Vice President of the Union, and one of the defendants herein, was the individual who handled this grievance in his position with the union. On an appeal provided for under the grievance procedure, the matter was submitted to a company official designated as an 'Appeals Officer'. This officer decided that plaintiff could return to work but denied his claim for back pay during the period from September 16, 1959, when he was not permitted to work by the employer. Plaintiff returned to work February 4, 1960. The next step in the grievance procedure, which now applied only to the claim for back pay, would...

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7 cases
  • Pagan v. City of Kennett
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1968
    ...Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter of law. Norman v. Willis, Mo.App., 402 S.W.2d 46, 47(1). See Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310(2). Our appellate courts have repeatedly characterized a summary jud......
  • Lowe v. Hotel & Restaurant Emp. Union, Local 705, 1
    • United States
    • Supreme Court of Michigan
    • March 22, 1973
    ...one court to conclude that the fact finder must determine the state of mind or motive of the union's decision-maker. Norman v. Willis, 402 S.W.2d 46 (Mo.App.1966). Our court has not endorsed such a subjective measure of union responsibility. In the context of an action against the employer,......
  • Citizens State Bank of Nevada v. Wales, 9053
    • United States
    • Court of Appeal of Missouri (US)
    • July 13, 1971
    ...17 (1966)) and that movant is entitled to judgment as a matter of law. Brooks v. Cooksey, Mo., 427 S.W.2d 498, 500(2); Norman v. Willis, Mo.App., 402 S.W.2d 46, 47(1). See Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310(2). Our appellate courts have repeatedly characterized a summary ju......
  • Spires v. Lawless, 9262
    • United States
    • Court of Appeal of Missouri (US)
    • February 12, 1973
    ...Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter of law. Norman v. Willis, Mo.App., 402 S.W.2d 46, 47(1). See Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310(2). . . Two further limitations on the scope of the opinion should b......
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