Odell v. Humble Oil & Refining Co., 4512.

• Decision Date: 02 January 1953
• Docket Number: No. 4512.,4512.
• Citation: 201 F.2d 123
• Parties: ODELL et al. v. HUMBLE OIL & REFINING CO.
• Court: U.S. Court of Appeals — Tenth Circuit

201 F.2d 123 (1953)

ODELL et al. v. HUMBLE OIL & REFINING CO.

No. 4512.

United States Court of Appeals Tenth Circuit.

January 2, 1953.

C. M. Neal, Hobbs, N. M. (W. D. Girand, Jr., Hobbs, N. M., on the brief), for appellants.

Nelson Jones, Houston, Tex. (Hiram M. Dow, Roswell, N. M., and K. C. Minter and Rex G. Baker, Houston, Tex., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of New Mexico, dismissing appellants' cause of action for failure to state a claim upon which relief could be granted. For the purpose of considering the correctness of the court's ruling, all facts well pleaded must be taken as true.

Plaintiff's cause of action was predicated on 18 U.S.C.A. § 1503.¹ The complaint in substance alleged that plaintiffs were employees of the Humble Oil and Refining Company, a corporation; that the amount involved as to each plaintiff exclusive of interest and costs was more than $3,000; that at all material times there was in effect a contract between the Employees' Federation of the Humble Oil and Refining Company, Production Department, West Texas Division, and the defendant, Humble Oil and Refining Company, governing the terms, conditions and relations of plaintiffs' employment by the company; that plaintiffs were members of the Federation; that by virtue of said contract and of the employment of the plaintiffs by the defendant the plaintiffs became and were vested with property rights, consisting of their jobs, and all the valuable incidents thereto including seniority, membership in the Humble Federation, retirement benefits including plaintiffs' right to remain in the employment of the defendant until discharged for the reasons or under the conditions provided by the contract.

The complaint further alleged that the Humble Oil and Refining Company was indicted in the United States District Court for the District of New Mexico charged with a federal offense; that prior to the return of the indictment and while the grand jury of the United States District Court was investigating the case that resulted in the indictment, plaintiffs were subpoenaed to appear as witnesses before the grand jury and did appear and give their testimony; that after the return of the indictment and upon trial of the defendant company they were again subpoenaed to appear as witnesses and did so appear and gave their testimony; that after the defendant was found guilty, sentence imposed and the judgment affirmed on appeal to the Circuit Court, they were wrongfully discharged from their employment; that they were discharged by defendant by reason of the fact that they had appeared pursuant to the subpoena and testified as required by law; that the discharge of the plaintiffs was not by reason of any of the causes for which plaintiffs could be discharged by the defendant under the terms and conditions of the contract that governed their relations but solely by reason of their having appeared pursuant to subpoena and having testified; that such discharge destroyed their property rights in their jobs and deprived them of all valuable incidents to their employment including their means of livelihood, their seniority, their right to participate in thrift, annuity and retirement benefits, and their right to continue in the employment of the defendant until such employment was terminated under the terms and conditions of said contract. Each plaintiff separately sought judgment for actual damages of $100,000 and punitive damages of $100,000.

The trial court did not set out the grounds on which it based its judgment. In support of the judgment appellee urges that the purpose of Congress in passing Section 1503 was to protect the administration of justice; that it is a criminal statute and must be strictly construed and does not purport to affect any civil rights or liabilities.

Appellants concede that the main purpose of the statute is the protection of the administration of justice but they make the further contention that it was also passed in part for the personal benefit of the witnesses themselves and for the protection of their person and property and that this was a purpose separate and distinct from the paramount purpose of safeguarding the administration of justice. They argue that that part of the statute making it a criminal offense to injure "any person or witness in his person or property" on account of his having attended court as a witness was passed for the witnesses' protection. From this they argue that since the statute was in part passed for their benefit it confers a cause of action on them for the violation of their safeguarded rights thereunder, although it makes no specific mention of their right to maintain such an action.

Appellants place strong reliance on the case of Texas & Pacific R. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, where the Supreme Court said: "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Comyn's Dig. title, `Action upon Statute' (F), in these words: `So, in every case, where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.'" This quotation by the Supreme Court was taken from the early English case of Couch v. Steel, 3 H. & B. 402. The language in these two cases is without qualification and in its broadest scope is sufficient to give a cause of action to one injured in his person or property by the violation of a penal statute passed for public purposes, even though no such right is conferred in the statute. But the language in each of these cases must be construed in light of the facts therein. This is pointed out with respect to the Couch case in an article, Public Wrong and Private Action, 27 Harvard Law Review, 317. Professor Thayer implies therein that the literal language of Lord Campbell is broad enough to give a civil remedy for violation of any criminal statute. The penal statute in the Couch case required medicines to be kept on board ship but that duty already existed at common law and the only question in the case was whether the penalty provided in the statute was intended to be the exclusive remedy for its breach. All the court in fact held was that the prior existing civil remedy to one who was injured by the tortious act of the master of a vessel in failing to have on hand medicines for passengers' and seamen's benefit was not wiped out by the penal statute. This was the construction placed upon the Couch case by Lord Cairns in the later case of Atkinson v. The Newcastle & Gateshead Water Works Company, 2 Ex.Div. 441, where it was held that a penal statute requiring a water works company to furnish required services to water users did not give a private cause of action for a violation of the statute by failing to provide the required service.

In Pearl Assurance Co. v. National Insurance Agency, 150 Pa.Super. 265, 28 A. 2d 334, Id., 151 Pa.Super. 146, 30 A.2d 333, it was held that a fraudulent conversion statute, a violation of which amounted to a criminal offense, did not wipe out the private wrong by merging it with the public wrong and that one especially injured could recover in tort.

Taylor v. Lake Shore & M. S. R. Co., 45 Mich. 74, 7 N.W. 728, involved a regulatory ordinance requiring snow and ice to be kept off side walks fronting residences. The court held that the duty to maintain the side walks free from snow and ice was a public duty and not a duty owed to individual pedestrians and did not confer upon them a private cause of action in case of injury resulting from a violation of the ordinance.

In Howson v. Foster Beef Co., 87 N.H. 200, 177 A. 656, 659, it was held that a customer who suffered injury from contaminated meat purchased from a dealer could not maintain an action against him under the State Pure Food Laws regulating such sales and making a violation thereof a penal offense. The court failed to find legislative intent to impose civil liability in favor of one injured by the sale of contaminated meat in violation of the provisions of the law. The court said: "It is the rule here that the violation of a penal statute is an actionable wrong only when the Legislature expressly so provides * * *, or when the purpose and language of the statute compel such inference."

In Munson Line v. Green, 6 F.R.D. 14, 18, the District Court of New York held that one who violated a statute making it an offense to conspire to falsely maintain or institute actions or special proceedings did not give a cause of action to one against whom harassing law suits had been filed in violation of the statute. In its opinion the court said: "As I read the cases relied upon by plaintiff to sustain this cause of action, I note that they have to do with conspiracies based upon acts which...