Order of Railway Conductors v. Jones

• Decision Date: 06 July 1925
• Docket Number: 10848.
• Citation: 239 P. 882,78 Colo. 80
• Parties: ORDER OF RAILWAY CONDUCTORS et al. v. JONES.
• Court: Colorado Supreme Court

239 P. 882

78 Colo. 80

ORDER OF RAILWAY CONDUCTORS et al. v. JONES.

No. 10848.

Supreme Court of Colorado, En Banc.

July 6, 1925

Rehearing Denied Oct. 5, 1925.

Error to District Court, Boulder County; Neil F. Graham, Judge.

Suit by R. F. Jones against the Order of Railway Conductors and others. Decree for plaintiff, and defendants bring error.

Reversed and new trial granted.

John M. Grimm, of Cedar Rapids, Iowa, Pershing Nye, Fry & Tallmadge, of Denver, and Martin, Newcomer &amp Fitzgerald, of Boulder, for plaintiffs in error.

Goss & Hutchinson, of Boulder, Frank C. West, of Denver, and Charles D. Bromley, of Boulder, for defendant in error.

DENISON J.

Jones had a verdict and judgment against the Order of Railway Conductors, a voluntary association, and others, alleged to be its officers and agents, for $50,000 damages, $30,000 actual and $20,000 exemplary, for procuring his discharge, as alleged in the complaint, by means of persuasion, threats, coercion, and intimidation, as conductor on the Denver & Interurban Railroad, and for preventing him from obtaining employment as conductor or in any capacity other than as conductor on the branch line from Marshall to Eldorado Springs during four months in the year. An injunction was prayed and granted. The defendants bring error.

The real substantial defense was justification, and defendants sought to prove it by showing that they had never procured plaintiff's discharge or prevented his employment, except when such employment was in violation of the rights of other employees of the same class as plaintiff under seniority rights fixed by a contract with the railway company to which plaintiff was a party. This reasoning is sound if the facts support it. Do they?

The court seems to have left it to the jury to say whether there was justification. This was right. Berry v. Donovan, 188 Mass. 353, 74 N.E. 603, 5 L.R.A. (N. S.) 899, 108 Am.St.Rep. 499, 3 Ann.Cas. 738. The jury has found for the plaintiff. If there is evidence to support this verdict, the judgment cannot be reversed on this point. We think there is.

We need not attempt a comprehensive definition of what is an unlawful act in obtaining the discharge of an employee. It is enough to say that to induce without justification an employer to break his contract of employment with his employee is an actionable violation of the employee's right to labor. Berry v. Donovan, 188 Mass. 353, 74 N.E. 603, 5 L.R.A. (N. S.) 899, 108 Am.St.Rep. 499, 3 Ann.Cas. 738; R AN W Hat Shop v. Sculley, 98 Conn. 1, 118 A. 55, 29 A.L.R. 551, 559. See, also, the cases hereinafter cited.

What constitutes justification? It seems the acts must be based upon a right equal or superior to the right of the employee, whose contract with the employer the latter is persuaded to break. Berry v. Donovan and R AN W Hat Shop v. Sculley, supra.

Was there justification here? We must say that the evidence permitted the jury to find that there was not. The contract in this case was expressed in a so-called schedule and roster, agreed on between the men and the employers, which stated the class of each man employed by the company and his seniority in that class. The question of plaintiff's position under this contract was submitted to one Parker, and by his decision, which was accepted by all parties, plaintiff and others were given certain seniority rights on the Colorado & Southern Railway. It should be explained that the Colorado & Southern and Denver & Interurban were under one management.

It appears from the correspondence of Jenks and Sheppard, officers of the defendant association, that they deliberately planned to 'eliminate' plaintiff as to those rights. In this they were successful, and the effect was to deprive plaintiff of his job as a conductor on the Fort Collins division and give him one that employed him but four months in a year. Parker's decision became the contract, and their action was to destroy plaintiff's rights under it. The lodge joins in this action by resolution March 1, 1920. This resolution is equivocal, but, taken with the correspondence with reference to it, the jury or court would be justified in saying that the association and Jenks and Sheppard had determined and arranged together to deprive plaintiff of his seniority rights on the Colorado & Southern Railway, and Jenks' letter of December 12, 1920, reports that they had succeeded in getting plaintiff's name 'stricken from the conductor's roster of the Fort Collins division of that railway.' Assuming, as we must, that the jury or court found all these matters for plaintiff, we cannot say that there was justification or that the facts do not support the verdict.

To put the matter in another way: If the defendants were attempting by their attacks on plaintiff to maintain rights of their own which were equal or superior to his, there would be sufficient justification was a party they took, and, since plaintiff was a party to the schedule and roster (contract), in so far as they sought to enforce the terms thereof, they were only trying to make him keep the contract he had made, or obey their construction of it, but, since they left the construction of it to Parker, to whose decision all agreed, efforts to deprive plaintiff of his seniority given by that decision were open to the claim that there was no longer an equal or superior right to enforce, and therefore no justification, and the jury and court have found for plaintiff upon that claim.

In Berry v. Donovan, supra, the defendant relied for justification on a contract between the employer and the union to which he (the defendant) belonged, saying he had merely tried to enforce that contract. That case differs from the present one, in that the contract itself, which forbade the employment of nonunion men, was held unlawful, and in that the plaintiff there was not as here a party to such contract, but what we have said above shows that nevertheless the jury here was at liberty upon the evidence to find that the defendants acted without justification.

Further authorities more or less direct on this subject are Auburn Draying Co. v. Wardell, 227 N.Y. 1, 124 N.E. 97, 6 A.L.R. 901; Parker Paint, etc., Co. v. Local Union, 87 W.Va. 631, 105 S.E. 911, 16 A.L.R. 222; Ellis v. Journeymen Barbers, 194 Iowa 1179, 191 N.W. 111, 32 A.L.R. 756; Erdman v. Mitchell, 207 Pa. 79, 56 A. 327, 63 L.R.A. 534, 538, 539, 99 Am.St.Rep. 783; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753, 6 L.R.A. (N. S.) 1067, 116 Am.St.Rep. 272, 7 Ann.Cas. 638; Minasian v. Osborne, 210 Mass. 250, 96 N.E. 1036, 37 L.R.A. (N. S.) 179, Ann.Cas. 1912C, 1299; Jones v. Leslie, 61 Wash. 107, 112 P. 81, 48 L.R.A. (N. S.) 893, Ann.Cas. 1912B, 1158; Shinksy v. Tracey, 226 Mass. 21, 114 N.E. 957, L.R.A. 1917C, 1053, 1056; Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S.W. 450, 6 A.L.R. 894; Denver Jobbers' Ass'n v. People, 21 Colo.App. 326, 383, 388, 122 P. 404, 423; Lucke v. Clothing Cutters' & Trimmers' Assembly, 77 Md. 396, 26 A. 505, 19 L.R.A. 408, 39 Am.St.Rep. 421; Curran v. Galen, 152 N.Y. 33, 46 N.E. 297, 27 L.R.A. 802, 57 Am.St.Rep. 496; Moran v. Dunphy, 177 Mass. 485, 59 N.E. 125, 52 L.R.A. 115, 83 Am.St.Rep. 289; Connors v. Connolly, 86 Conn. 641, 86 A. 600, 45 L.R.A. (N. S.) 564; Local Union No. 313 v. Stathakis, 135 Ark. 86, 205 S.W. 450, 6 A.L.R. 894; Read v. Friendly Soc. of Operative Stonemasons, [1902] 2 K. B. 732, 1 B. R. C. 503; White v. Riley, [1921] 1 Chancery Division 1, 11, 12.

It was not a defense that plaintiff's employment was at the will of the employer. An employee has a right to the free exercise of such will. Berry v. Donovan, 188 Mass. 353, 74 N.E. 603, 5 L.R.A. (N. S.) 899, 108 Am.St.Rep. 499, 3 Ann.Cas. 738; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A. 1916D, 545, Ann.Cas. 1917B, 283.

The instructions seem not wholly consistent at least some of them are not readily reconciled, but, since the case is reversed on other ground, and since we are not required to prepare instructions for a new trial, we do not comment on these instructions fully. It seems clear, however, that the court required the jury, in order to give a verdict for the plaintiff, to find that the the defendant acted with malice for the primary purpose of injuring the plaintiff and without justification. We think that motive is irrelevant to the question of defendant's liability, and that their desire to injure him and purpose to do so are also irrelevant. If they are acting without the justification of an equal or superior right, they are acting unlawfully, and are liable whether their purpose is to do the plaintiff good or evil; they are liable, even if they believed that they were doing him a kindness. On the other hand, if they act...