Parker v. Southeastern Haulers

• Citation: 41 S.E.2d 387,210 S.C. 18
• Decision Date: 10 February 1947
• Docket Number: 15911.
• Parties: PARKER v. SOUTHEASTERN HAULERS, Inc.
• Court: South Carolina Supreme Court

41 S.E.2d 387

210 S.C. 18

PARKER v. SOUTHEASTERN HAULERS, Inc.

No. 15911.

Supreme Court of South Carolina

February 10, 1947

Frank A. Graham, Jr., and Fred D. Townsend, both of Columbia, for appellant.

C. T. Graydon and J. Bratton Davis, both of Columbia, for respondent.

STUKES Justice.

Respondent recovered a verdict and judgment against appellant in the Court of Common Pleas for Richland County at the October 1945 term for $250 actual damages and $350 punitive damages, upon a complaint in which it was alleged that respondent was employed by appellant as the driver of a truck in its interstate transportation business; that in May 1943 respondent was sent to Hattiesburg, Mississippi, to bring back a machine, called a 'bulldozer,' without instructions that it exceeded in width the highway regulations of any state, nor was he instructed to secure a permit therefor in any state except Mississippi; that he complied with his instructions but in Alabama he was arrested by an officer for transporting the cargo of excessive width and required to pay a fine of $9, through no fault of his that upon return to his employer, the latter (appellant) attempted to require him to stand the loss of the $9, which he had paid from the expense money advanced to him, or to leave his employment, which was in effect a forceful discharge; that under the custom and regulations respondent was required to obtain a release from his last employer in order to obtain other employment, and respondent made due and timely demand for such a release, which appellant negligently and wilfully refused to furnish, thereby causing respondent to be deprived of work; and that appellant informed respondent that unless he returned to his former work he would not be given a release and would thereby be prevented from obtaining other work, but respondent was further told by appellant that if he would pay the $9 he would be given a release, but respondent refused such wrongful demand and was damaged by appellant's arbitrary, etc., conduct. $3,000 was demanded.

The answer was a qualified denial and in addition contained affirmative allegations, substantially as follows: That appellant's business is an essential activity under the War Manpower program; that when respondent left his employment, appellant mailed to him and to the United States Employment Service at Columbia a Termination Slip pursuant to the provisions of the Employment Stabilization Plan in effect in this territory, which only was required by Section V entitled 'Separation Practices'; that respondent did not request of that agency a review of the facts and a determination of whether he was entitled to a 'referral'; that by the authority of the Federal First War Powers Act, 1941, 50 U.S.C.A.Appendix, § 601 et seq., and the amendatory Act of October 2, 1942, the President promulgated Executive Order No. 9328, 50 U.S.C.A.Appendix, § 901 note, which forbids new employment except as authorized by the regulations of the War Manpower Commission; that the Emergency Price Control Act of 1942 of Congress provides as follows: 'No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator of the Office of Price Administration and Civilian Supply, notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or agreement may be modified, rescinded, or determined to be invalid. In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such suit or action.' 50 U.S.C.A.Appendix, § 925(d).

(The foregoing quotation from the answer is set out in full to demonstrate its entire inapplicability to the facts developed, which will be stated. While the controversy centers about a Federal regulation such as is referred to in the quoted statutory provision, liability is not predicated upon any modification, recission or determination of invalidity of it. Nor is the non-intervention of the Administrator material, as will be seen.)

There were no preliminary motions and the case proceeded to trial by jury. The evidence was in little conflict, that of respondent tending to substantiate the allegations of the complaint which were supported in part by that offered by appellant. He testified that after the dispute as to his responsibility for the $9 fine he was told by appellant's mangager that he must pay the amount or lose his job whereupon he asked for a 'release' which appellant refused unless the $9 be paid by respondent. The latter went back a few days later to get his pay, which he did without deduction of the amount of the fine, and again asked his former employer, who again refused, to furnish him a release. Application was then made by respondent to another employer, Railway Express Agency, which refused to employ him without a release from his former employer, and he went back to appellant and told the manager that he was being kept out of work, demanded a release which appellant again refused. Then respondent consulted his attorney, this several days after termination of his employment, and the attorney wrote a letter to appellant in effect demanding a release as required, quoting, 'by the present United States Rules and Regulations.' Thereafter respondent again called upon appellant, whose manager and witness was a Mr. Patterson. Respondent's testimony thereabout is here quoted from the record:

'Q. Now, after that letter was written did you go back to see this man Patterson again? A. Yes, sir.

'Q. All right, what did you tell him and what did he say to you? A. I asked him whether he was going to give me a release, and he said, 'No. You are going to put the law on me, aren't you?' And I said, 'No. But it looks that way and I went to see Mr. Graydon.' And he said, 'I have got a lawyer, too, and we will test it out in court.'

'Q. What did he tell you about how long he would hold you out of work? A. He said ninety days.

'Q. Did he say he was going to do that? A. That must have been his intention. He didn't give me a release.

'Q. Did he tell you he had ever sent you any separation papers or to the employment service? A. No, sir.

'Q. How long were you actually out of work? A. About six weeks.

'Q. How many times did you talk to Patterson about this matter of getting the release? A. Three different times that I know of.

'Q. At any of those times did he ever tell you that he had sent any separation thing to the employment service? A. No, sir.

'Q. Did he ever tell you to go to the employment service? A. No, sir.

'Q. Did he ever give you any copy of anything he claimed to have sent there? A. No, sir.

'Q. And you are sure that you went to see him three times? A. Yes, sir.

'Q. How long was it before you could get any work to do on account of this situation? A. Six weeks before I got a job.'

The job referred to as having finally been obtained, after several refusals elsewhere, was with the City of Columbia for substantially less salary than he formerly earned when in the employ of appellant, and work was obtained with the city because it was not subject to the Federal regulations referred to. After working there for six months he was eligible for other employment under the Federal regulations and he then obtained work with an express company at a salary about half as much again as he earned from the city and in an amount comparable to his former wages.

There was evidence that during the time respondent was out of work he went to the office of the War Manpower Commission and told them about the dispute with the appellant concerning the $9 and was informed that the Commission had nothing to do with the dispute; and he also futilely went to the office of the Wages and Hours Administration, another Federal agency.

Mr. Patterson contended in his evidence that it was respondent's responsibility to pay the controverted fine, this under his company's rules, because he was required by them to consult the respective State authorities regarding the highway regulations. His testimony thereabout is quoted, as follows:

'A. * * * So Parker said he wasn't going to pay the fine. And of course, he knew the regulations, and there wasn't anything else for him to do. I told him those were the rules, and had been ever since the Haulers had been operating, and they are still the rules and regulations. And he said he would quit. And he asked me for a release and I would not give it to him.

'Q. Will you state to the Court why you would not give him a release? A. Because I needed those men in this operation, and we were moving Government equipment, and the Executive Order had stated that if you had an employee on an essential job and you needed him, that he was frozen, you didn't have to give him a release.'

He further testified that after receiving the attorney's letter he got his lawyer and, for the first time, consulted the office of the Employment Service, also called in the record the War Manpower Commission, and learned that it was necessary that the employer give the employee a termination notice and he had his bookkeeper prepare two, one of which was mailed to the War Manpower Commission, and the other to respondent (respondent denied that he ever received his copy). However, the Employment Service...