Reed v. St. Louis S. W. R. Co.

• Citation: 95 S.W.2d 887
• Decision Date: 07 July 1936
• Docket Number: No. 23669.,23669.
• Parties: REED v. ST. LOUIS S. W. R. CO.
• Court: Court of Appeal of Missouri (US)

95 S.W.2d 887

REED v. ST. LOUIS S. W. R. CO.

No. 23669.

St. Louis Court of Appeals. Missouri.

July 7, 1936.

Rehearing Denied July 20, 1936.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Action by D. M. Reed against the St. Louis Southwestern Railroad Company, a corporation. From a judgment for plaintiff, defendant appeals.

Reversed.

A. H. Kiskaddon, Carleton S. Hadley, Lashly, Lashly & Miller, and Clark M. Clifford, all of St. Louis, for appellant.

Charles A. Lich and Louis L. Hicks, both of St. Louis, for respondent.

BECKER, Judge.

This is an appeal from a judgment of the circuit court of the city of St. Louis, Mo., rendered against appellant railroad company in an action brought by a former employee and respondent herein, to recover damages for an alleged wrongful discharge from the service of the appellant, claimed to have been made in violation of the provisions of a written contract entered into between an organization known as the "Order of Railway Conductors," of which respondent was a member, and the appellant company, which contract was in full force and effect at and prior to the time respondent was discharged from the service of the appellant on or about October 21, 1928. The pertinent provisions of said contract are as follows:

"Conductors will not be suspended or discharged without a fair and impartial trial; nor will they be suspended for minor offenses pending investigation or decision.

"When, in the judgment of the proper officers of the company, investigation is necessary, conductors will be given a hearing at which they may be represented by conductors of their own selection, employees of this company. Witnesses will be examined separately, except in event of conflicting testimony, when those whose evidence conflicts will be examined together. Decisions will be rendered within five days after the investigation. Should the accused be discharged or otherwise disciplined and consider such action unjust, his committee may within 30 days appeal in writing to the superintendent; should they be dissatisfied with the decision of the superintendent, they may appeal in writing within 30 days to the Vice President and General Superintendent who will then grant hearing, rendering decision within 15 days. If found guiltless, he will be reinstated and paid for the time lost. Cases will not be considered closed unless closed in writing by the General Committee and Vice President and General Superintendent."

On October 7, 1928, respondent was informed that charges based upon intoxication on the evening of October 4, 1928, had been made against him, and that he should appear before the assistant superintendent on October 7, 1928, for investigation. The hearing upon the charges was had on October 7, 8, and 9, 1928, before the assistant superintendent, and on October 21, 1928, respondent received a letter from appellant's assistant superintendent as follows:

"Illmo, Mo. Oct. 21, 1928. Mr. D. M. Reed, Conductor, Illmo, Mo. Dear Sir: With reference to investigation held in this office on October 7, 1928, in connection with your violation of Rule `G' on October 4th.

"This is to advise you that effective today you are dismissed from the services of this company for violation of Rule `G'. Yours truly, H. A. Dickey, Assistant Superintendent."

Rule G referred to in Dickey's letter provides that, "The use of intoxicants by employees while on duty is prohibited. Their use or the frequenting of places where they are sold, is sufficient cause for dismissal."

It is admitted that respondent was not suspended but continued to work as conductor for the appellant throughout the time that the charges which were preferred against him were under consideration; that he was discharged and relieved of duty only after he had received the letter of October 21, 1928.

Respondent's theory of the liability of appellant as for an alleged wrongful discharge is based upon appellant's violation of the provisions of the employment contract relating to suspension and dismissal of employees, in failing to render a decision on the charge of intoxication within five days "after the investigation," which respondent contends was concluded for all purposes on October 9, 1928, and a decision not rendered on said charge until October 21, 1928. This contention is predicated upon the theory that the words "after the investigation" in the employment contract means that the decision shall be rendered within five days after the conclusion of such a hearing as was had on October 7, 8, and 9, 1928, and that the word "investigation" as used in said contract does not authorize or include any further inquiry into the charge, such as checking the employee's previous record with the company after the conclusion of said hearing on October 9, 1928, as was testified to as having been made by appellant in the instant case, and as had been the custom of appellant to do and had done in prior cases.

The record discloses that respondent did not appeal from the decision rendered on October 21, 1928, discharging him, though provision for appeal is provided for, as appears from parts of the employment contract which we have set out above.

The case was submitted to the jury upon instructions, no one of which informed the jury what facts, if proven, would warrant the jury in returning a verdict for plaintiff. The appellant noted its exception to the action of the court in refusing, at its request, to require plaintiff to submit such an instruction; and appellant then made the further request that the court give such an instruction, and, such request being denied, saved its exception thereto. A verdict was returned in favor of plaintiff, and from the resulting judgment defendant appeals.

Appellant's first assignment of error is that the trial court erred in overruling its demurrer offered at the close of the case, in that though the contract of employment provided that "should the accused be discharged or otherwise disciplined and consider such action unjust, his committee may, within thirty days, appeal in writing to the superintendent; should they be dissatisfied with the decision of the superintendent they may appeal in writing within thirty days to the vice president and general superintendent who will then grant a hearing, rendering decision within fifteen days," neither the respondent,...