Roach v. Consolidated Forwarding Co., 45930

• Citation: 665 S.W.2d 675
• Decision Date: 31 January 1984
• Docket Number: No. 45930,45930
• Parties: Melvin ROACH, Plaintiff-Appellant, v. CONSOLIDATED FORWARDING COMPANY and Teamsters Local 600, Defendants-Respondents.
• Court: Court of Appeal of Missouri (US)

Page 675

665 S.W.2d 675

Melvin ROACH, Plaintiff-Appellant, v. CONSOLIDATED FORWARDING COMPANY and Teamsters Local 600 Defendants-Respondents.

No. 45930.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 31, 1984.

Kenneth M. Chackes, Patricia L. Cohen, St. Louis, for plaintiff-appellant.

H. Kent Munson, St. Louis, for Consolidated Forwarding Co.

Cary Hammond, Richard Shinners, St. Louis, for Local 600.

SNYDER, Judge.

Plaintiff-appellant, Melvin Roach, sued his former employer, respondent Consolidated Forwarding Company (Consolidated), for wrongful discharge and his union, respondent Teamsters Local 600 (Local 600), for breach of its duty of fair representation. The jury returned a verdict for both respondents and appellant appeals from the ensuing judgment. The judgment is affirmed.

Appellant was employed by Consolidated as a truck driver and was discharged for "recklessness resulting in serious accident while on duty," as provided in a collective bargaining agreement. Appellant maintained the accident was due to a mechanical defect in the tractor trailer. Whether a tractor trailer defect or recklessness on the part of appellant caused the accident is the determinative question.

The accident which resulted in the discharge of appellant took place at approximately 5:00 a.m. on March 1, 1973 when a tractor trailer rig, being operated by appellant, left the road near Pontiac, Illinois and overturned in the median, virtually destroying the tractor trailer and its contents.

After appellant was discharged he filed a grievance on March 16, 1973 in which he contended that the accident was the result of a faulty fifth wheel on the tractor portion of the rig, the fifth wheel being the flat metal plate on the bed of the trailer which is the coupling device for the tractor. Appellant said the fifth wheel was damaged when he drove over a railroad track or when he tried to change lanes. An expert witness also testified that the fifth wheel could have been damaged by going over the railroad track or by turning.

Although appellant testified the union changed the business agent who was to represent him shortly before the hearing which was held before a grievance committee of six members, three each from the union and management, an experienced business agent from the union represented appellant at the hearing. There was evidence that the union's handling of the grievance was somewhat perfunctory.

Appellant claimed that there was little investigation of the accident or the history of the truck which was wrecked, and that he was not notified of the hearing until the morning of the day it was scheduled. There was also evidence that appellant had actively campaigned against the incumbent union president in support of the incumbent president's opponent.

The committee denied the grievance in an unanimous decision, although there was testimony that a four to two decision was considered unanimous. Appellant, in an unusual procedure, was permitted to file a second grievance on February 8, 1974 and was allowed another committee hearing at which he presented evidence. The second grievance was also denied.

Appellant was then permitted to file a third grievance on April 7, 1975 in which he claimed that he had new evidence and that his original letter of discharge was invalid. After a third hearing, the third grievance was denied by the committee. There was unspecific evidence about a fourth grievance, but the record shows only three hearings.

In 1975 appellant filed his lawsuit against Consolidated and Local 600, the case having been first tried in October of 1981. ¹ Appellant won that trial and obtained a verdict for $70,000 against both defendants, but the trial court granted a new trial on the ground that the verdict was against the weight of the evidence.

Appellant sought damages in the form of alleged lost earnings as a result of his discharge, claiming that had he not been discharged he would eventually have become an employee of another trucking company as a result of various acquisitions and transfers of drivers. Part of the time for which he claimed lost wages, appellant was incarcerated for nine months on criminal charges. There was evidence appellant's employment would have been terminated when he failed to respond to work calls after his imprisonment. There was also evidence that he would have been laid off from the successor trucking company, as were other drivers with seniority rights similar to those appellant would have had if he had not been discharged.

The jury's verdict in favor of defendants was signed by nine jurors and at the hearing on the motion for a new trial appellant attempted to offer evidence that one of the jurors who signed the verdict had announced early in the deliberations that he would vote either way in order to go home and that if there were eight votes for either the plaintiff or the defendants, he would cast the deciding vote. Appellant offered to produce testimony from two jurors who were subpoenaed and present in the courtroom, but was not allowed to do so by the trial court. It came into the record as an offer of proof. The trial court rendered judgment in favor of defendants in accordance with the jury verdict and plaintiff Roach appealed.

Appellant briefs eight points relied on. He asserts the trial court erred in: (1) refusing to hear the testimony of two jurors at the hearing on his motion for a new trial; (2) giving Instruction No. 13 which defined "just cause;" (3) giving Instruction No. 14 to the effect that negligence on the part of the union is not sufficient to establish a breach of duty of fair representation; (4) giving Instruction No. 12 on damages; (5) admitting speculative testimony from a terminal manager who said that he would have discharged appellant when appellant was jailed; (6) admitting testimony about the truck plaintiff was driving because the testimony had not been disclosed in response to appellant's interrogatories; (7) excluding appellant's testimony that there was no charge of recklessness made by the state police; and (8) excluding testimony that the union president would not properly represent a member who had campaigned against him.

Appellant first contends that the trial court erred in refusing to consider the testimony of two jurors after the verdict had been returned. The two jurors would have testified, at the motion for a new trial, according to the offer of proof, that a third juror at some time early in the deliberations indicated he would vote whichever way eight of the other jurors decided because he wanted to go home and that the juror from that point on did not participate in the deliberations of the jury. The juror in question signed the verdict. It was not error to exclude the two jurors' testimony.

The rule is that "a juror may not, over objection, be heard to impeach his and the jury's verdict." Mayberry v. Clarkson Construction Company, 482 S.W.2d 721, 724[2-4] (Mo.1972); Norwood v. Lazarus, 634 S.W.2d 584, 589 (Mo.App.1982). Therefore, the trial court ruled properly in refusing to allow jurors to testify.

Appellant cites City of Flat River v. Edgar, 412 S.W.2d 537 (Mo.App.1967). Arguably, City of Flat River could have some application here inasmuch as in both cases the jurors in question refused to engage in the jury's deliberations. But in City of Flat River the refusal to participate was based on a disqualifying factor, the two jurors' religion, which existed at the time of the voir dire and which the jurors failed to disclose in answer to a direct question about their ability to render a fair and impartial verdict. Id. at 540. The juror in the case under review, according to the offer of proof, was a qualified juror at the time of the voir dire and did participate in the deliberations for an unknown period of time.

Moreover, Mayberry v. Clarkson Construction Company, supra, at least by implication, overruled City of Flat River, supra, because in Mayberry the supreme court held that even evidence that two jurors failed to answer truthfully voir dire questions about their qualifications was not admissible to impeach a jury verdict. Mayberry v. Clarkson Construction Company, supra, 1.c. 724[2-4]. Appellant's point is denied.

Appellant's next contention is that the trial court erred in defining "just cause" ² because if the facts of the case were in favor of Consolidated, it could discharge appellant only for recklessness and because, even if the term "just cause" could be defined, the definition given misstated the law. The point is denied.

The first issue is whether the phrase "just cause" could be defined. Appellant's contention that Consolidated was required to show that appellant was driving recklessly is only half true. The verdict directing instructions, ³ which appellant himself submitted, required the jury to find that respondent Consolidated discharged appellant "without just cause" in that appellant was not driving recklessly. The arbitration agreement specified that appellant could be discharged only for just cause which, under the agreement, included recklessness. Thus, the jury was obligated to consider whether Consolidated acted without just cause.

That the phrase "just cause" appears in the jury instructions does not necessarily mean that the trial court should have defined it. The meaning of non-technical, readily understandable phrases need not be explained in an instruction, but where technical legal terms are used, they must be defined. Wright v. Edison, 619 S.W.2d 797, 802[9, 10] (Mo.App.1981).

The issue is thus whether "just cause" is a technical legal term. "Just cause" in the context of collective bargaining agreements is a term of art which has developed its meaning through labor arbitration hearings. See generally Elkouri and Elkouri, How Arbitration Works, p. 612 (3d Ed.1979). Thus, the trial court was correct in deciding to define "just cause."

The next issue is whether ...