Starr v. Brotherhood's Relief and Compensation Fund

• Decision Date: 14 February 1974
• Citation: 268 Or. 66,518 P.2d 1321,98 Or.Adv.Sh. 1089
• Parties: George W. STARR, Respondent and Cross-Appellant, v. BROTHERHOOD'S RELIEF AND COMPENSATION FUND, a Pennsylvania corporation, Appellant and Cross-Respondent.
• Court: Oregon Supreme Court

Page 1321

518 P.2d 1321

268 Or. 66

George W. STARR, Respondent and Cross-Appellant, v. BROTHERHOOD'S RELIEF AND COMPENSATION FUND, a Pennsylvania corporation, Appellant and Cross-Respondent.

Supreme Court of Oregon.

Argued and Submitted Dec. 5, 1973.

Decided Feb. 14, 1974.

Craig E. Iverson, Portland, argued the cause for appellant. With him on the briefs were James C. Dezendorf, and Dezendorf, Spears, Lubersky & Campbell, Portalnd.

Don G. Swink, Portland, argued the cause and filed briefs for respondent.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, TONGUE and BRYSON, JJ.

HOLMAN, Justice.

This is an action by a railroad employee for benefits claimed to be due to him as a member of defendant relief and compensation fund after he had been held out of service by his railroad employer. The case was tried before the court, without a jury. Defendant appeals from a judgment awarding plaintiff benefits totaling $4,320. Plaintiff cross-appeals from the denial of his claim for attorney fees.

Defendant's sole assignment of error is that the trial court erred in denying defendant's motion for a directed verdict on the ground that the evidence conclusively established that (1) plaintiff had refused to perform services for his employer, and (2) defendant's membership agreement prohibited payment of any benefits where an employee was held out of service as the result of such a refusal.

The judgment of the trial court was based upon findings to the effect that the term 'held out of service' is defined in defendant's membership agreement to include all cases in which a railroad employee has been held out of service by his employer except case 'of any willful or intentional violation or infraction of any order * * * rule * * * or regulation * * * of his employer,' and that although plaintiff refused to perform services for his employer, he did so 'in good faith,' and did not do so 'willfully.'

Because this is an action at law we must affirm the trial court if its findings are based upon any substantial evidence. In reviewing the evidence we must also bear in mind that in such a case plaintiff is entitled to have the evidence viewed in the light most favorable to him, including all reasonable inferences from the evidence and with all conflicts in the testimony resolved in his favor. Archer v. Rogers Construction, 252 Or. 165, 169, 447 P.2d 380 (1968).

Plaintiff was employed by the Union Pacific Railroad as a freight conductor. As such he was responsible for the safe operation of the train and for all employees on it. For that purpose he was required to know and to obey all the general Safety Instructions and all Operating Rules of the railroad, as well as all Bulletin Orders, among other things. The railroad division superintendent, Mr. Hardin, had authority to issue and to cancel such Bulletin Orders.

In late September 1971, Mr. Hardin received the following letter from a local union:

'* * *.

'The Officers and Members of Local 1304 protest the locating mechanical refers (sic) and trailers in the consist of a train next to or near cabooses in which potent toxic fumes from these type cars will endanger the health and or safety of train crews.

'This local would appreciate your cooperation in this matter by issuing instructions to all concerned that such cars or trailers emitting potent toxic fumes be cut in a sufficient distance ahead of cabooses to prevent such fumes from entering cabooses.

'* * *.'

As a result, Bulletin Order No. A--47 was issued on October 5, 1971. It provided that:

'Perishable loads in mechanical refrigerator cars and trailers must be entrained not less than 5 cars ahead of caboose, number of cars permitting.'

This order, and the circumstances under which it was canceled one week later, on October 12, 1971, gave rise to the controversy which resulted in this case.

On that day plaintiff was instructed to take a freight train from The Dalles to Hinkle, a distance of some 100 miles. When the train came into The Dalles from Portland plaintiff noticed that a string of five refrigerator cars was separated from the caboose by only three other cars. He then called the yardmaster 'to make the necessary switch' in order to comply with the Bulletin Order.

Plaintiff was then notified that Mr. Hardin wanted to talk to him by telephone. In the course of the conversation which followed Mr. Hardin told Mr. Starr that he had canceled Bulletin Order A--47 earlier that day and that no switching was required. Mr. Starr told Mr. Hardin that he was concerned about the hazard of the fumes from the diesel units on the refrigerator cars and his own health and safety. Mr. Hardin told Mr. Starr to take the train out, which Mr. Starr said he would do if the cars were switched so as to comply with order A--47, but not otherwise. Mr. Hardin then took Mr. Starr out of service and another conductor was instructed to take the train out.

Mr. Starr testified that on from 10 to 15 previous occasions he had suffered from nausea and headaches when riding in the caboose behind reefer cars with diesel refrigeration units 'as near as 10 cars * * * depending on the number of them.' He also testified that if he became nauseous and got a headache he 'didn't feel (he could) remain alert and attentive and perform the duties that (he was) charged with performing.'

Plaintiff also testified that he had never before been given an oral order 'to violate a written order' and that under the Operating Rules he was responsible for compliance with the written Bulletin Orders; that he did not 'intend to be insubordinate,' but was 'reluctant to take the train out until * * * the switching had been done that would remove the health and safety question which was of first importance in (his) mind'; that he did not intend to delay the trian; and that the switching could have been done in from 10 to 15 minutes.

Union Pacific's Safety Instructions to employees include the following, of which Mr. Starr was aware:

'There is hazard of carbon monoxide fumes from exhaust of diesel or gasoline engines and precautions must be taken to avoid possibility of accident therefrom.

'Exhaust from such engines must not be located in close proximity of fresh air intake of passenger cars and care must be exercised at all times to see that there is sufficient ventilation where such engines are operated.' (No. 4115)

'Employes must take every precaution to prevent injury to themselves and other persons under conditions not provided for by the rules.

'Employes must not rely upon the carefulness of others, but must protect themselves when their own safety is affected.' (No. 4001)

'In case of doubt or uncertainty the safe course must be taken; in all cases, the safest available methods must be followed.' (No. 4000)

These general Safety Instructions were promulgated by the Vice President in Charge of Operations in 1954. The Safety Instructions are preceded by a certification containing the following:

'Special instructions may be issued by proper officer.'

Pursuant to the same subject, the railroader's bible, the Consolidated Code of Operating Rules, under Rule 109, contains the following information:

'Superintendents' bulletins or general Orders containing information Affecting the movement or Safety of trains and engines Will be issued and cancelled by the Superintendent and will be posted at locations designated in the timetable.

'* * *.' (Emphasis ours.)

Thus, the superintendent had authority to supplement the general Safety Instructions as applied to particular circumstances with his own orders and to cancel such orders as he made when he deemed cancellation appropriate.

Following an investigation and hearing, Mr. Starr was discharged. He then made application to defendant for payment of 'held out of service' benefits. Defendant denied his application upon the ground that it 'does not come within the provisions of our Constitution,' referring specifically to Article XII, (sec. 4), and Article XXXI, (sec. 1--a).

Article XII, (sec. 4), of defendant's constitution provides:

'Members shall not be eligible for any benefits or compensation whatsoever for 'held out of service,' As hereinafter defined where such claim is based in whole or part upon refusal to perform any duty or service for the employer, * * *.' (Emphasis added.)

Article XXXI--Definitions--(sec. 1--a) provides:

'The term 'Held out of Service' as used in this Constitution, Shall include all cases, where an employee * * * has been * * * relieved by his employer from the performance of his said usual duties as Discipline for * * * offenses, not, however, Because of any willful or intentional violation or infraction of any order * * * rule * * * or regulations, expressed or implied, of his employer * * *.' (Emphasis added.)

After exhausting his remedies of appeal as provided by defendant's constitution, plaintiff filed his complaint in this action. Defendant, by its answer, alleged as an affirmative defense that

'Plaintiff is not entitled to any benefits for being held out of service under defendant's membership agreement and constitution, since his conduct constituted Insubordination, a refusal to perform services, and a wilful violation of an order, all of which expressly preclude recovery of any benefits under defendant's membership agreement and constitution.' (Emphasis added.)

Contrary to the contention of defendant, the trial judge read the two constitutional provisions together to the effect that because 'held out of service' benefits were payable even in cases involving 'discipline for offense' unless the offense involved a 'willful or intentional violation' of an order, rule or regulation, it followed that a member who failed to perform a duty was eligible for 'held out of service' benefits unless he 'willfully or intentionally' violated some order, rule or regulation. We agree with such an interpretation. The document, in this respect, is a model of ambiguity, but we believe it...