State ex rel. Bond v. Simmons

• Citation: 299 S.W.2d 540
• Decision Date: 28 February 1957
• Docket Number: No. 29488,29488
• Parties: STATE of Missouri, at the Relation of Elma BOND, Relator-Appellant, v. Harry SIMMONS, Walter Haeussler, and Mrs. Richard Hoffman, Constituting the Civil Service Commission of the City of St. Louis, Missouri, Respondents.
• Court: Court of Appeal of Missouri (US)

Page 540

299 S.W.2d 540

STATE of Missouri, at the Relation of Elma BOND, Relator-Appellant, v. Harry SIMMONS, Walter Haeussler, and Mrs. Richard Hoffman Constituting the Civil Service Commission of the City of St. Louis, Missouri, Respondents.

No. 29488.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1957.

David M. Grant, St. Louis, for relator-appellant.

James V. Frank, City Counselor, and William B. Anderson, Asst. City Counselor, St. Louis, for respondents.

MATTHES, Judge.

This is a proceeding brought under the Administrative Procedure and Review Act, Chapter 536 RSMo 1949, V.A.M.S., to review the decision of the Civil Service Commission of the City of St. Louis, hereinafter called Commission, filed August 10, 1955, finding that the order of dismissal of relator from her position as elevator operator in the Civil Courts Building, St. Louis, Missouri, was reasonable, and that she had been discharged for just cause.

Following final action of the Commission, and on September 8, 1955, relator filed her petition for a writ of certiorari and review in the Circuit Court of St. Louis, Missouri. That court issued its writ of certiorari, and pursuant thereto respondents filed their return, which included a true and complete transcript of the entire record, proceedings, and evidence before the Commission. The Circuit Court entered judgment finding that the decision of the Commission was authorized by law, and on the face of the entire record was supported by competent, substantial evidence; that the finding was not arbitrary, capricious, or unreasonable, and did not involve an abuse of discretion. From this judgment relator has perfected her appeal to this court.

We note at the outset that the action of the Circuit Court in issuing writ of certiorari pursuant to application therefor was not in accord with the procedure contemplated by the Constitution, Article V, Section 22, V.A.M.S., and the applicable statute. When, as in the instant case, there is a contest of the issue involved in the proceeding before the administrative agency, judicial review of final action of such tribunal is governed by Sections 536.100 through 536.140 RSMo 1949, V.A.M.S. (Section 536.110, amended Laws of Missouri 1953, page 679); Ruedlinger v. Long, Mo.App., 283 S.W.2d 889. Certiorari is authorized, however, in noncontested cases by express provision of Section 536.105, Laws of Missouri 1953, page 678. Although the precise remedy to secure review was not pursued, the appeal will not be dismissed. Relator did, within thirty days from the decision of the Commission, take action to secure a review by the Circuit Court whereby that court acquired jurisdiction, and we will therefore consider the case as though petition for review had been filed. Ruedlinger v. Long, supra.

The substance or gist of the three points appearing in relator's brief is that the finding and order of the Commission was based upon incompetent evidence; is not supported by competent and substantial evidence; and upon the whole record is arbitrary, capricious, and unreasonable, and resulted from an abuse of discretion.

The Constitution, Article V, Section 22, V.A.M.S., provides for a direct review by the courts as provided by law of all final decisions, findings, etc., of any administrative body, and such review shall include a determination of whether the decision is authorized by law, and is supported by competent and substantial evidence upon the whole record. It is now well settled that this does not mean that the Circuit Court of Appellate Court may substitute its judgment on the evidence for that of the administrative tribunal. Rather, the court making the review is authorized to decide whether such tribunal could have reasonably made its findings and reached its result upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. The reviewing court should adhere to the rule of deference to findings involving credibility of witnesses made by those before whom the witnesses testified. Wood v. Wagner Elec. Corp., en Banc, 355 Mo. 670, 197 S.W.2d 647; Dittmeier v. Missouri Real Estate Commission, Mo.App., 237 S.W.2d 201; Coleman v. Hercules Powder Co., Mo.App., 284 S.W.2d 32; Ulman v. Evans, Mo.Sup., 247 S.W.2d 693; Fleming v. Holland, Mo.App., 260 S.W.2d 840; Willens v. Personnel Board of Kansas City, Mo.App., 277 S.W.2d 665.

Relator's separation from service was based upon this formal charge lodged by the dismissing official:

'The employee has committed an act to the prejudice of the service. Unwilling to perform the duties of her position in a satisfactory manner. Insubordination.'

The acts of commission and omission forming the basis for relator's discharge apparently were climaxed by an incident which occurred on May 19, 1955. On the morning of that day, the Honorable Robert L. Aronson, a Judge of the Circuit Court within and for the City of St. Louis, entered the Civil Courts Building on the first floor, desirous of going to his chambers located on the fifth floor. The judge testified that Mrs. Bond, relator, brought an elevator down and stopped at the first floor. She was told by Mrs. Blanche Edwards, designated as the elevator starter, and who supervised the operation of the elevators, 'to take the people up over there'. Instead of complying Mrs. Bond replied: 'I have to go to the basement', and thereupon closed the door and descended to the basement where, according to Judge Aronson, she remained for approximately half a minute, during which time Mrs. Edwards sounded the buzzer repeatedly--'a dozen times'. When relator appeared again at the first floor, the judge entered the elevator, and during its ascent to the fifth floor he informed her, in response to a statement that she was trying to do her work, 'No, for a long time you haven't tried to do your work, and this is the finish as far as I'm concerned.' After reaching his office, Judge Aronson wrote a letter to the proper authority describing the incident. The judge's testimony was not, however, confined to the occurrence hereinabove related. He stated, 'I would say that Mrs. Bond's refusal to do a full job in the carrying of passengers has been continuous. * * * she would stand at the door of her elevator on the first floor * * * mumbling that she wasn't going to go at that time, and waiting beyond the time that Mrs. Edwards, by pointing her hand, directed people to go to this side of the corridor or that; and there are instances where the button would be pushed to come down from the fifth floor, the light would flash on, the elevator goes on. Taking the next elevator, I checked to see whose car had gone by without stopping. It was Mrs. Bond. That happened many times.'

Mrs. Edwards not only corroborated Judge Aronson's version of the May 19th occurrence, but supplemented it by testifying:

'Q. Was that an unusual occurrence, her closing the door and proceeding downstairs? A. It really was. If there was a passenger, I didn't see it, and if there was, she should have answered my signal.

'Q. Have you ever instructed Mrs. Bond to answer your signal? A. I have on numerous occasions.

'Q. Is that one of her duties? A. That is one of her duties to answer that signal.

'Q. That morning, on the 19th of May, did you signal her to come down? A. I signaled her when she was between the third floor, I'm sure, the first time, to direct my passengers there.'

The event was also reported by Mrs. Edwards to her 'superiors'.

Summarizing Mrs. Edwards' testimony concerning other acts of relator relied upon to support the charge of insubordination, we find that relator objected to operating the elevators by use of the electric signals; on occasions, instead of taking passengers, she would 'close her door and go up'. She refused to work with Mrs. Edwards, and in one instance told her, 'I'm not taking any orders from you, there is nothing you can do about it.' In March, 1955, relator closed the door and ascended with the elevator without...