Stroman v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 09 June 1958
• Citation: 326 P.2d 155,161 Cal.App.2d 151
• Court: California Court of Appeals Court of Appeals
• Parties: , 35 Lab.Cas. P 71,709 Auderiene STROMAN, Plaintiff and Respondent, v. The ATCHISON, TOPEKA and SANTA FE RAILWAY COMPANY, a corporation, Defendant and Appellant. Civ. 17677.

Page 155

326 P.2d 155

161 Cal.App.2d 151, 35 Lab.Cas. P 71,709

Auderiene STROMAN, Plaintiff and Respondent, v. The ATCHISON, TOPEKA and SANTA FE RAILWAY COMPANY, a corporation, Defendant and Appellant.

Civ. 17677.

District Court of Appeal, First District, Division 1, California.

June 9, 1958.

Rehearing Denied July 9, 1958.

Hearing Denied Aug. 6, 1958.

Robert W. Walker, Richard K. Knowlton, Los Angeles, Peart, Baraty & Hassard, San Francisco, for appellant.

Jarvis, Miller & Decker, Hugh B. Miller, Charles W. Decker, San Francisco, for respondent.

PETERS, Presiding Justice.

Auderiene Stroman, on July 22, 1952, filed this action naming as defendants the Atchison, Topeka and Santa Fe Railway Company and several of its employees, and the Bay Cities Lodge No. 1039 of the Brotherhood of Railway and Steamship Clerks, an unincorporated labor union, and several of its officers. This complaint is entitled: 'Complaint for Damages for Conspiracy to Force Plaintiff out of Service of Defendant Atchison, Topeka & Santa Fe Railway * * * in Violation of Contractual Provisions.' It contains detailed allegations in reference to the claimed conspiracy and asks for damages for the conspiracy alleged, claiming that such conduct violated the provisions of the Collective Bargaining Agreement existing between the Santa Fe and the union. The Santa Fe's answer admitted the employment of the plaintiff, denied the conspiracy, denied any breach of the employment contract by it, denied any termination of such contract by it, denied that plaintiff had performed certain conditions precedent required by the employment contract, and alleged a breach of the employment contract by her.

During the trial the Santa Fe moved for a summary judgment on the ground that before filing suit plaintiff had not exhausted her administrative and contractual remedies. This motion was denied. Plaintiff then dismissed as to defendant A. B. Enderle, a Santa Fe employee who had died, and as to the union and its officers.

At the close of the presentation of the evidence, all of the individual defendants remaining in the case moved for a nonsuit on the ground that no conspiracy had been proved. These motions were granted, and all of the remaining individual defendants were dismissed from the proceeding. This left as the sole defendant the Santa Fe. The court denied its motion for a nonsuit. The court then granted plaintiff's motion for a directed verdict against the Santa Fe. This motion was granted, on the theory that the complaint not only alleged a conspiracy but also alleged a cause of action for damages for breach of the employment contract, and a wrongful discharge of plaintiff by the Santa Fe, and that the evidence showed, as a matter of law, that the Santa Fe had breached the contract of employment and wrongfully discharged the plaintiff without affording her a hearing and investigation as required by the Collective Bargaining Agreement governing the terms of her employment. The court then submitted the question of the amount of damages to the jury and the jury assessed the damages against the Santa Fe at $40,000. The Santa Fe appeals from the judgment entered on that verdict. Its main contentions are that it was entitled to a summary judgment in that it appears as a matter of law that plaintiff did not, prior to filing suit, exhaust her contractual and administrative remedies as required by law, and that, in any event, the issue of liability should have been submitted to the jury for the reason that the evidence in reference thereto is conflicting.

This being an appeal from a directed verdict, on all factual issues the evidence produced by appellant, and all reasonable inferences therefrom, must be accepted as true. This court must view all of the evidence submitted in the light most favorable to appellant and must accept every inference in favor of appellant that can reasonably be drawn from the evidence. These rules are elementary.

Inasmuch as the complaint alleges a conspiracy, and the court ruled in granting the motions for nonsuit of the individual defendants that, as a matter of law, no conspiracy had been proved, the only theory that will support a judgment against the Santa Fe is that there was also involved a cause of action against that company for wrongful breach of the employment contract, that is, that respondent was wrongfully discharged in violation of that contract. Appellant contends that the complaint alleges no such cause of action. It is true that it is difficult to spell out such a cause of action from the complaint in precise language. The complaint but hints at and does not directly allege such a cause of action. But necessarily underlying the conspiracy allegations is the theory that the discharge was unlawful and in violation of the Collective Bargaining Agreement. Moreover, the complaint is not the only document before us. There is also the Santa Fe's answer which discloses that the defendant was not misled by the complaint. It must have construed the complaint as including a cause of action for wrongful discharge in violation of the contract, because it denied any breach of the employment contract by it and denied that it had wrongfully terminated the admitted employment. Whatever doubt may have existed on this issue was set at rest at the time of trial. At that time the issue of whether plaintiff had or had not been discharged was fully developed by both litigants. It is too late now, under these circumstances, to complain that the issue was not before the trial court. It was.

It is undisputed that the employment relationship of plaintiff with the Santa Fe, at all times here relevant, was covered by an agreement between the Santa Fe and the Brotherhood of Railway and Steamship Clerks. This Collective Bargaining Agreement purports to cover the working conditions and hours of service of the various persons, including plaintiff, covered by it. The trial court, in granting the directed verdict against the Santa Fe, was of the opinion that the evidence showed, as a matter of law, that plaintiff had been discharged by the Santa Fe, and that under Article IV of the Collective Bargaining Agreement, the Santa Fe was required, before dismissing the employee, to afford her a formal investigation, and hearing.

Article IV of the Collective Bargaining Agreement provides that an employee who has been in the meploy of the company for 90 days or more 'shall not be dismissed or otherwise disciplined without a formal investigation, which shall be promptly held, unless such employee shall accept such dismissal or other discipline in writing and waive formal investigation.' The same section requires that prior to such formal investigation the employee shall be notified of the precise nature of the charge, and then provides for a hearing and for a transcript of such hearing, if desired. The Article then provides for an appeal up to the highest official designated by the company to hear such appeals. The same Article also provides that an employee who considers himself unjustly treated may have his complaint handled as a grievance up through the regular channels of appeal, but to avail himself of this procedure the employee must file his complaint with his superior officer within seven days of the occurrence of which complaint is made. As already pointed out, it was the theory of the trial court that the Santa Fe dismissed plaintiff without the formal investigation and hearing required by this Article, and that this amounted, as a matter of law, to a wrongful discharge. Thus a verdict was directed on that issue. The Santa Fe contends that the evidence on the issue of wrongful discharge was in conflict and for that reason the issue should have been submitted to the jury. In this same connection Santa Fe also contends that the evidence is capable of being interpreted as showing that plaintiff, in fact, breached and repudiated the employment contract. These contentions require a reference to the evidence.

The record shows without conflict that plaintiff was employed by the Santa Fe from 1943 through March 7, 1949. As already pointed out, her working conditions with the company were governed by the Collective Bargaining Agreement. That agreement provides for the seniority rights of employees and provides for the 'bumping,' or displacing of an employee by a qualified senior employee. An employee whose position is lost to him because of a reduction in force, abolishment of the position, or displacement by a senior employee in turn has the right to 'bump' or displace a junior employee holding a position within the senior employee's fitness, ability and qualifications.

So far as the present case is concerned, between 1943 and February of 1948 nothing occurred of any importance except that plaintiff gained the seniority of these years of service. In February of 1948 plaintiff was 'bumped' off a job in the cashier's department, Job 124. Plaintiff then 'bumped' a junior employee in the expense and billing department--Job 134. Plaintiff testified that this displeased Mr. Nesbitt, chief clerk of the freight agency. Nesbitt was named as a defendant but has been dismissed from the case. In May of 1948, Job 134 was abolished. A job such as this one is abolished by Nesbitt making such a recommendation to Linsley, the terminal freight agent, who in turn recommends it to Hobdy, chief clerk to the Superintendent. Linsley and Hobdy were also named as defendants but also were dismissed from the case.

Plaintiff testified that when her job was abolished she wanted to 'bump' a comptometer job but was discouraged by Nesbitt. She 'bumped' Job 100, a billing job, and this made Nesbitt angry. Nesbitt accused her of making 201 mistakes on this job, whereas, in fact, she had only made one, and offered her a resignation to sign, but she refused to sign it. Nesbitt recommended to the Superintendent of the department that plaintiff be penalized 10 demerits for...