Tinnon v. Missouri Pacific Railroad Company, Civ. A. No. 414.

• Decision Date: 21 November 1958
• Docket Number: Civ. A. No. 414.
• Citation: 167 F. Supp. 675
• Parties: W. H. TINNON, Plaintiff, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Western District of Arkansas

167 F. Supp. 675

W. H. TINNON, Plaintiff, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant.

Civ. A. No. 414.

United States District Court W. D. Arkansas, Harrison Division.

November 21, 1958.

Thomas B. Tinnon, Mountain Home, Ark., Charles R. Garner, Ft. Smith, Ark., for plaintiff.

Herschel H. Friday, Jr., Little Rock, Ark., for defendant.

JOHN E. MILLER, District Judge.

The plaintiff, W. H. Tinnon, is a citizen of Arkansas and resides in the town of Cotter in Marion County, Arkansas. The defendant is a corporation organized and existing under the laws of the State of Missouri, and is engaged in the operation of railroads in the State of Arkansas.

On May 29, 1957, the plaintiff filed his complaint in which he alleged that on or about October 1, 1910, while a citizen and resident of the State of Missouri, he entered into a contract of employment with the defendant as a railroad locomotive fireman in which it was agreed, among other things, that plaintiff would continue in the employment of defendant under the terms and conditions of the written contract and agreement between the defendant and the Brotherhood of Locomotive Firemen and Engineers, a duly constituted labor organization, which written agreement was for the benefit of the plaintiff and others similarly situated; that the plaintiff at all times material herein is and has been a member in good standing of the Brotherhood of Locomotive Firemen and Engineers and/or Brotherhood of Locomotive Engineers; that contracts or agreements made or existing at all times material herein between the defendant and either of the said brotherhoods were made and are kept in force for the benefit of the plaintiff and other members of the brotherhoods.

That on about August 22, 1930, the Brotherhood of Locomotive Engineers entered into a written contract and agreement with the defendant for the benefit of the plaintiff and other employees of the defendant by the terms and conditions of which it was provided in Article 44 thereof, "no engineer shall be discharged, suspended or have notation placed against his record without just or sufficient cause." That this contract was in full force and effect on November 7, 1955.

That the plaintiff entered upon the performance of his contract and duly performed all of the conditions of the contract, agreement of scheduled wages at any and all times in force and effect until he was discharged without just cause by the defendant. The plaintiff further alleged:

"On or about the 18th day of November, 1955, while plaintiff was engaged in duly carrying out his contract of employment, the defendant, without any fault on the part of the plaintiff, and specifically without just or sufficient cause, did discharge plaintiff from its employment and refused to permit him to carry out his agreement."

That immediately prior to his discharge the plaintiff was employed as a locomotive engineer and was earning, under the terms and conditions of his contract of employment, $8,500 annually; that by reason of the wrongful discharge plaintiff has been damaged in the sum of $12,625 that he would have and could have earned between the 18th day of November, 1955, and the 18th day of May, 1957, as wages; that plaintiff was damaged in the further sum of $96,000 that he would and could have earned between May 18, 1957, and May 18, 1969, his reasonable life expectancy.

The prayer is that plaintiff recover $108,000, with interest and costs.

In due time the defendant filed its answer in which the defendant admitted that the plaintiff was originally employed by defendant as a locomotive fireman in 1910, but denied that under the contract of employment plaintiff was to continue in the employment of the defendant under the terms and conditions of the contract or agreement between defendant and the Brotherhood of Locomotive Firemen and Engineers.

The defendant also denied that the contract or contracts between it and the labor organizations was made for the benefit of the plaintiff.

Admitted that an agreement was entered into effective September 1, 1930, between the Brotherhood of Locomotive Engineers and the defendant and that Article 44 of said agreement is as follows:

"Article 44 — Discipline, Appeal and Representation.

"a. No engineer shall be discharged, suspended or have notation placed against his record without just or sufficient cause. When an engineer is charged with an offense which would warrant his suspension or discharge, if sustained, no suspension or discharge shall be inflicted (except suspension pending investigation) without a thorough investigation within five (5) days before the official having jurisdiction, at which he may have an engineer of his choice assist him in the investigation, who will be permitted to examine witnesses. He or his representative shall be furnished with a copy of the evidence brought out at such investigation, which will be the basis for discipline administered. When an engineer is called for investigation he shall be notified in advance for what purpose he is called.

"b. If the engineer is not satisfied with the result of the investigation, he shall have the right to appeal his case through the General Chairman to the General Superintendent and then, if necessary, to the General Manager. In case discharge or suspension is subsequently found to be unjust, he shall be reinstated and, if a regular engineer, be paid for all time he would have made on his engine or run, during the period of suspension, or discharge; if an extra man, he will be paid for time lost at rate of service last engaged in. If the notation against his record is decided to be unjust, it will be eliminated. When a notation is entered against an engineer's record, he will be furnished a copy and will receipt for it "c. Any complaint or evidence against an engineer which may affect his rights or employment shall be in writing.

"d. When an engineer requests additional time for the investigation, it will be granted and no compensation for such time will be allowed. When the Company requires additional time, the engineer will be allowed compensation for such time, whether found guilty or not."

That the agreement above referred to was in effect on the 7th day of November, 1955, and was in effect at the time of the trial. Denied that the plaintiff was discharged from his employment without just cause and admitted that on or about November 16 the plaintiff was dismissed from the service of the defendant, and alleged that said dismissal was just and for sufficient cause and based upon admitted violations of the operating rules then in effect. The prayer of the answer was that the plaintiff recover nothing and that the complaint of plaintiff be dismissed.

After some two or three pre-trial conferences the cause proceeded to trial to a jury. The trial of the case to a jury began on September 10, 1958, and was concluded the next day, September 11.

At the conclusion of the plaintiff's testimony, the defendant filed a motion to dismiss and as grounds therefor stated:

"A. Under the undisputed facts the plaintiff's contract of employment was made in Arkansas and/or was to be performed in Arkansas, and therefore, the substantive law of Arkansas applies.

"B. Under the substantive law of Arkansas the plaintiff's cause of action cannot be maintained and must be dismissed."

At the conclusion of all of the testimony, the defendant moved for a directed verdict on the following grounds:

"A. Under the undisputed facts there being no substantial evidence to the contrary, the plaintiff was given a thorough and a fair investigation after proper notice, and based upon the admitted rule violations at the investigation, the defendant had the legal right to discharge the plaintiff.

"B. There is no substantial evidence that the defendant acted arbitrarily so under the undisputed facts, the action of the defendant in discharging the plaintiff was a prerogative of management concerning which a jury is not entitled to substitute its judgment for that of the defendant.

"C. Under the facts in this case the jury is not entitled to determine whether there was a legal justification to discharge.

"D. Under the undisputed facts, the plaintiff violated certain rules, and there being no substantial evidence that the defendant acted arbitrarily a jury cannot be allowed to substitute its judgment for that of the defendant as to the nature or extent of the discipline administered.

"E. The essential facts are not in dispute, so the Court should interpret the contract and instruct the jury as a matter of law that there were rule violations and the defendant had a legal right to administer the discipline assessed against the plaintiff.

"F. Under the undisputed facts the plaintiff's contract of employment was made in Arkansas and/or was to be performed in Arkansas, and therefore, the substantive law of Arkansas applies, and under the substantive law of Arkansas the plaintiff's cause of action cannot be maintained and must be dismissed."

Action on the motion to dismiss was reserved by the court and the motion for directed verdict in favor of defendant was denied. The case was argued and submitted to the jury which considered the case until the afternoon of September 12, when the jury reported that it was unable to reach a verdict, and an order of mistrial was entered.

On September 20, 1958, the defendant, pursuant to the provisions of Rule 50, F.R.Civ.Proc., 28 U.S.C.A., moved the court to enter judgment for it in accordance with its motion for a directed verdict filed at the close of all of the evidence. This motion substantially reiterates the grounds as alleged in the motion for a directed verdict.

On October 2, 1958, prior to the consideration by the court of the motion of defendant for judgment in accordance with its motion for a directed verdict, the plaintiff filed his motion for leave to dismiss without prejudice, which motion was on October 18, 1958, denied, and the questions...