Willis v. Asbury Transp. Co.

• Decision Date: 19 November 1963
• Docket Number: Nos. 3145,3159,s. 3145
• Citation: 386 P.2d 934
• Parties: James K. WILLIS, Appellant (Plaintiff below), v. ASBURY TRANSPORTATION CO., a Corporation, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 934

386 P.2d 934

James K. WILLIS, Appellant (Plaintiff below), v. ASBURY TRANSPORTATION CO., a Corporation, Appellee (Defendant below).

Nos. 3145, 3159.

Supreme Court of Wyoming.

Nov. 19, 1963.

Ross & Buge, William R. Buge, Cheyenne, for appellant.

Henderson, Godfrey & Kline, David D. Uchner, Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff, James K. Willis, brought this action against defendant, Asbury Transportation Company, seeking to recover damages for the alleged breach of a contract of employment. The case was tried to the court below, sitting without a jury, and at the conclusion of the trial the court found generally for the defendant and against the plaintiff and from the adverse judgment plaintiff appeals.

By way of factual background to the controversy, the record discloses that for several years plaintiff was employed as a truck driver by Denver-Chicago Trucking Company and was experienced and qualified in transporting and handling petroleum products. Defendant was a trucking concern and in September 1960 had entered into contracts for the transportation and handling of cryogenic products consisting principally of liquid nitrogen, oxygen, and hydrogen at missile bases near Cheyenne, Wyoming, and near Spokane, Washington. At that time defendant was in need of truck driver-technicians to operate its equipment in the performance of its contracts and some preliminary discussion was had by the plaintiff and defendant's terminal manager at Cheyenne concerning employment. Following such discussion the defendant agreed to employ plaintiff in the capacity mentioned and plaintiff reported for work at Cheyenne on September 26, 1960. It was understood that plaintiff would undergo a training period of some two weeks and would then be assigned to the job at Spokane. However, by mutual consent plaintiff was sent to Spokane on September 29, 1960, to complete his training and it was during that period that difficulty between the parties occurred. As a result plaintiff was discharged by defendant's Spokane Division Manager, Mr. Eugene Adams, on October 14, 1960.

In his complaint plaintiff alleged that under an oral agreement between the parties he was employed for a term of one year or until work on the Spokane project was completed, and that his discharge was without cause--in violation of the terms of the agreement. By its answer defendant denied that it had employed plaintiff for any fixed period of time except for a thirty-day trial period which was evidenced by a memorandum signed by plaintiff under date of September 22, 1960, and which provided as follows:

'The undersigned hereby understands that he is hired on a thirty-day trial period and that if there is any falsification of references or misstatements on the application or if he is found to be physically unfit, or fails to prove himself qualified to discharge the duties of his position, it will be sufficient cause for Asbury Transportation Co., Asbury System and/or Asbury Contractors, Inc. to terminate his services without recourse.'

As justification for the discharge defendant alleged that plaintiff was unable to qualify in the proper handling of cryogenics.

The principal claim of error advanced by plaintiff is that the findings of the trial court are not supported by and are contrary to the evidence. In turn, this claim is directly related to plaintiff's further contention that incompetent evidence is the only evidence of record that supports the finding of the trial court that the discharge of plaintiff was justified. In this connection it should be stated that plaintiff claims that the real cause of his discharge was the false accusation by defendant's manager of its Mountain States Central Division, Mr. Frank Eyraud, that plaintiff was 'spying' for his former employer. Defendant, on the other hand, claims that plaintiff was discharged for 'unsafe Handling of Cryogenics.'

The evidence offered by defendant through the witness Frank Eyraud relating to the cause of discharge, and challenged by plaintiff as to its competency, consisted of the substance of a telephone conversation between Eyraud and the said Eugene Adams and Exhibit No. 2, a mimeographed form of instrument signed by Adams entitled 'REQUEST FOR PAY-OFF,' dated October 15, 1960, and among other things reciting that plaintiff was discharged for 'unsafe Handling of Cryogenics' and for 'unsafe habits.' While a large portion of plaintiff's brief is devoted to the claimed error of admitting such evidence over appropriate objection, we remind counsel that in order to obtain a reversal here on such ground, even though his complaint might be well founded, he must go further and demonstrate that such claimed error prejudiced the substantial rights of plaintiff. Rule 72(g), W.R.C.P.; and Butcher v. McMichael, Wyo., 370 P.2d 937, 939. On the record we conclude that this has not been accomplished.

The claimed error could have significance only if it had some direct effect on plaintiff's tenure as fixed by the agreement of employment. We turn to that question. As stated, plaintiff claimed an oral agreement of approximately one year's duration. Defendant, however, denied this and asserted that plaintiff was hired on the basis of a thirty-day trial period only, in keeping with the terms of the memorandum. The testimony relating to the tenure claimed by plaintiff was in conflict. Plaintiff testified that Junis Elmore, employing agent of defendant, guaranteed him approximately one year's employment at Spokane. On the other hand, Elmore testified, 'We never guarantee anyone anything on the job.' As a result, the finding of the trial court that plaintiff had no such agreement will not be disturbed here unless it appears that such finding was clearly erroneous or contrary to the great weight of the evidence. Arnold v. Jennings, 75 Wyo. 463, 296 P.2d 989, 991. We find nothing in the record here that would warrant a holding that the court...