Wise v. Southern Pac. Co.

• Decision Date: 06 December 1963
• Citation: 35 Cal.Rptr. 652,223 Cal.App.2d 50
• Court: California Court of Appeals Court of Appeals
• Parties: , 49 Lab.Cas. P 51,051 Wayne E. WISE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Association of American Railroads, a corporation, Harry J. Hitke and W. A. Smith, Defendants and Respondents. Civ. 20669.

Page 652

35 Cal.Rptr. 652

223 Cal.App.2d 50, 49 Lab.Cas. P 51,051

Wayne E. WISE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Association of American Railroads, a corporation, Harry J. Hitke and W. A. Smith, Defendants and Respondents.

Civ. 20669.

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

Dec. 6, 1963.

Perkins, Carr & Anderson, Sacramento, for appellant.

W. A. Gregory, William R. Denton, San Francisco, Ronald K. Millar, Palo Alto, for respondents.

SULLIVAN, Justice.

Plaintiff appeals from a judgment of dismissal entered after the sustaining without leave to amend of a demurrer to his second amended complaint.

Said complaint is in two counts: the first against defendant Southern Pacific Company ¹ alone for damages for the wrongful discharge of plaintiff from its employ; and the second against all defendants for damages resulting from a conspiracy to obtain such wrongful discharge. ²

The first count alleges in substance as follows: That plaintiff, a member of the Brotherhood of Railroad Carmen, hereafter referred to as the Brotherhood, was employed by defendant Company as a railroad carman; that during all times mentioned in said complaint there was in full force and effect between the Brotherhood and defendant Company a written collective bargaining agreement covering the terms of employment between plaintiff and said defendant, a copy of such agreement being attached to the complaint and incorporated by reference; that pursuant to certain rules and related sections of said agreement, plaintiff was not to be discharged by said defendant except for just cause and without first having a fair hearing by a proper officer of said defendant; that pursuant to specified rules of said agreement, plaintiff, at a reasonable time prior to any such hearing, was to be apprised in writing of the precise charge against him, be given a reasonable opportunity to secure witnesses and have the right to be represented; and that plaintiff being at all times a committeeman of the Brotherhood and delegated to represent the employees covered by the agreement, defendant, pursuant to a specified rule thereof, agreed not to discriminate against any such union official.

The second amended complaint further alleges that on January 21, 1960, plaintiff by written notice from defendant was accused by said defendant of acts of disloyalty to defendant and violation of Rule 803 of the General Rules and Regulations of defendant; ³ that thereafter hearings were held on said charge at which various persons appeared and gave testimony and various written statements of other persons were received in evidence; that at the conclusion of said hearings, 'said hearing officer did wrongfully find that plaintiff had violated said Rule 803' and defendant Company did thereupon discharge plaintiff; that plaintiff exhausted all his administrative remedies by appealing his discharge to the highest officer designated to hear appeals; and that such officer thereafter an on May 24, 1960, denied plaintiff's appeal for reinstatement and affirmed his discharge.

It is also alleged that plaintiff complied with all the terms and conditions of his employment, that he did not violate Rule 803 and that he was not guilty of disloyalty to said Company.

The second amended complaint further alleges: That plaintiff's discharge was wrongful and in violation of said agreement in that defendant and its agents and officers did discriminate against plaintiff contrary to the provisions of Rule 41 of said agreement and did deny plaintiff a fair hearing in that the hearing officer failed to consider the evidence presented in arriving at his decision; that the hearing officer failed to permit plaintiff to cross-examine witnesses presented against him and to be confronted by his accusers; that said hearing officer conducted the examination of witnesses in an unfair manner and failed to permit plaintiff to have reasonable continuances to produce evidence on his own behalf; that said hearing officer and other officers of said defendant hearing the appeals knowingly and intentionally received written and oral testimony known by them to be false and untrue and to have been wrongfully induced for the sole purpose of securing plaintiff's discharge.

The first count concludes with allegations that plaintiff has suffered loss of earnings and of certain hospital, medical and pension rights and that by reason of his discharge has suffered damages in the sum of $100,000.

The second count of the second amended complaint against all defendants including defendant Company (see footnote 2, ante) incorporates by reference all allegations of the first count except those relating to the exhaustion of administrative remedies and except the demand for $100,000 compensatory damages. ⁴ It then alleges in words and in substance as follows: On information and belief that prior to January 21, 1960 (date of written notice of accusation) defendant Company 'did conspire and agree with its co-defendants herein to bring false charges against plaintiff by wrongfully accusing plaintiff of disloyalty and violation of Rule 803 of the General Rules and Regulations of the SOUTHERN PACIFIC COMPANY; and did agree and conspire to deprive plaintiff of a fair hearing on said charges, all for the purpose of securing the discharge of plaintiff from his employment, as aforesaid, in violation and breach of the aforesaid collective bargaining agreement'; that pursuant to said unlawful agreement defendants Association, Smith and other employees of defendant Association induced certain persons to give false statements and to appear at the hearing and give false testimony about plaintiff; that pursuant to said unlawful agreement defendant Company by the above-mentioned written notice made certain false charges against plaintiff; that said defendant Company 'aided and abetted by its co-defendants' knowingly and intentionally received false statements and testimony at the hearing (as alleged in the first count), deprived plaintiff of a fair hearing and wrongfully discharged him.

It is alleged that the performance of defendants' acts 'was motivated by malice and was intentional' and was for the purpose and objective of discriminating against plaintiff as a committeeman of the Brotherhood and obtaining his discharge; and that plaintiff is entitled to and claims punitive damages against defendants in the sum of $50,000.

Defendants' demurrers assert that each count of the complaint fails to state facts sufficient to constitute a cause of action and is uncertain, ambiguous and unintelligible in various particulars. The court sustained the general and special demurrers of each defendant without leave to amend.

First count against defendant Southern Pacific Company.

It is settled that a railroad employee may bring and maintain a common law or, where a state so provides, statutory action for damages for his wrongful discharge from employment in breach of a collective bargaining agreement. A state court has jurisdiction to adjudicate such cases and is not barred from doing so by the Railway Labor Act. (45 U.S.C.A. § 151 et seq.) However neither state nor federal courts have jurisdiction to interpret a collective bargaining agreement or to order reinstatement of an employee, exclusive jurisdiction over such matters being vested in the National Railroad Adjustment Board. (Moore v. Illinois Central R. Co. (1941) 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; Slocum v. Delaware, Lackawanna & Western R. R. Co. (1950) 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Roberts v. Western Pacific R. Co. (1951) 104 Cal.App.2d 814, 815, 232 P.2d 563; Roberts v. Western Pacific R. Co. (1951) 104 Cal.App.2d 816, 819-820, 232 P.2d 560, cert. denied 342 U.S. 906, 72 S.Ct. 298, 96 L.Ed. 678; Stroman v. Atchison, T. & S. F. Ry. Co. (1958) 161 Cal.App.2d 151, 165, 326 P.2d 155; Russell v. Ogden Union Ry. & Depot Co. (1952) 122 Utah 107, 247 P.2d 257, 260.) Defendant Company does not challenge these principles establishing the jurisdiction of the court below.

It is also settled that 'California law requires an employee to exhaust his administrative remedies under his employment contract before he may bring an action for damages for violation of such contract. [Citations.]' (Stroman v. Atchison, T. & S. F. Ry. Co., supra, 161 Cal.App.2d 151, 166, 326 P.2d 155, 164.) Such requirement has been met in this case.

The general rules of pleading applicable to actions for breach of contract obtain in actions for breach of contracts of employment. (Palmer v. Harlow (1921) 52 Cal.App. 758, 763, 199 P. 844.) The essential elements required to be pleaded therefore in an action for breach of employment contract are: (1) the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) the resulting damage to plaintiff. (Smith v. Royal Mfg. Co. (1960) 185 Cal.App.2d 315, 325, 8 Cal.Rptr. 417; M. G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263, 274, 343 P.2d 438; 2 Witkin, Cal. Procedure, p. 1226.) A complaint in such an action will be held sufficient as against a general demurrer 'if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants * * * although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, * * *. In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.' (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639, 14 Cal.Rptr. 496, 498; Hardy v. San Fernando Valley Chamber of Commerce (1950) 99 Cal.App.2d 572, 577-578, 222 P.2d 314.)

It is obvious that in the case at bench the first two elements of the cause of action are adequately pleaded. As to the contract, where a written instrument is the foundation of a...