Youmans v. Charleston & W. C. Ry. Co.

• Decision Date: 08 January 1935
• Docket Number: 13967.
• Parties: YOUMANS v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

178 S.E. 671

175 S.C. 99

YOUMANS v. CHARLESTON & W. C. RY. CO.

No. 13967.

Supreme Court of South Carolina

January 8, 1935

Appeal from Common Pleas Circuit Court of Hampton County; S.W. G Shipp, Judge.

Action by Melvin Youmans against the Charleston & Western Carolina Railway Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

M. G McDonald, of Greenwood, and J. W. Manuel and C. Lester Thomas, both of Hampton, for appellant.

George Warren and Randolph Murdaugh, both of Hampton, for respondent.

STABLER Justice.

This action, held by the trial judge to be one in breach of contract, was brought in the court of common pleas for Hampton county on July 9, 1932. It was alleged, inter alia, that: "The plaintiff for the period of the last six years has been, through his rights and under his agreement, contract and understanding with the defendant, a section foreman of the defendant, and has complied with every rule, regulation and requirement of the defendant company and has received an average salary of about one hundred twenty-five ($125.00) dollars per month. * * * That on the 12th or 14th day of June, 1932, the defendant, through its executives and officers, wilfully, maliciously, fraudulently, recklessly, negligently, and with a total and complete disregard of the contracts, agreements and understandings by and between the plaintiff and the defendant, and by and between the committee of maintenance of way employees on behalf of this plaintiff and others in like circumstances, and the defendant, and in utter disregard of the rights of the plaintiff * * * wrongfully discharged and dismissed plaintiff from the services of the defendant without a hearing, without notice, without cause or excuse, without investigation, and without having the privilege of bringing to the investigation or hearing, if any investigation or hearing was had to assist him, one or more employees of his own selection, and without being given a copy of the proceedings of the investigation or a letter stating the cause of discipline, although the same was requested."

The defendant denied every material allegation of the plaintiff, and alleged that the work performed by him as section foreman was of such poor character that repeated complaints were made thereabout; that, rather than discharge him, although his services were unsatisfactory, and he was so notified, the defendant on July 15, 1932, "demoted him from section foreman to that of apprentice laborer" at a salary of approximately $75 per month; but that he refused, upon notice of such demotion, to accept the new place, and voluntarily quit the service of the company.

The trial of the case, October, 1933, resulted in a verdict for the plaintiff for $5,000. From judgment entered thereon the defendant excepts and brings error.

The exceptions, of which there are fourteen, will be considered in the order in which they appear in the record for appeal. Eight of these charge Judge Shipp with error in refusing to direct a verdict for the defendant upon the grounds:

First. That the only reasonable inference to be drawn from the testimony was that the plaintiff was not discharged, but voluntarily resigned from the service of the company.

We think the court was correct in refusing to grant the motion on this ground. In addition to plaintiff's own testimony that he was discharged by the company, such inference might properly be drawn from letters written him by the assistant engineer and the roadmaster of defendant. While it is true that the engineer wrote him on June 13, 1932, that "I can offer you position as apprentice on extra gang if you desire same," still he directed him in the same letter "to turn over all company supplies and keys to tool house on this date to Mr. Garrett." Whether this was intended as, or amounted to, a discharge of the plaintiff, was a question for the jury.

Second. "That the evidence shows that the contract of hire between plaintiff and the defendant was for an indefinite term and was, therefore, terminable at the will of either party."

In Johnson v. American Railway Express Company, 163 S.C. 191, 161 S.E. 473, 475, where a similar question was involved, it was held that ""there is no doubt of the correctness of the general proposition that if an employment is for an indefinite term, and each party may terminate it at his pleasure, the discharge even without cause will afford the employee no ground of complaint." In that case, however, the plaintiff invoked for his benefit an agreement between the defendant company and its employees represented by the American Federation of Express Workers, rule 29 which was as follows: "An employee who has been in the service for more than ninety days or whose application has been formerly approved shall not be disciplined or dismissed without investigation, at which investigation he may be represented by an employee of his choice or one representative (as per rule 84) of an organization of which he may be a member. He may, however, be held out of the service pending such investigation. He shall have at least twenty-four hours advance notice of such investigation, which shall be held within seven days of the date when charged with the offense or held from service. A decision will be rendered within seven days after completion of investigation."

And rule 37: "If the final decision decrees that charges against the employee were not sustained, the record shall be cleared of the charge; if suspended or dismissed, the employee shall be reinstated and paid for the time lost."

The court, in considering these clauses of the agreement as affecting defendant's claim that it could terminate the contract, because it was for an indefinite term, at its pleasure, said: "While the term of service of the plaintiff was clearly indefinite, it appears that the clause in the agreement between the union and the express company had the effect of limiting the indefiniteness of the term and the consequent right of the company to discharge an employee, with or without cause, by providing, in effect, that the company could not discharge an employee without cause, at all, and that it could not discharge one with cause until an investigation establishing the alleged charge against him had been formally made after due notice to the employee and an opportunity to appear personally and with a representative. We think that this view is sustained by the further provision in the agreement that if the charge should not be sustained the employee should be restored to his position."

The court further observed:

"The question then is to be decided, not upon the issue whether the term was definite or indefinite, but whether an employee who is a member of the union is in a position to enforce the provisions of an agreement entered into between the carrier and the union, to which he was not a party, but which plainly was made for his benefit.

It has been held by this court in numerous cases that where a contract is made between two persons, and there is in it a provision that enures to the benefit of a third person not a party to the contract, and perhaps ignorant of its execution, he acquires an enforceable interest in the contract so far as the provision of his interest is concerned."

See, also, Marshall v. Railway Company, 164 S.C. 283, 162 S.E. 348, 353.

In the case at bar, a similar agreement between the defendant company and union of employees, "governing the employment and working conditions of employees in the Maintenance of Way Department," was invoked by the plaintiff; certain pertinent provisions thereof being set out in his complaint. Rule 24 reads as follows: "An employee disciplined, or one who considers himself unjustly treated, shall have a fair and impartial hearing, provided written request is presented to his immediate superior within ten (10) days of date of advice or discipline, and the hearing shall be granted within ten (10) days thereafter."

And rule 29: "If the final decision decrees that charges against employees are not sustained, the employee shall be reinstated and reimbursed for any loss in wages resulting therefrom."

In disposing of this ground of the motion, Judge Shipp said:

"This case differs from the Johnson case and the Marshall case, in that there is no paragraph in the contract set out in the complaint, or that has been put in evidence forbidding the railroad to discharge or demote any employee without first having an investigation. Therefore, it differs from those other cases; but yet it is practically the same for it guarantees to every employee who feels himself aggrieved by any act of the railroad company an investigation and a fair trial, at which he has a right to be represented by certain representatives; provided, however, he makes

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