Opinion
No. 7075.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, POLK COUNTY, JAMES P. HAWKINS, J.
E. G. Nahler, St. Louis, Douglas Douglas, Bolivar, Donnelly Donnelly, Lebanon, for appellant.
Jo B. Gardner, Monett, for respondent.
This is an action for damages for breach of employment contract. The cause was tried in the Circuit Court of Polk County, Missouri, resulting in a verdict and judgment for plaintiff for $5,000. Defendant appealed.
The petition states that on July 25, 1947, plaintiff was an employee of the defendant as locomotive engineer and had been so employed since July 14, 1917, and, at that time, had a seniority in excess of thirty years; that on July 25, 1947, there was in force and effect, as a part of plaintiff's employment contract with defendant, an engineer's schedule; that Article 52 thereof, entitled "Discipline" provided in part:
"Engineers shall not be discharged, suspended or given demerit marks without just and sufficient cause. * * *"
The petition states that plaintiff was discharged from the defendant's employ on July 25, 1947, in violation of the terms of said contract of employment and as a result plaintiff was damaged in the sum of $12,000.
The answer admits that plaintiff was employed by defendant as alleged in the petition but denies each and every other allegation. The answer pleads affirmatively that there was an approved rule, which had been in effect for more than thirty years, which applies to all employees of defendant, including plaintiff, "* * * that an approved leave of absence in writing is required in every instance of any employee entitled to be working who is absent for thirty days or more; * * *" that plaintiff did not comply with this rule and by reason thereof is not entitled to recover.
In this opinion we will refer to respondent as plaintiff and appellant as defendant, being the positions they occupied in the lower court.
In deciding the issues raised on this appeal we will state such parts of the evidence as we deem necessary for decision.
Defendant's assignment of error No. 1 complains that the trial court erred in refusing to sustain its motion to dismiss plaintiff's petition:
(a) Because the petition fails to state a claim upon which relief can be granted.
The petition pleads that a part of plaintiff's contract of employment provided: "Engineers shall not be dismissed, suspended or given demerit marks without just and sufficient cause;" that defendant discharged plaintiff from his employment on July 25, 1947, in violation of the terms of said contract of employment.
Defendant contends that the pleading of the terms of the contract and then the allegation that plaintiff was discharged in violation of such terms, pleads nothing more than a conclusion regarding the alleged breach of contract; that the allegation is not supported by a statement of facts.
To support this contention defendant cites Section 509.050 RSMo 1949, V.A.M.S., which statute reads:
"A pleading which sets forth a claim for relief, * * * shall contain a short and plain statement of the facts showing that the pleader is entitled to relief, and a demand for judgment for the relief to which he deems himself entitled. * * *"
In Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 27, the court makes the following statement of law:
"We must appreciate and endeavor to effectively use the various means provided for attaining the objectives of the Civil Code of Missouri. It has been appropriately said that the primary objectives of the Code are to simplify legal procedure; to expedite trials and appellate reviews; and to lessen the expense of litigation — all to the end that substantial justice will be done between parties litigant. * * *; the merits of a case are to be passed upon and reviewed. * * * The aim is to determine what are the controversial issues before the trial begins, and limit the trial to them. * * * But the pleadings continue to be of the greatest utility in defining the issues of a case. And it is not to be understood that the petition in stating plaintiff's claim has lost its usefulness as a means of arriving at the primary objectives of the Code. On the contrary, it is to be understood that the petition is to be of the same usefulness as before, or of more usefulness than before, in plainly stating the facts upon which the plaintiff relies as showing that he is entitled to recover. It would not be helpful to the cause of substantial justice to ignore or abandon what learning and experience have found to be a plain statement of the facts of a claim, or of a defense. * * *
"By a pleader's plain statement of the facts, the trial court and the adverse party may see what principles of substantive law are applicable to the facts so plainly stated, and the adverse party may at once be enabled to ascertain from the plain statement of facts what the determinative facts are which he may believe himself to be able to controvert, or to confess and avoid — thus (by the aid of the pleadings alone) are some or all of the controversial trial issues isolated, the trial expedited, and the expense of the trial lessened. * * *"
Defendant cites Marranzano v. Riggs National Bank of Washington, D.C., 87 U.S.App.D.C. 195, 184 F.2d 349, 351. We think this case is in point that the allegation in the case at bar states a conclusion of law. The court said, in speaking of the allegations of the petition:
"* * * `The discharge of the plaintiff was wrongful, without good and sufficient cause or justification, and in violation of the provisions of the aforesaid agreement.'
"This was nothing more than a conclusion of the pleader, since it was not supported by a statement of facts constituting the alleged breach of the contract. * * *"
If we follow the law as stated in the above case we would have to hold that the petition did not state a claim but the authorities are not all agreed as to the pleadings necessary to state a claim for wrongful discharge. Our courts have held that an action for wrongful discharge is in contract. The gist of this action is wrongful discharge. Reduced to its simplest terms, plaintiff's theory of this case is that he has a cause of action against defendant because he was discharged in violation of the terms of an express contract pleaded. Unless he was discharged in violation of said contract and the express terms therein, he has no cause of action. The burden of proving that his discharge was in violation of the terms of the contract pleaded remains upon the plaintiff. Craig v. Thompson, Mo.Sup., 244 S.W.2d 37, 42.
In 56 C.J.S., Master and Servant, § 52, Par. 2, p. 448, the law is stated:
"In an action for a wrongful discharge in breach of a contract of employment, the complaint must set forth all the essential elements of a valid contract. * * *
"In an action for damages for breach of contract by wrongful discharge, the wrongful discharge must be averred as the breach of the contract and as the fact constituting the cause of action. However, the ground on which the discharge was actually made need not be specifically alleged, and it has been held that a specific averment that the discharge was without cause is unnecessary since a discharge before termination of the contract period is prima facie a violation of the agreement. A formal dismissal need not be alleged or proved; an allegation of the denial and repudiation of the contract is sufficient. * * *
"* * * An allegation of performance by the employee is unnecessary, however, in an action for damages for breach of contract, as the cause of action is not predicated on performance, but on defendant's prevention of performance. * * *"
It is generally true that the plaintiff must allege the ultimate facts which must be proven in order to entitle him to recover. The question of whether or not plaintiff was discharged without good and sufficient cause in violation of his contract with defendant was for the jury. Wilson v. St. Louis-San Francisco Ry. Co., Mo.Sup. 247 S.W.2d 644, 649.
We hold that the petition pleads the express contract which provides that plaintiff shall not be dismissed without just and sufficient cause and that defendant violated that contract on July 25, 1947, pleaded ultimate facts which constituted a cause of action and we find against defendant on this assignment of error.
Under defendant's assignment of error No. II, it complains of the sufficiency of the evidence to support the verdict. This assignment of error raises a very serious objection.
In Johnson v. Thompson, Mo.App., 236 S.W.2d 1, 7, the law governing the sufficiency of the evidence is stated thus:
"The law governing the sufficiency of evidence is very ably stated in Ford v. Louisville N. R. Co., 355 Mo. 362, 196 S.W.2d 163, 167.
"`It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.' * * *
"In considering the sufficiency of the testimony, the evidence of the plaintiff is to be taken as true and all reasonable inferences that can be drawn therefrom and any evidence offered by the defendant that supports the plaintiff's case. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950."
Under this allegation of error we think the more serious objection is stated under (d) which reads as follows:
"Under the law and the evidence, there is no probative evidence that plaintiff was discharged from the employment of defendant."
In Craig v. Thompson, supra, the law is stated in 244 S.W.2d on page 41:
"* * * Whether a certain state of facts as to which there is no dispute amounts to a legal justification for discharge, i. e., whether the discharge was or was not wrongful, is a question of law for the court. But where the facts are in dispute as to whether the discharge was or was not wrongful, the question is always one for the jury under proper instructions. * * * "
In other words, we are confronted, first, with the question as to whether or not there is any dispute in the evidence as to the facts constituting the alleged wrongful discharge.
Plaintiff's petition states that he was discharged in violation of the contract of employment in that he was dismissed from his employment without just and sufficient cause.
There is no dispute as to plaintiff's employment and there is no dispute that plaintiff had seniority of more than thirty years. There is no dispute in the evidence as to the facts under which plaintiff claims to have been discharged. Plaintiff's evidence shows that on July 25, 1947, between 7:30 and 7:45 A.M., he was the engineer on defendant's train No. 10, bringing the same into Union Station in St. Louis; that this passenger train contained some nineteen coaches and that under the regulations had to be divided before it could be brought into Union Station because only about twelve cars can be brought into the station by one engine; that the division of this train took place at Tower Grove. On the morning in question, Mr. Shaffer, Superintendent of the defendant railway, had his private car attached to the back end of plaintiff's train. He made a complaint charging plaintiff with rough handling of train No. 10 at Tower Grove, with engine 4402, about 7:43 A.M., July 25, 1947.
Plaintiff's evidence shows that after he made the stop at Tower Grove, on the day of July 25th, the train was divided and he took his engine on into the yards and then went to his home where he was told by his wife that Mr. Davis, an officer of defendant railroad, had notified him to be in the Superintendent's office for an investigation at 9:00 o'clock A.M., July 26, 1947. In plaintiff's deposition he gave this testimony:
"Q. And you didn't have any written notice or anything like that? A. No, no written notice."
In plaintiff's testimony, at a former trial of this case, introduced on cross-examination, plaintiff gave this testimony:
"Q. Let me ask you if this question was asked you, Mr. Mullin, at that time: `Mr. Mullin, you received my notice', referring to Mr. Davis, `dated July 25th, and reading as follows: "You will please report at my office at 10:00 A.M. Central Standard Time, July 26th, 1947, with a disinterested part- of your choice, if you so desire, for an investigation with reference to rough handling of Train No. 10 at Tower Grove, with Engine 4402, about 7:43 AM July 25, 1947", and your answer was `Yes, sir.' Is that right? A. That's right, then.
"Q. That's right? A. If you read it, I said it; that's right; but I can't remember them dates now.
"Q. Now then, after the investigation, were you asked to sign the statement that you had made? A. No; he asked me to sign a paper, I never signed a statement, he told me to sign this paper.
"Q. Well, before you signed it, was this question asked you: `Mr. Mullin, are you satisfied with the manner in which this investigation has been conducted, anything further you would like to add?' A. I guess that's right.
"Q. And didn't you answer: `I am. I believe that is all that I have?' A. That's right.
"Q. Now, you signed that statement, didn't you? (Exhibiting statement) A. I don't know whether I signed that statement or not; I signed something there that he told me to sign. I see that there; I know that is on there.
"Q. That is your signature? (Handing statement to witness) A. Yes, that's my signature; I know it is there, but I can't say how it got there."
The witness then testified that he put his signature there. The witness testified that Mr. Davis was there at the time of the investigation and that Mr. Cale was there and a young lady who took down the testimony was there and that an engineer by the name of Mr. Moore was there representing him at his request and after the investigation he testified that Mr. Davis told him he would have to take him out of passenger service. He gave this testimony:
"Q. And did Mr. Davis tell you at that time that he would have to take you out of passenger service? A. Yes.
"Q. And did he tell you that you could exercise your seniority in freight service? A. I believe there was something said about that too.
"Q. He did tell you that? A. I believe so.
"Q. Now, did he also say that you could exercise your seniority in the yards there at St. Louis, with a switch engine? A. I don't know that he brought that up; he might have brought that up too, I can't say. That is quite a while, you know.
"Q. Well, is it possible that that came up? A. It is possible that it came up.
"Q. Now, did he also say that you could exercise your seniority over on the Salem Branch? A. Yes, I believe that was brought up too."
The witness testified that he supposed Mr. Davis told him after the hearing that he could have the Salem Branch run. There is no question but what all of the testimony shows that complaint was made to the proper authorities or officials of the railroad charging plaintiff with the rough handling of passenger train No. 10 on the morning of July 25, 1947; that written notice of this charge was received by plaintiff and that plaintiff was advised that he could have a representative of his choice to be with him at the hearing to be held in the superintendent's office at 10:00 o'clock A.M., July 26th. There is no dispute that the hearing was, at the time specified in the notice, held; that plaintiff was present at the hearing and that Mr. Moore, an engineer, who was by plaintiff called to represent him, was there. There is no dispute that one, Mr. Cale, a road engineer who had been designated by the company prior to this hearing to ride the engine with plaintiff and whose duty it was to instruct plaintiff how to properly handle his engine in order to make stops and starts so as not to rough up the train by the run in of the slack therein, was present. And that there was also present at this hearing, Mr. Davis who conducted the hearing and a young lady who took the testimony.
There is no dispute that after the hearing on the same day Mr. Davis talked to plaintiff and informed him that he was removing him from passenger service because of his inability to properly handle passenger trains and that Mr. Davis informed plaintiff, at that time, he could work in freight service there in the yards in St. Louis, or that he could go on the Salem Branch and that he, at the time, told plaintiff he could use his seniority in obtaining work in freight service. Now the evidence shows that plaintiff had been locomotive engineer for two or three years on defendant's best passenger trains, numbered 1 and 10, running from St. Louis to Newburg, a distance of 100 miles.
This lawsuit grew out of the action of the railroad taken after the hearing July 26, 1947, and the removing of plaintiff from passenger service. Plaintiff contends that this action was a dismissal and a breach of the contract pleaded. Defendant contends that it did not dismiss plaintiff from its employment but that it merely removed him from passenger service. There being no dispute as to the facts under which the alleged dismissal took place it was a matter of law for the court to decide whether or not the removal of plaintiff from passenger service was a dismissal. Craig v. Thompson, supra, 244 S.W.2d at
Plaintiff testified that Mr. Cale was a road engineer. He gave this testimony:
"Q. Well, did he ride with you on a number of trips? A. Not a number of trips; he has rode with me a few times.
"Q. And what is the purpose of the Road Engineer riding with you? A. I don't know.
"Q. Isn't it to instruct you, and to teach you how to handle the engine? A. Maybe it is; I didn't ask him. * * *
"Q. And if you have trouble about your slack he tells you about that? A. Maybe he probably would."
He testified this was the same Mr. Cale who was present at the hearing. However, he stated that he had no trouble stopping his train at stations or at water towers. He gave this testimony:
"Q. You don't think that he ever did. You did have trouble with slack in the trains, didn't you? A. I don't know; I guess that is what they called it at Tower Grove that morning."
He testified that in coming into Tower Grove, the grade was up hill and all the slack in the cars was out and that when he stopped the slack ran in, naturally causing the stop to be rough, but he stated he did all anybody could do on a steam engine; that the roughness was not caused by his fault. He testified he had to take the trains as they were made up; that he had nothing to do with the makeup.
He testified that he was 72 years old and, up until January 19, 1949, was able to operate a passenger train. At the time of the trial he and his wife were both sick and their testimony at a former trial was read to the jury, also a former deposition of plaintiff was introduced in evidence.
It is the law that just and sufficient cause may be shown by either plaintiff or the defendant by any competent evidence they have regardless of the investigation. Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718.
But the question here was not whether or not the defendant had a fair trial but whether or not the plaintiff was dismissed from the employment. There is no doubt that plaintiff was willing to work on passenger trains. There is no doubt that there was substantial evidence to show that he was able to work. There is no doubt that he was removed from passenger service and there is no dispute as to the testimony that he was offered employment in freight service and that he was offered the opportunity to use his seniority in securing work in freight service. Plaintiff gave this testimony:
"Q. Now, you were to be put by Mr. Davis' order back to where you couldn't drive any passenger trains? A. That is right; I would take what they give me. If I said I could work, they would find some place, I guess, for me."
So, we think there isn't any question, from plaintiff's testimony, but what plaintiff was offered work in freight service and was to be allowed to use his seniority in securing this work. Now plaintiff testified that work on freight service required longer hours; that the pay was as good or better but that passenger service was considered "A" service and freight "B" service.
We agree with defendant that the undisputed evidence offered by plaintiff as a matter of law fails to show that plaintiff was dismissed under the contract pleaded. We, here, state the contract as offered in evidence:
"Article 52, entitled `Discipline', Section 1: `Engineers shall not be discharged, suspended or given demerit marks without just and sufficient cause. Before assessing discipline in form of dismissal or suspension, unless waiver is signed by engineer, Assistant Superintendent, Master Mechanic, or Superintendent will hold investigation if requested by employee involved, except in cases of head-on collision or drunkenness. If investigation is deemed necessary, engineer may be present, together with a disinterested engineer of his choice, all decisions to be rendered within fifteen days when practicable. In case of dismissal, suspension or demerit marks, if engineer thinks sentence unjust, he shall have the right, within ten days, to refer his case by written statement to Superintendent or Superintendent of Motive Power. Within ten days of receipt of this notice his case shall have a thorough investigation by proper officer of the company, at which investigation he may be present if he so desires, and also be represented by disinterested engineer of his choice. Local or General Chairman to be furnished copy of entire investigation if desired, which will be returned when they have served their purpose.'
"Section 2: `In case he is dissatisfied with the result of investigation he shall have the right to appeal to the General Officers. In case punishment is inflicted and subsequently found to be unjust, he shall be reinstated and paid at regular rates for all time lost. No appeal to General Officers will be considered unless presented in writing within ten days after Committee of Adjustment has received decision of Superintendent of Motive Power or Division Superintendent rendered after conference with them.' * * * "
We think this is the only part of the contract offered which is necessary in deciding the above question and we hold that from the undisputed evidence, as a matter of law plaintiff did not show that he was dismissed from service in violation of his contract.
Defendant's assignment of error No. III complains of the trial court's action in refusing defendant's motion for a directed verdict at the close of plaintiff's evidence for the reason that plaintiff failed to assume and sustain the burden of proof incumbent upon him.
Under our holding in deciding point II, we agree with defendant that the evidence failed to show that plaintiff was dismissed from his employment as locomotive engineer. The motion should have been sustained.
Under point IV, defendant complains that its motion for directed verdict at the close of all the evidence should have been sustained. Under our former holdings we agree with this contention.
Under point V, defendant complains that Instruction No. I was erroneous because it cast the burden of proof upon the defendant.
We understand from the argument before the court that it is admitted that this instruction was wrong. This instruction tells the jury that if they find from the evidence that the defendant did suspend or did discharge plaintiff from his right to work under his full seniority with defendant, then the burden of proof shifts to the defendant. This instruction is in direct conflict with the last ruling of the Supreme Court in Johnson v. Thompson, Mo.Sup., 251 S.W.2d 645. This case specifically holds that the burden of proof does not shift to the defendant and cites Craig v. Thompson, supra. We find this instruction clearly erroneous and reversible error.
Assignment of error No. VI complains of Instruction No. 2 in that it failed to properly instruct the jury under the law and the evidence.
Under our holding that the evidence on the part of plaintiff does not show a discharge, we think this instruction is clearly erroneous.
Under assignment of error No. VII, we agree with defendant that the instruction is too broad under the evidence.
Under point VIII, defendant complains of the giving of Instruction No. 4. With this contention we do not agree.
We also do not agree with defendant in its assignment of error No. IX.
Under defendant's assignment of error No. X, it complains of Instruction No. 6. This instruction was probably proper under the ruling of the court under the evidence. The trial court ruled that defendant could not show that there was a rule applicable to plaintiff which required plaintiff to report to work within thirty days. We think the trial court was clearly in error in not permitting the whole contract of employment to be shown which would include all the rules applicable to plaintiff's work and, therefore, had the case been properly tried it would clearly have been error to give this instruction. There can be no doubt in our mind that the trial court considered the case tried upon the theory that the removal of plaintiff from passenger service constituted a dismissal. Therefore, the rule pleaded by defendant as above, would not be admissible. We have held that the testimony does not constitute a dismissal just because plaintiff was removed from passenger service, therefore, under our holding, this instruction would be error.
Defendant's assignment of error No. XI complains of the refusing of Instructions D-1 to D-13, inclusive, offered by defendant.
Under the theory of the case as tried by the court, these instructions would probably be not admissible. We think the court's theory was wrong. We hold that, as a part of the employment contract, defendant should have been permitted to show all the rules pertaining thereto and the jury should have been instructed on the defendant's theory of the case as well as the plaintiff's. Under our holding that plaintiff's evidence failed to show a dismissal on the undisputed facts which was a question for the court and not the jury, it would be unnecessary to pass upon this assignment of error.
The issue presented by the pleadings was that plaintiff was dismissed from his employment with the defendant without just and sufficient cause and this was denied by the answer putting the act of dismissal in issue and there being no conflict of evidence upon this point, it was the duty of the trial court to determine that issue as a matter of law. It was not a question for the jury and we now hold that testimony was not sufficient to show a dismissal and that plaintiff, under this testimony, could not recover.
Under defendant's assignment of error No. XII, it is complained that the court refused certain testimony offered by defendant. This testimony went to the providing of the thirty day rule mentioned before in this opinion. The court had excluded this rule and, therefore, of course, the testimony would have to be excluded. We hold the court was in error in exclusion of the rule and, therefore, necessarily, he must have been in error in excluding the testimony.
Under assignment of error No. XIII, we do not agree with defendant.
It is unnecessary to pass upon assignment of error No. XIV as, under our former ruling, we hold that the case must be reversed.
Judgment reversed and remanded with instructions to enter judgment for defendant.
VANDEVENTER, P. J., concurs.
BLAIR, J., concurs in result.