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State ex Rel. Terminal Railroad Assn. v. Hughes

Supreme Court of Missouri, Division Two
Mar 25, 1943
169 S.W.2d 828 (Mo. 1943)

Opinion

Nos. 38047, 38048.

January 4, 1943. Rehearing Denied, March 25, 1943.

1. CERTIORARI: Statutes: Court of Appeals May Construe. It is within the province of the Courts of Appeal to construe the statutes and their records are not to be quashed if the language of the statute is open to construction and has never been construed by the Supreme Court on a record involving sufficiently similar facts to require the application of a principal of law previously announced by that court. The issue is one of conflict and not the correctness of the ruling under review.

2. CERTIORARI: Conflict not Based on Dictum. Certiorari proceedings involving conflicts in rulings are not concerned with dictum.

3. STATUTES: Corporations: Service Letter to Employee: Liberal Construction of Remedial Portion of Statute. The first part of Sec. 5064, R.S. 1939, provides for a service letter to an employee leaving the service of a corporation, and is remedial in nature. It is entitled to a liberal construction even though the second part of the statute is penal.

4. CERTIORARI: Statutes: Corporations: Service Letter From Superintendent or Manager: Statute Open to Construction. Sec. 5064, R.S. 1939, contains no explicit provision as to the person upon whom the request is to be made for a service letter, though the statute designates the superintendent or manager as the person to issue the letter. The statute was open to construction with respect to whom the request should be made.

5. CERTIORARI: Issues Omitted From Opinion of Court of Appeals: No Basis for Review. In a certiorari proceeding the Supreme Court is concerned only with conflict, and is not concerned with any facts or issues omitted from the opinion of the Court of Appeals. (State ex rel. Boeving v. Cox, 310 Mo. 367, overruled in part.)

Certiorari.

WRIT QUASHED.

Carleton S. Hadley and Arnot L. Sheppard for relator.

(1) Although respondents' opinion may be undeniably wrong, this court's jurisdiction may not be invoked, unless it is also in conflict with this court's latest controlling opinion, upon either the specific or general question of law involved in the decision of the cause. State ex rel. Snider v. Shain, 345 Mo. 950, 137 S.W.2d 527; State ex rel. Mills v. Allen, 344 Mo. 743, 128 S.W.2d 1041; State ex rel. Prudential Ins. Co. v. Shain, 344 Mo. 623, 127 S.W.2d 675. (2) Respondents' opinion conflicts with this court's opinion on the specific question involved here, viz., to whom must the request be made and whose duty is it under the statute to issue the letter contemplated? This court has said the request for the letter must be made to, and it must be issued by, "the superintendent or manager." Cheek v. Prudential Ins. Co., 192 S.W. 387. (3) Respondents' opinion conflicts also with this court's latest and controlling opinions on the general principle involved, viz., the proper rule to be applied in the construction of criminal and penal statutes, even if it is admitted solely for this argument that the Cheek case, supra, is not decisive of our question, and assuming further that Section 5064 is ambiguous. (4) The statute is a criminal one as well as highly penal and in direct derogation of common law. Cheek v. Prudential Ins. Co., 192 S.W. 387; Lynch v. M., K. T.R. Co., 61 S.W.2d 918; Cummins v. K.C. Pub. Serv. Co., 66 S.W.2d 920. (5) Moreover, as it is a criminal as well as a penal (in the civil sense) statute, perforce it must be liberally construed in favor of relator (defendant below). Such a construction does not permit the inclusion of anything or anyone not within the letter as well as the spirit of the statute. State ex inf. Collins v. St. L.-S.F.R. Co., 238 Mo. 605; State v. Bartley, 304 Mo. 58, 263 S.W. 95; State v. Gritzner, 134 Mo. 512; St. Louis v. Goebel, 32 Mo. 295; State ex rel. Spriggs v. Robinson, 253 Mo. 271; Priest v. Capitain, 236 Mo. 446, 139 S.W. 204; State v. Burke, 151 Mo. 136. (6) The cardinal rule of statutory construction is to ascertain if possible the intent of the law-makers from the words used, and to give the language of the statute its plain, rational meaning. Artophone Corp. v. Coale, 345 Mo. 344, 133 S.W.2d 343; Cummins v. K.C. Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Meyering v. Miller, 320 Mo. 885, 51 S.W.2d 65. (7) Of almost equal importance is the further rule that words in common use must be given their natural, plain and common meaning. Berry-Kofron Dental Laboratory Co. v. Smith, 345 Mo. 922; O'Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 837. (8) Where one class of persons is designated as subject to its penalties all others not mentioned are exonerated. Such statutes are not to be extended or enlarged by judicial construction to embrace offenses or persons not plainly written within their terms. State v. Bartley, 304 Mo. 58, 263 S.W. 95. (9) All doubts concerning their interpretation are to preponderate in favor of the accused. State v. Burke, 151 Mo. 136. (10) Strict construction means construction of a statute or other instrument according to its letter, which recognizes nothing that is not expressed, takes the language used in its exact and technical meaning, and admits no equitable considerations or implications. Priest v. Capitain, 236 Mo. 446, 139 S.W. 204. (11) Neither respondents nor any other court may interpolate into the statute the words station-master, agents or representatives. State v. Bartley, 304 Mo. 58, 263 S.W. 95. (12) The general rule is that punitive damages are not recoverable against an employer unless they could have been recovered against the employee for whose actions it is sought to make the employer liable. 15 Am. Jur., Damages, sec. 287; Lake Shore Michigan So. R. Co. v. Prentice, 147 U.S. 101, 13 S.Ct. 261, 37 L.Ed. 97; Aetna Life Ins. Co. v. Brewer, 12 F.2d 818. (13) This principle has been announced by this court as to compensatory damages, and is of necessity applicable to punitive damages as well. McGinnis v. C., R.I. P.R. Co., 200 Mo. 347. (14) Although this question is ignored in respondents' opinion, they of necessity held against relator's contention else the circuit court judgment awarding damages could not have been affirmed. Implicit in the affirmance is a finding by respondents against the inapplicability of this doctrine. State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869. (15) Respondents' opinion says "a strict construction is one which limits the application of the statute by the words used. It places no greater burden on one party litigant than on the other; both must comply with the terms of the statute." This statement of the law directly conflicts with this court's opinions in: State v. Bartley, 304 Mo. 58, 263 S.W. 95; State ex inf. Collins v. St. L.-S.F.R. Co., 238 Mo. 605; State v. Burke, 151 Mo. 136; Priest v. Capitain, 236 Mo. 446, 139 S.W. 204. (16) Respondents' opinion has by judicial legislation, rewritten the statute by exercising the words "the superintendent or manager," contrary to this court's rule. State v. Bartley, 304 Mo. 58.

Hay Flanagan for respondents.

(1) Rulings of other jurisdictions are not considered on certiorari to quash record of a Court of Appeals. State ex rel. Metropolitan Life Ins. Co. v. Allen, 339 Mo. 1156, 100 S.W.2d 487; State ex rel. Mechanics'-American Natl. Bank v. Sturgis, 276 Mo. 559, 208 S.W. 458. (a) Supreme Court has no power to interfere with the construction of a statute by a Court of Appeals unless such construction is contrary to prior controlling decisions. State ex rel. McClain Jones v. Robertson, 262 Mo. 535, 172 S.W. 21; State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694; State ex rel. Harrington v. Trimble, 326 Mo. 623, 31 S.W.2d 783; State ex rel. American Surety Co. v. Haid, 325 Mo. 949, 30 S.W.2d 100; State ex rel. and to Use of Huering v. Allen, 342 Mo. 81, 112 S.W.2d 843. (2) The Supreme Court's interpretation of Section 5064, Revised Statutes of Missouri 1939, being on an altogether different point than the one considered in respondents' opinion, cannot furnish ground for conflict. Cheek v. Prudential Ins. Co., 192 S.W. 387. (3) Respondents' opinion fully conforms to the rules of statutory constructions applied and suggested by the Supreme Court and is not, therefore, subject to be quashed on certiorari. Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65; Cumming v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920; Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943; Rust v. Missouri Dental Board, 155 S.W.2d 80.


Originating as actions for damages for failure of the Terminal Railroad Association of St. Louis (hereinafter designated Terminal) to issue service letters under Sec. 5064, R.S. 1939, these two certiorari proceedings are prosecuted by the Terminal. The issue is whether a conflict with previous rulings of this court arises from the ruling of the court of appeals that requests for service letters made by ushers or redcaps of the stationmaster at the St. Louis union station constituted a sufficient compliance with said section under the facts in evidence to impose civil liability upon the Terminal. Chrisman v. Terminal Rd. Ass'n (Mo. App.), 157 S.W.2d 230; Hopkins v. Terminal Rd. Ass'n (Mo. App.), 157 S.W.2d 236. The cases presented like facts and issues. The principal opinion was delivered in the Chrisman case. Sec. 5064 reads:

"Whenever any employee of any corporation doing business in his state shall be discharged or voluntarily quit the service of such corporation, it shall be the duty of the superintendent or manager of said corporation, upon the request of such employee (if such employee shall have been in the service of said corporation for a period of at least ninety days), to issue to such employee a letter, duly signed by such superintendent or manager, setting forth the nature and character of service rendered by such employee to such corporation and the duration thereof, and truly stating for what cause, if any, such employee has quit such service; and if any such superintendent or manager shall fail or refuse to issue such letter to such employee when so requested by such employee, such superintendent or manager shall be deemed guilty of a misdemeanor, and shall be punished by a fine in any sum not exceeding five hundred dollars, or by imprisonment in the county jail for a period not exceeding one year, or by both such fine and imprisonment."

Mr. Chrisman and Mr. Hopkins made their request for a letter upon the Terminal's stationmaster. They made no request upon any person designated superintendent or manager by the Terminal. The opinion of the court of appeals states that a Mr. Mathewson had been designated as general superintendent and a Mr. Davis had been designated as superintendent of the Terminal; that there was no evidence whatever as to the duties of said general superintendent or superintendent or whether they had any supervision or management over the ushers or redcaps; and that the stationmaster had "`supervision over the redcaps; issued the orders, hired and fired them, and fixed the hours of work; if he didn't give the orders directly he did it through the chief usher.'" The court concluded that, in the circumstances of record, the stationmaster "came within the legislative meaning of superintendent or manager as to the ushers or redcaps." See 157 S.W.2d l.c.s 234, 235.

We think our writ improvidently issued. A number of our decisions are to the effect that it is within the province of the courts of appeal to construe statutes and that in certiorari proceedings their records are not to be quashed if the language of the statute is open to construction and has never been construed by this court on a record involving identical facts or sufficiently similar facts to require the application of a principal of law previously announced by this court. This, even though we might be inclined to question the holding of the court of appeals; because the issue is one of conflict in rulings and not the correctness of the ruling under review. State ex rel. Wors v. Hostetter (Banc), 343 Mo. 945, 959, 124 S.W.2d 1072, 1078[6-9]; State ex rel. Clark v. Shain (Banc), 343 Mo. 66, 73[4], 119 S.W.2d 971, 974 [6, 7]; State ex rel. Arndt v. Cox, 327 Mo. 790, 797, 38 S.W.2d 1079, 1082[4]; State ex rel. Heuring v. Allen, 342 Mo. 81, 88, 112 S.W.2d 843, 846.

Asserting the request must be made to the "superintendent or manager," the Terminal claims conflict with Cheek v. Prudential Ins. Co. (Mo.), 192 S.W. 387, 390, 391, stressing, while quoting paragraph II thereof, the sentence reading: "The superintendent mentioned in the statute is the officer of the company whose duty it is made to issue the letter for it to the employee." The issue here is: Of whom may or must the request for the letter be made? The instant facts are in no way analogous to and the instant issue is not mentioned, discussed or ruled in Cheek v. Prudential Ins. Co., supra. Hence there is no conflict of rulings.

[330] A number of attacks against the ruling and observations or statements made in arriving at said ruling are bottomed upon the assertion the statute is criminal and penal in nature and is to be construed strictly against plaintiffs and liberally in favor of the Terminal. Certiorari proceedings involving conflicts in rulings are not concerned with dictum or nonconsequential inconsistencies, if any, appearing arguendo in an opinion. They do not rise to the dignity of a ruling. See State ex rel. Tonnar v. Bland, 324 Mo. 987, 990, 25 S.W.2d 462, 463[1, 2]; State ex rel. Hayes v. Ellison (Mo. Banc), 191 S.W. 49, 55 [13].

Section 5064 may be divided into two parts. The first part imposes a duty upon superintendents or managers of corporations to issue service letters. The second part of the statute renders a superintendent or manager guilty of a misdemeanor for failure to comply with its provisions. The Terminal stresses the penal portion of the statute. It has been said that where a statute is both remedial and penal, remedial in one part while penal in another, it should be considered as a remedial statute when it is sought to enforce the remedy and penal when it is sought to enforce the penalty. Murphy v. St. Louis-S.F. Rd. Co., 205 Mo. App. 682, 695, 226 S.W. 637, 642[6]; 59 C.J., p. 1121, Sec. 662. Cheek v. Prudential Ins. Co., supra, like the instant review, involved the first part of the statute; presenting the issue whether a count in Cheek's petition based upon a failure to comply with said statute stated a cause of action against the Prudential. The Prudential contended that the statute neither imposed a duty on the corporation nor gave a right of action against it but imposed the duty upon the superintendent or manager and upon his failure to issue the requested letter made him guilty of a misdemeanor. Although the statute does not in haec verba so declare, the court construed it to give an employee, wrongfully refused a letter, a right of action against his corporate master and to make it the duty of the corporation acting through its superintendent or manager to issue the letter and not the duty of the superintendent or manager in his individual capacity. The court stated the historical reasons for the enactment to be the prevention of injustice and oppression, which had become so great as to be a public evil, to large numbers of laboring people, and to regulate the issuance of letters concerning a former corporate employee's record and his reason for leaving the service to the end the employee be armed with a letter stating the true facts (192 S.W. l.c.s 389, 391) and to repair the injury if one be sustained (l.c. 393) The court also, among other things, observed that the enactment was for the protection of the public, the benefit of the employees, had been brought on by the corporations and not by their superintendents or managers, was within the police power of the State, was not discriminatory or class legislation, and imposed no unjust burden or expense on corporations (l.c. 392). "Such legislation violates no constitutional provision, State or Federal, that I know of; but upon the other hand, is highly beneficial and commendable." (l.c. 393.) It follows that the Terminal's contentions bottomed upon a strict construction of the first part of the statute are out of harmony with and must yield in the instant proceeding to the rulings and accompanying reasons in Cheek v. Prudential Ins. Co., supra, the only case of this court construing the statute relied upon by the Terminal. The ruling and observations in respondents' opinion are to be read in the light of the facts developed by the record before respondents and the issues presented for determination.

The Terminal states it is inconceivable that the request for a letter may be made of one person and another be punished for failing to comply with it. Of course, the court of appeals did not so rule. The contention is based upon the penal portion of the statute. This was not before the court of appeals. The argument is the same in effect as part of the argument unsuccessfully interposed in Cheek v. Prudential Ins. Co., supra. The statute designates the "superintendent or manager" as the person to issue the letter. It contains no explicit provision as to the person upon whom the request is to be made that civil liability attach to the corporation. In view of the construction of the first part of the statute in Cheek v. Prudential Ins. Co., supra, and the rulings there made we are not in a position to hold that under the record in the cases under review said first part of the statute was not open to construction with respect of whom the request should be made.

[331] The Terminal makes another point, tating it was presented but was not discussed or even mentioned (i.e. was ignored) in respondents' opinion although respondents' affirmance of the judgment nisi constituted a ruling against the doctrine contended for. State ex rel. Boeving v. Cox (Div. II), 310 Mo. 367, 372 (I, II), 276 S.W. 869, 870 (I, II), is cited to the question being open for inquiry here. We think several reasons may be advanced for disallowing the point, which relates to the allowance of punitive damages. The Missouri case cited to establish a conflict in rulings is McGinnis v. Chicago, R.I. P. Ry. Co., 200 Mo. 347, 98 S.W. 590, 9 L.R.A. (N.S.) 880. That was an action for compensatory damages for personal injuries against a servant and his master — the master's liability resting on the doctrine of respondeat superior. We held a plaintiff's verdict against the master but also in favor of the servant, joined with the master as a party defendant, would not support a judgment against the master on account of the exoneration of the servant. No servant was joined as a party defendant with the Terminal in the instant case. We understand from a reading of State ex rel. Boeving v. Cox, supra, the court of appeal's opinion there involved disclosed that the point was within the issues presented for determination. We are not concerned with facts and issues omitted from but are concerned with the facts and issues stated in the opinion of the court of appeals in certiorari proceedings to determine a conflict of rulings. State ex rel. Govro v. Hostetter, 341 Mo. 262, 266[3], 119 S.W.2d 22, 24[3]; State ex rel. Jones v. Robertson (Banc), 262 Mo. 535, 538(I), 172 S.W. 21[1]; State ex rel. City of St. Joseph v. Ellison (Banc), 223 S.W. 671, 674[9, 10]; State ex rel. United Rys. Co. v. Allen (Mo.), 240 S.W. 117, 121[5]; State ex rel. Major v. Allen, 310 Mo. 386, 396 (V), 276 S.W. 1026, 1029[4]; State ex rel. Burton v. Allen, 312 Mo. 111, 123(V), 278 S.W. 772, 775[7]; State ex rel. Silverforb v. Smith (Mo.), 43 S.W.2d 1054, 1058[7]. We refuse to refer to the briefs for alleged issues not determined or discussed. State ex rel. Mo. Mut. Ass'n v. Allen, 336 Mo. 352, 360 [4], 362, 78 S.W.2d 862, 865[7, 9]; State ex rel. N.W. Nat. Ins. Co. v. Trimble, 323 Mo. 458, 469, 20 S.W.2d 46, 51[6]; State ex rel. Public Serv. Comm. v. Shain (Banc), 342 Mo. 867, 872[1], 119 S.W.2d 220, 222[2]; State ex rel. Breit v. Shain (Banc), 342 Mo. 1148, 1153[3], 119 S.W.2d 758, 761[3]; State ex rel. Shaw Transfer Co. v. Trimble (Mo), 250 S.W. 384, 387[6]. To refer to the briefs for alleged issues presented to the courts of appeal and then proceed to determine such issues would smack of appellate jurisdiction. The instant proceeding is restricted to inquiries involving conflicts in rulings to preserve harmony. We think State ex rel. Boeving v. Cox, supra, does not extend as far as the Terminal would have us go; but it should no longer be followed if and insofar as language therein used may lend itself to a construction that the ruling is applicable to situations like the instant.

Finding no conflict, our writ of certiorari is quashed. Westhues and Barrett, CC., concur.


The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.


Summaries of

State ex Rel. Terminal Railroad Assn. v. Hughes

Supreme Court of Missouri, Division Two
Mar 25, 1943
169 S.W.2d 828 (Mo. 1943)
Case details for

State ex Rel. Terminal Railroad Assn. v. Hughes

Case Details

Full title:STATE OF MISSOURI at the relation of TERMINAL RAILROAD ASSOCIATION OF ST…

Court:Supreme Court of Missouri, Division Two

Date published: Mar 25, 1943

Citations

169 S.W.2d 828 (Mo. 1943)
169 S.W.2d 828

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