Marshall v. Charleston W.C. Ry. Co. , 164 S.C. 283 ( 1931 )

These two cases, commenced in February, 1928, were tried together by agreement, at the fall term, 1929, before his Honor, Judge Grimball, and a jury. He directed a verdict in each case in favor of the defendant. From the judgments entered thereon the plaintiffs respectively have appealed. The appeals were heard together in this Court and will be so considered.

The appeals involve identical issues, except that the plaintiff Stuart raises a point that is not raised in the case of Marshall; what shall be said in reference to the Marshall appeal will apply to the Stuart appeal as well; a separate treatment of the additional point raised by Stuart will appear.

The action by Marshall (as is also that by Stuart), is for damages on account of his alleged wrongful discharge from the service of the defendant as a conductor. The ground of his complaint is that he was discharged without just cause or excuse, and in violation of the provisions of an agreement entered into between the company and the labor union, known as the Order of Railway Conductors, which guaranteed to a member, before his discharge, an investigation of the grounds of complaint against him.

From the testimony on behalf of the plaintiff, which for the purposes of this appeal (from an order directing a verdict in favor of the defendant), is to be taken as true, the following facts appear:

The plaintiff had been in the service of the defendant and its predecessors for about 38 years; his term of service was indefinite; as he testified, "as long as you were giving satisfaction, and as long as you attended to your business and had not done anything wrong, or criminally wrong, to be discharged for"; the service of course was accompanied by the opportunity of promotion and seniority. On December 29th (30th), he was notified to appear at the office of the superintendent; he obeyed the summons and was notified that he was charged with allowing his negro porter to collect fares from colored passengers, in the coaches provided for that race; he admitted that he had done so, and had been doing so for many years; he was immediately discharged by the superintendent, and failed, after many efforts with other executive officers and with certain officials of the order, to be reinstated. There was evidence tending to show that certain officials of the company knew of the practice which prevailed, and under circumstances, of allowing and directing the porter to collect fares from colored passengers. The plaintiff also offered evidence of the damage suffered by him in consequence of what he conceived to be a wrongful discharge.

There was introduced on behalf of the plaintiff a written agreement, styled "Revised schedule of wages, rules and regulations for conductors," between the Order of Railway Conductors and the defendant company, effective February 1, 1927, which contained the following stipulation: "Conductors will not be disciplined without an investigation, which will be made by the proper officer within five days, if practicable, and in their presence; they will have the privilege of bringing to the investigation to assist them a conductor of their own selection, provided he is employed and in good standing on the division. If found blameless they will be paid for time lost; if discharged, they will be furnished with a letter showing cause of dismissal, term of service and capacity in which employed. If disciplined, they will be furnished with a written notice of same; and they will be given a copy of the proceedings of the investigation, if requested."

Upon his discharge he was furnished with a statement in writing, by the superintendent, of the cause of his dismissal.

At the close of the testimony the defendant moved for a directed verdict in its favor upon the following grounds:

"1. That there is no testimony tending to establish the alleged contract as set out in the complaint; and that there is no testimony tending to establish any binding legal enforceable contract of employment.

"2. The testimony shows that the alleged contract is indefinite as to the time of service, and lacking in mutuality, and that it is not claimed that it was binding at all on the employees and they could quit at any time they chose, and that it is an indefinite contract, and such contract can be waived by either party.

"3. The pamphlets introduced in evidence entitled, Revised Schedule of Wages, Rules and Regulations for Conductors, effective February 1st, 1927, does not contain a contract between the individual members of the Order of Railway Conductors and the defendant company; but is as stated Revised Schedule of Wages, Rules and Regulations for Conductors and entered into in pursuance of the Labor Act of Congress of 1926, which requires all carriers and employees to enter into an agreement similar to the agreement in question. That if it be said he had a contract as indefinite and lacking mutuality and that the Labor Act states that the Labor Union cannot bind employees to work against their consent, and, therefore, under the terms of the Labor Act there is no enforceable contract in this case.

"4. Under and by virtue of the Labor Act of Congress, 1926, carriers and employees are required to enter into agreement, provided for the settlement of disputes and grievances; and providing for appeal to this other board, and by the testimony it had been done in this case, and the Rules and Regulations and Pamphlets are not binding on the employees, and his exclusive remedy, and having no stand in this Court for a breach of alleged contract in this case."

His Honor, the presiding Judge, ruled as follows: "Well, gentlemen, I guess I have got to the cross-roads. I can't see after listening to counsel on both sides very fully that there has been proved any contract binding upon both parties, and, therefore, under the decisions and the authorities in my opinion it is my duty to direct a verdict and grant the motion which I do on the first two grounds."

The conclusion announced in the opinion of Mr. Justice Graydon is based solely upon the principle declared in the case of Gantt v. R. Co., 125 S.C. 518, 118 S.E., 920, in effect, that where the employment is for an indefinite period, each party having the right to terminate it at his pleasure, the employee discharged has no right under the agreement or contract referred to, between the order and the company, to an investigation as provided therein.

For the reasons given in the opinion submitted by me in the case of Johnson v. Express Company, 163 S.C. 191,161 S.E., 473, in process of decision, I do not think that the Ganttcase should be upheld in this declaration. Ordinarily where there has been such an agreement between the union and the employer, and the employer has refused or failed to accord to the employee the right to an investigation, as provided for, and discharges him, the employee would have the right to treat the action of the employer as a breach of the contract of service, and to maintain an action in damages therefor.

But in the case at bar the plaintiff admitted the charge to the superintendent, and in his testimony reiterates such admission. There was consequently nothing to investigate. The law will not require a vain and useless ceremony; the employee will be deemed to have waived the stipulation for an investigation.

In the case of Adams v. Southern Pacific Co.,204 Cal., 63, 266 P., 541, 543, 57 A.L.R., 1066, Adams, a conductor, was discharged for conduct unbecoming his office. Adams brought suit charging that a rule of the company had been breached providing that no employee could be discharged except upon "an open and fair investigation," which he contended was not done. In disposing of this the Court said: "Respondent urges that a reversal of the judgment will render the rule of the railroad company, under which it cannot discharge an employee except upon an open and fair investigation, a nullity. Answering this contention it is sufficient to say that the law does not require idle acts. * * * As respondent admitted to the officers of the company before his discharge that he had committed the acts enumerated, an open investigation was not required, as it would be idle to investigate charges, the truth of which is admitted by the person charged."

In the case at bar appellants themselves both admitted that they were guilty of permitting their negro porters to collect cash fare — a rule not only of vital importance but one upon which the very life of the company rests. It will hardly be contended by any reasonable mind that to permit a responsible conductor to delegate to an irresponsible negro porter the highest and most important duty which he has to perform in the service of his master, does not constitute sufficient grounds for dismissal.

It has been suggested that notwithstanding such admission, there was evidence tending to show that the objectionable practice had been continued for years, to the knowledge of certain executive officers of the company, and that fact, with its legal consequences, was a legitimate subject of investigation. Assuming even that the president of the company had knowledge of the practice, I do not think that his authority could bind the company in such a gross breach of the duties of a conductor.

The term of service being indefinite and the plaintiff having waived the protection of the stipulation by his admission, the company had the right of discharge with or without cause.

The appellant contends that he had practically a contract with the company for permanent employment or employment for life. The record does not contain any evidence tending to sustain this contention. Even, however, had the railway company entered into such a contract, the authorities hold with practical unanimity that, in the absence of additional express or implied stipulation as to the duration of the employment or of a good consideration additional to the services contracted to be rendered, a contract for permanent employment, for life employment, for as long as the employee chooses, or for other terms purporting permanent employment, is no more than an indefinite general hiring, terminable at the will of either party. Lord v. Goldberg,81 Cal., 596, 22 P., 1126, 1128, 15 Am. St. Rep., 82; Shuler v. Corl,39 Cal.App., 195, 178 P., 535; Bentley v. Smith,3 Ga. App. 242, 59 S.E., 720, 722; Speeder Cycle Co. v. Teeter,18 Ind. App. 474, 48 N.E., 595; Faulkner v. Des Moines Drug Co., 117 Iowa, 120, 90 N.W., 585; Perry v. Wheeler, 12 Bush (Ky.), 541; Louisville N.R. Co. v. Offutt,99 Ky., 427, 36 S.W. 181, 59 Am. St. Rep., 467; YellowPoplar Lumber Co. v. Rule, 106 Ky., 455, 50 S.W. 685;Rape v. Mobile O.R. Co., 136 Miss., 38, 100 So., 585, 35 A.L.R., 1422; Sullivan v. Detroit, Y. A.A.R. Co.,135 Mich., 161, 98 N.W., 756, 64 L.R.A., 673, 106 Am. St. Rep., 403; Bolles v. Sachs, 37 Minn., 315,33 N.W., 862; Minter v. Tootle, Campbell Dry Goods Co.,187 Mo. App. 16, 173 S.W. 4; Arentz v. Morse, etc., Co., 249 N. Y., 439, 164 N.E., 342, 344, 62 A.L.R., 231; Bird v. J.L.Prescott Co., 89 N.J. Law, 591, 99 A., 380; Milner v. Hill, 19 Ohio Cir. Ct. R., 663; McKelvy v. Choctaw Cotton OilCo., 72 Okla. 74, 178 P., 882; Hickey v. Kiam (Tex.Civ.App.), 83 S.W. 716.

Thus, in Bentley v. Smith (Ga.), supra, the Court stated the rule as follows: "A contract for permanent employment has been held to be a contract to continue indefinitely, and terminable at any time by either of the parties."

Rape v. Mobile O.R. Co., 136 Miss., 38, 100 So., 585, 35 A.L.R., 1422, holds that, where no consideration exists other than the services contracted to be rendered, and nothing appeared in the contract to definitely fix the duration of the contract, a contract for permanent employment is not equivalent to a continuous engagement to endure as long as the employer engages in the business and has work for the employee, or so long as the employee satisfactorily performs the services required, but is in effect merely a contract of general employment terminable at will.

In Lord v. Goldberg (Cal.), supra it was held that "permanent employment" was an employment for an indefinite term terminable at will. In construing the term "permanent employment," the Court said: "It is clear that plaintiff's employment was not intended to be for life, or for any fixed or certain period. It was to be `permanent,' but that only meant that it was to continue indefinitely, and until one or the other of the parties should wish, for some good reason, to sever the relation."

"An agreement to give a person permanent employment means nothing more than that the employment is to continue indefinitely and until one or the other of the parties wishes for some good reason to sever the relation." Arentz v. MorseDry Dock Co., supra.

And similarly, the rule was applied in McKelvy v. ChoctawCotton Oil Co. (Okla.) supra, wherein it appeared that the defendant employed the plaintiff as bookkeeper under an agreement that the position would be permanent.

Where a contract of employment provided that the employment should continue until the parties mutually agreed to its termination, the Court held that the duration was indefinite and unenforceable. Faulkner v. Des Moines DrugCo., 117 Iowa., 120, 90 N.W., 585, 586. The Court said: "A contract for `permanent' employment is construed to mean nothing more than that the employment is to continue indefinitely, and until one or the other of the parties desires for some good reason to sever the relation."

Such was the view of the Court in Minter v. Tootle,Campbell Dry Goods Co., 187 Mo. App., 16 173 S.W. 4,7, wherein the Court discussed the term in the following language: "The term `permanent position' and kindred expressions in contracts of employment, as a rule, are intended to mean no more than an indefinite employment. `As a general rule the word "permanent," as applied to an employment, will be regarded as meaning nothing more than that an employee is to hold the position until one or the other of the contracting parties shall desire to terminate the connection; in which event the dissatisfied party is to have the right to be relieved of further obligations to the other, upon fair and equitable terms, and after reasonable notice. Such a term is not to be understood in the sense that the parties are to be bound together by ties which can be dissolved only by mutual consent or for sufficient reasons.' * * * We recognized the general rule that a hiring for an indefinite time is a contract determinable at the will of either party, and said that `such might be the construction of a contract for steady and constant (or permanent) employment, where the sole consideration for the employment was the services rendered during the current time of the employment.' * * * The general rule that the assurance of permanent employment will be construed as meaning an indefinite, as distinguished from a special, or merely temporary, employment, is a common sense inference founded upon common knowledge of the custom and usages of business."

In Bolles v. Sachs, 37 Minn., 315, 33 N.W., 862, 864, the Court, holding that such a contract was indefinite and not effective to entitle an employee to substantial recovery for a breach by the employer, said: "The difficulty * * * is the want of certainty in the contract respecting the period of service. The contract was perhaps effectual to give to the plaintiff the option to himself fix the duration of it; but unless he exercised that election, and actually determined the period so as to make certain that which by the terms of the contract was uncertain, he could recover only for the period of his actual service. He could not recover, as damages for the breach of the contract, the profits or remuneration which the business might have yielded during any period beyond the time when the contract was broken and the employment terminated."

The foregoing is practically an excerpt from 35 A.L.R., 1432, where a very clear annotation on this subject will be found.

In the case of Rape v. Mobile Ohio Railroad Co.,136 Miss., 38, 100 So., 585, 35 A.L.R., 1422, in which the facts are quite similar in their legal aspects to the case at bar, it was held: "A contract for permanent employment so long as the work is satisfactorily performed, which is not supported by any consideration other than the obligation of service to be performed on the one hand and wages to be paid on the other, is terminable at the pleasure of either party."

In the case just referred to plaintiff was employed by a railway company following a strike. In answer to a specific question before entering the employ of the company as to whether or not the job would be permanent, he was told, "if you go to work you will have a permanent job and you will have seniority over the others." This testimony was corrobated by other witnesses. The Court, in deciding that such a contract was terminable at the will of either party, goes quite fully into the authorities and quotes at length from them in support of this principle.

In the case of St. Louis, L.M. S. Rwy. Co. v. Matthews,64 Ark. 398, 42 S.W. 902, 39 L.R.A., 467, quite similar to but stronger than the case at bar, the Court held: "Want of mutuality in the contract will permit the dischargeat any time of a railroad engineer employed under a contract by which the employer agrees to pay him according to specified rates for his services, not to discharge him without justcause, to promote him according to specified grades of service, and when discharges of engineers are made to discharge in the order of juniority in service, where there is no agreementon his part to serve for any specified time."

The rules and working agreement refer in a number of places to employers "voluntarily leaving" the service, thus showing that an employee could quit at any time he chose.

There can be no controversy, I assume, over the proposition that where the term of service is indefinite and either party may terminate it at will, the employee cannot complain if he be discharged even without cause. Louisville N.R.Co. v. Offutt, 99 Ky., 427, 36 S.W. 181, 59 Am. St. Rep., 467; St. Louis, I.M. S.R. Co. v. Matthews, 64 Ark. 398,42 S.W. 902, 39 L.R.A., 467; Moore v. Ins. Co. (C.C. A.), 168 F., 496, 500; Wheeler v. Ins. Co. (C.C.A.), 227 F., 369, 372; Willcox Gibbs Sewing Mach. Co. v. Ewing,141 U.S. 627, 12 S.Ct., 94, 35 L.Ed., 882; Sax v. R. Co., 129 Mich., 502, 89 N.W., 368; Resener v. Watts,73 W. Va., 342, 80 S.E., 839, 51 L.R.A. (N.S.), 629; Currierv. Lumber Co., 150 N.C. 694, 64 S.E., 763, 134 Am. St. Rep., 955; Vogel v. Pekoc, 157 Ill., 339, 42 N.E., 386, 30 L.R.A., 491.

Appellant seems to question the existence of any rule requiring conductors to collect fares. Even if there were no express rule on the subject, the Court will take judicial notice that the only reason for the operation of passenger trains by railway companies is for revenue. This being true, the highest duty resting upon the conductor is scrupulously to obtain and account for that revenue. Obviously, if this duty is to be delegated by the conductor to a negro porter, there would be very little object in employing conductors.

However, there are a number of rules which expressly cover this point. Rule 831, referring to conductors, provides: "They will collect proper transportation or cash fare from each passenger." "Cash fares must be properly accounted for in accordance with current instructions."

Rule 832 provides: "It is the duty of passenger train conductors to pass entirely through their trains for the collection of tickets and fares after leaving each station where their trains stop."

It is difficult to see how any rule could impose this duty in any more definite language.

The third and fourth grounds of the motion for a directed verdict, which present the question of the effect of the Railway Labor Act of Congress, 45 U.S.C.A., § 151 et seq., do not appear to have been passed upon by the presiding Judge, and not having been urged as additional grounds to sustain the motion, are not properly before the Court and no declaration can properly be made in respect thereto.

(Note. — It has been held in several late cases that additional grounds will not be considered in a law case. I may say, for myself alone, that I very greatly question the reason or justice of that pronouncement.)

Mr. Justice Graydon has satisfactorily disposed of the additional contention of the plaintiff Stuart.

For these reasons I concur in the result announced in the leading opinion, the affirmance of the judgments appealed from.