In this action for damages for breach of a railroad union contract in discharging F. S. Johnson, a conductor, without good and sufficient cause the plaintiff has recovered a judgment of $8,109.82 against the trustee of the Missouri Pacific Railway Company. Mr. Johnson died on September 1, 1949, unexpectedly, during the pendency of his action and the cause was continued by his wife as the administratrix of his estate.
The specific grounds of Mr. Johnson's discharge, as alleged in his petition, were for violation of "Rules G-700-703" on June 12, 1948, while reporting for duty as a conductor on one of the appellant's passenger trains. Rules 700 and 703 are rather general rules of conduct requiring employees to be alert at all times and to "devote themselves exclusively to the service." Among other things "Constant presence of mind to insure safety to themselves and others, is the primary duty of all employees" and they "are prohibited from using their time while off duty in a manner that may unfit them for the safe, prompt and efficient performance of their respective duties for the railroad." Rule G is as follows: "The use of intoxicants or narcotics is prohibited." The railroad's evidence was that when Mr. Johnson reported for duty as a conductor on June 12, 1948, and after he had entered upon the performance of his duties, he was drunk. The trainmaster and the assistant superintendent of the division testified that Mr. Johnson was unsteady when he walked, staggered and weaved, that he talked unnaturally for him, that there was a strong odor of whiskey upon his breath and that he was intoxicated. It was for this reason that he was relieved and, after investigation, discharged from the service for violation of Rules G, 700 and 703.
Preliminary to the essential question presented respondent's counsel argue, as is the fact, that discipline, in general is necessarily administered under Articles 54 and 55 of the contract. Article 54 provides that a conductor "may be discharged from the service of the Company for good and
As to the second ground of wrongful discharge alleged in the petition, "without a fair and impartial trial" (Article 55), before the railroad officials, there is no evidence of probative force to support the charge and the trial court did not err in refusing to charge the jury upon this subject. Mr. Johnson was represented at the investigation by the general chairman of his railroad union. In the investigation there was no objection and no evidence that he was not being given a fair hearing. The official who conducted the investigation, another trainmaster, had the right to recommend punishment but he had no power to discharge Mr. Johnson. When Mr. Johnson failed to appear after the investigation had been set within the required five days this official displayed some pique, but that does not prove that Mr. Johnson did not have a fair and impartial hearing. Upon the basis of the investigation and recommendation Mr. Johnson was discharged by the superintendent and he did not appeal or ask for a hearing before other officials of the railroad as he had a right to do under the contract. In these circumstances there was no evidence tending to show that he did not have a fair and impartial hearing and the trial court did not err in refusing to submit this issue to the jury. Craig v. Thompson, Mo.Sup., 244 S.W.2d 37. The meritorious question is whether he was discharged for "good and sufficient causes" (Article 54) under the contract.
Upon this essentially meritorious question, Mr. Johnson's discharge for violation of Rules G, 700 and 703, the appellant contends that there is no evidence of probative force that Mr. Johnson was wrongfully discharged and therefore the appellant was entitled to a directed verdict. As we have said, the railroad's claim and evidence was that Mr. Johnson reported for duty and entered upon the performance of his duties while drunk and such conduct, if found, was certainly a "gross violation of rules" (Article 54) and ground for discharge under the contract. The respondent's claim was that her husband was not intoxicated on June 12th and therefore the railroad wrongfully discharged him. In addition to her claim that he was not intoxicated she also claimed that he had had neither the opportunity nor the time in which to become intoxicated on the occasion of his reporting for duty as a conductor on June 12, 1948. Mr. Johnson
In connection with the principal issue the appellant urges that the court tried the case upon an erroneous theory, as indicated by the giving and refusal of instructions, that violation of Rule G alone, "use of intoxicants," was not a justifiable ground of discharge unless it was also shown that Mr. Johnson had used intoxicants at the time and "was thereby unfit for service as a conductor on appellant's train, and that under the contract it would take such an act and condition before a violation of Rule G would be a gross violation (of rules or orders) (Article 54) and his discharge by the appellant justifiable." It is not apparent from the record that the trial court forced this view upon the parties. From the beginning it is obvious that the railroad did not rely alone upon a mere technical or slight infraction of Rule G as a sufficient ground of discharge, the official notice specified Rules G and 700 and 703. All the railroad's evidence was directed to the proposition that Mr. Johnson was drunk and the witnesses, the trainmaster and the assistant superintendent, expressed the opinion, by reason of his conduct and condition that he "was unfit to carry out the duties of a conductor." The appellant's refused instruction on this subject cryptically hypothesized that Mr. Johnson "shortly prior to reporting for or performing the duties as a conductor on defendant's train No. 15, had violated Rule `G', described in evidence and was discharged by reason and on account thereof." If a mere technical infraction of the
In the principal instruction hypothesizing the defendant's liability the instruction concludes "You are further instructed that defendant has the burden of proving by the greater weight or preponderance of the credible evidence that the deceased F. S. Johnson had so used intoxicants and was unfit for service in violation of defendant's Rule G, mentioned in evidence, and if defendant has failed in sustaining that burden, or you find the weight of the credible evidence is evenly balanced between plaintiff and defendant, then your verdict should be for plaintiff and against defendant." The appellant now urges that the giving of this instruction was prejudicially erroneous for the reason that it improperly placed the burden of proof upon the defendant as this court held in Craig v. Thompson in November 1951. The respondent contends, since this case was tried in May 1951, prior to the decision of the Craig case, that the opinion upon the former appeal in Johnson v. Thompson became and remained the law of the case even though expressly overruled on this specific point and that the trial court could not be convicted of error in giving the instruction. The respondent does not cite any authorities to support her view and the rule is to the contrary, this court is not precluded by the prior opinion of the court of appeals. Harke v. Haase, 335 Mo. 1104, 1112, 75 S.W.2d 1001, 1005; Lober v. Kansas City, 339 Mo. 1087, 100 S.W.2d 267; Keele v. Atchison, T. & S. F. Ry. Co., 258 Mo. 62, 81-82, 167 S.W. 433. The respondent urges, if her first argument is not applicable, that the case falls within the exception, or more accurately, the distinction noted in the Craig case, —"cases involving a contract for a definite term." Craig v. Thompson, 244 S.W.2d, loc. cit. 42. The contention is that since Mr. Johnson died on September 1, 1949 the case has, in effect, become "exactly the same as if the contract of employment had read that Conductor Johnson was to be employed until September 1, 1949," a contract for a definite period of time and therefore the burden was upon the employer to prove that the discharge before the expiration of the term was for good cause. Haxton v. Gilsonite Const. Co., 134 Mo.App. 360, 114 S.W. 577. But that was not the contract and subsequent events do not change it, so far as appears from the record the contract was for an indefinite period of time, Jenkins v. Thompson, Mo. Sup., 251 S.W.2d 325, and he could only be discharged after a hearing and for good and sufficient causes. As was expressly ruled in Craig v. Thompson the instruction was prejudicially erroneous and for that reason the judgment is reversed and the cause remanded.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
ELLISON, J., and LEEDY, P. J., concur.
TIPTON, J., concurs in result.