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TINNON v. MISSOURI PACIFIC RAILROAD COMPANY

November 21, 1958

W.H. TINNON, PLAINTIFF,
v.
MISSOURI PACIFIC RAILROAD COMPANY, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

The plaintiff, W.H. Tinnon, is a citizen of Arkansas and resides in the town of Cotter in Marion County, Arkansas. The defendant is a corporation organized and existing under the laws of the State of Missouri, and is engaged in the operation of railroads in the State of Arkansas.

On May 29, 1957, the plaintiff filed his complaint in which he alleged that on or about October 1, 1910, while a citizen and resident of the State of Missouri, he entered into a contract of employment with the defendant as a railroad locomotive fireman in which it was agreed, among other things, that plaintiff would continue in the employment of defendant under the terms and conditions of the written contract and agreement between the defendant and the Brotherhood of Locomotive Firemen and Engineers, a duly constituted labor organization, which written agreement was for the benefit of the plaintiff and others similarly situated; that the plaintiff at all times material herein is and has been a member in good standing of the Brotherhood of Locomotive Firemen and Engineers and/or Brotherhood of Locomotive Engineers; that contracts or agreements made or existing at all times material herein between the defendant and either of the said brotherhoods were made and are kept in force for the benefit of the plaintiff and other members of the brotherhoods.

That on about August 22, 1930, the Brotherhood of Locomotive Engineers entered into a written contract and agreement with the defendant for the benefit of the plaintiff and other employees of the defendant by the terms and conditions of which it was provided in Article 44 thereof, "no engineer shall be discharged, suspended or have notation placed against his record without just or sufficient cause." That this contract was in full force and effect on November 7, 1955.

That the plaintiff entered upon the performance of his contract and duly performed all of the conditions of the contract, agreement of scheduled wages at any and all times in force and effect until he was discharged without just cause by the defendant. The plaintiff further alleged:

    "On or about the 18th day of November, 1955, while
  plaintiff was engaged in duly carrying out his
  contract of employment, the defendant, without any
  fault on the part of the plaintiff, and specifically
  without just or sufficient cause, did discharge
  plaintiff from its employment and refused to permit
  him to carry out his agreement."

That immediately prior to his discharge the plaintiff was employed as a locomotive engineer and was earning, under the terms and conditions of his contract of employment, $8,500 annually; that by reason of the wrongful discharge plaintiff has been damaged in the sum of $12,625 that he would have and could have earned between the 18th day of November, 1955, and the 18th day of May, 1957, as wages; that plaintiff was damaged in the further sum of $96,000 that he would and could have earned between May 18, 1957, and May 18, 1969, his reasonable life expectancy.

The prayer is that plaintiff recover $108,000, with interest and costs.

In due time the defendant filed its answer in which the defendant admitted that the plaintiff was originally employed by defendant as a locomotive fireman in 1910, but denied that under the contract of employment plaintiff was to continue in the employment of the defendant under the terms and conditions of the contract or agreement between defendant and the Brotherhood of Locomotive Firemen and Engineers.

The defendant also denied that the contract or contracts between it and the labor organizations was made for the benefit of the plaintiff.

Admitted that an agreement was entered into effective September 1, 1930, between the Brotherhood of Locomotive Engineers and the defendant and that Article 44 of said agreement is as follows:

    "Article 44 — Discipline, Appeal and
  Representation.
    "a. No engineer shall be discharged, suspended or
  have notation placed against his record without just
  or sufficient cause. When an engineer is charged with
  an offense which would warrant his suspension or
  discharge, if sustained, no suspension or discharge
  shall be inflicted (except suspension pending
  investigation) without a thorough investigation
  within five (5) days before the official having
  jurisdiction, at which he may have an engineer of his
  choice assist him in the investigation, who will be
  permitted to examine witnesses. He or his
  representative shall be furnished with a copy of the
  evidence brought out at such investigation, which
  will be the basis for discipline administered. When
  an engineer is called for investigation he shall be
  notified in advance for what purpose he is called.
    "b. If the engineer is not satisfied with the
  result of the investigation, he shall have the right
  to appeal his case through the General Chairman to
  the General Superintendent and then, if necessary, to
  the General Manager. In case discharge or suspension
  is subsequently found to be unjust, he shall be
  reinstated and, if a regular engineer, be paid for
  all time he would have made on his engine or run,
  during the period of suspension, or discharge; if an
  extra man, he will be paid for time lost at rate of
  service last engaged in. If the notation against his
  record is decided to be unjust, it will be
  eliminated. When a notation is entered against an
  engineer's record, he will be furnished a copy and
  will receipt for it.
    "c. Any complaint or evidence against an engineer
  which may affect his rights or employment shall be in
  writing.
    "d. When an engineer requests additional time for
  the investigation, it will be granted and no
  compensation for such time will be allowed. When the
  Company requires additional time, the engineer will
  be allowed compensation for such time, whether found
  guilty or not."

That the agreement above referred to was in effect on the 7th day of November, 1955, and was in effect at the time of the trial. Denied that the plaintiff was discharged from his employment without just cause and admitted that on or about November 16 the plaintiff was dismissed from the service of the defendant, and alleged that said dismissal was just and for sufficient cause and based upon admitted violations of the operating rules then in effect. The prayer of the answer was that the plaintiff recover nothing and that the complaint of plaintiff be dismissed.

After some two or three pre-trial conferences the cause proceeded to trial to a jury. The trial of the case to a jury began on September 10, 1958, and was concluded the next day, September 11.

At the conclusion of the plaintiff's testimony, the defendant filed a motion to dismiss and as grounds therefor stated:

    "A. Under the undisputed facts the plaintiff's
  contract of employment was made in Arkansas and/or
  was to be performed in Arkansas, and therefore, the
  substantive law of Arkansas applies.
    "B. Under the substantive law of Arkansas the
  plaintiff's cause of action cannot be maintained and
  must be dismissed."

At the conclusion of all of the testimony, the defendant moved for a directed verdict on the following grounds:

    "A. Under the undisputed facts there being no
  substantial evidence to the contrary, the plaintiff
  was given a thorough and a fair investigation after
  proper notice, and based upon the admitted rule
  violations at the investigation, the defendant had
  the legal right to discharge the plaintiff.
    "B. There is no substantial evidence that the
  defendant acted arbitrarily so under the undisputed
  facts, the action of the defendant in discharging the
  plaintiff was a prerogative of management concerning
  which a jury is not entitled to substitute its
  judgment for that of the defendant.
    "C. Under the facts in this case the jury is not
  entitled to determine whether there was a legal
  justification to discharge.
    "D. Under the undisputed facts, the plaintiff
  violated certain rules, and there being no
  substantial evidence that the defendant acted
  arbitrarily a jury cannot be allowed to substitute
  its judgment for that of the defendant as to the
  nature or extent of the discipline administered.
    "E. The essential facts are not in dispute, so the
  Court should interpret the contract and instruct the
  jury as a matter of law that there were rule
  violations and the defendant had a legal right to
  administer the discipline assessed against the
  plaintiff.
    "F. Under the undisputed facts the plaintiff's
  contract of employment was made in Arkansas and/or
  was to be performed in Arkansas, and therefore, the
  substantive law of Arkansas applies, and under the
  substantive law of Arkansas the plaintiff's cause of
  action cannot be maintained and must be dismissed."

Action on the motion to dismiss was reserved by the court and the motion for directed verdict in favor of defendant was denied. The case was argued and submitted to the jury which considered the case until the afternoon of September 12, when the jury reported that it was unable to reach a verdict, and an order of mistrial was entered.

On September 20, 1958, the defendant, pursuant to the provisions of Rule 50, F.R.Civ.Proc., 28 U.S.C.A., moved the court to enter judgment for it in accordance with its motion for a directed verdict filed at the close of all of the evidence. This motion substantially ...


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