Illinois Central Railroad v. Ely

83 Miss. 519 | Miss. | 1903

CalhooN, J.,

delivered the opinion of the court.

Ely had been in the service of the railroad company seven or eight months as section foreman of a section known as “White-haven,” extending south for eight miles from Memphis, when he was discharged. On his application the company gave him a paper of discharge, or “clearance,” as it is calléd. This paper, the language of which is the predicate of this proceeding, is ini the following words:

' “G-. W. Ely has been employed in the capacity of section foreman at Whitehaven, Tenn., on the Mississippi Division of the Illinois Central Railroad, from May 28, 1901, to November 25, 1901. Canse for leaving service, unsatisfactory service. Conduct good. D. StieehaN, Roadmaster.

“Approved: A. Philbrick, Superintendent.”

Ely sued the company and Philbrick and Sheehan in an action on that clearance as a libel, alleging that his services were not unsatisfactory in fact, but the reverse, and that the words of the clearance were the result of a malicious conspiracy between the defendants to damage him, knowing that it was equivalent to blacklisting him, and would prevent his ever getting railroad employment anywhere; and that the actual cause of this action was that he had given testimony some weeks before in the cause of one Ologston against the company and Sheehan, in which Clog-ston recovered large damages. Ely, after all evidence was in and instructions acted on, dismissed his case as to Philbrick, but got a verdict for $25,000 damages against the company and Sheehan.

Defendants below denied malice or conspiracy; asserted that the clearance stated the truth, that the services were unsatisf ac-tory; denied that his testimony in the other case had anything to do with his discharge; and denied that there was any publication of the clearance, other than to the company’s employes, which was privileged, and necessary for its own protection, and that of the public from incompetent employes.

Much evidence was taken on both sides to show the efficiency and inefficiency of the services of Ely. There was no proof whatever of conspiracy, and the only proof of publication was that the clearance was noted on the books of the company, as customary, that its employes had access to those books, and that it had been' enveloped and sent to Ely at his request; but, he being absent, it bad been delivered to bis wife, and by her seen and shown to Clogston, who was her brother-in-law. On the trial A. A. Clog-ston was allowed to testify twice that one Jarmon, a road supervisor of the company, had told him that Sheehan was going to have Ely discharged because of his testimony in the other case. This manifestly incompetent testimony was allowed to remain with the jury overnight, and in fact until the close of all the evidence offered by the plaintiff, when the court told the jury that, on rejection, it thought this not proper proof, and to dismiss it from their minds. The court refused to permit defendant’s witness Jarmon to testify in rebuttal, because he had not observed the rule, but had been present in court while testimony was being delivered, but then permitted plaintiff to recall Clogston to contradict the testimony of Jarmon on his original examination about the conversation in reference to the discharge, he having denied Ologston’s statement.

The competent evidence of malice is very slender indeed. Practically, it is simply that Ely says that Sheehan was cool in manner towards him after his testimony on the trial of the Clog-ston ease. Jarmón swears he had no malice, and had never heard of any. Philbriek swears he had never heard of Ely’s swearing until after the discharge. Sheehan swears he never had any malice, never changed his manner towards Ely, and in fact never spoke a dozen words to him in his life, and that the discharge and'clearance were based on Jarmon’s information. In this case it is well to recur to first principles. It is too manifest for disputation that, whether the contract for service be for a fixed term or not, an employe cannot be compelled to remain in the service of his employer, for that would be to destroy his freedom of action and establish peonage. Oorrelatively the employer cannot be compelled to retain his employe in service. The one may quit or the other may discharge at pleasure, subject only to an action, for damages where the term of employment is fixed and has not expired. Where the term is so fixed and unexpired, and there is a stipulation in the contract of employment authorizing discharge for unsatisfactory service, the employer is warranted in discharging only for the honest reason of unsatisfactory service, and cannot make that clause a shield against payment, where it is shown that the discharge, was not for that cause, but to further some other interest of his own. "Where the term is so fixed and unexpired, and there is a1 stipulation in the contract of employment authorizing discharge for unsatisfactory service, the employer is warranted in discharging only for the honest reason of unsatisfactory service and cannot make that clause a shield against payment, where it is shown that the discharge was not for that cause, but to further some other interest of his own. Where the contract of service is for a fixed period, or the term of it has expired, the employe may quit, or the employer discharge at will, and neither can be compelled to disclose his reason for the action. So, in this case, it is absolutely clear that Ely had the right to quit the service of the railroad company at his oivn pleasure, with or without cause, upon any reason or no reason, or any freak of fancy which might move him to do so, and the railroad company had an equal right to discharge him, and neither give any reason. It is certainly true, under the rules of law and common sense, that neither had any right to demand of the other a clearance paper, or a certificate of good character, or of efficient work on the one hand, or fair dealing, courteous treatment, or congeniality on the other. People cannot be compelled to give certificates even if, as a matter of morals, they ought to do so. All this is simply a matter of taste and individual conscience. It is not debatable that the language of the clearance paper before us is not libelous on its face, and that, in order to show that it was so in fact, the burden of proof is on the plaintiff, who asked for the paper, to show that it was untrue, known to be false, and published from a malicious motive. As evidence of malice or otherwise, it was clearly error to admit the testimony of A. A. Clog-ston as to Jarmon's message through him to Ely.

Tbe error is not cured by tbe statement of tbe court to tbe jury tbe next day to disregard it. Tbe lodgment bad been made witb the jury, and it was too vital as tbe only showing of malice, and it seems probable that it alone produced tbe verdict. It was likewise error to refuse to defendant tbe right to- reintroduce Jar-mon in rebuttal to contradict Clogston on tbe ground that be bad not remained under tbe rule. This amounted in this grave case .to a punishment of defendant for tbe disobedience of tbe court’s order by its witness. It was tbe witness, not tbe defendant, who should have been punished.

We do not decide whether the record sufficiently shows publication, nor do we decide tbe several other questions presented.

Reversed and remanded.