*1 sustained; suspen- ruling consider our in that subject. cisions on this We interpreted existing sion of publication cannot be decision inconsistent with printing; to body permanent suspension ac- mean parties were federal law. The corporate in Article XI means provisions holding corded a of the review merger appellant; in merits applicable or consolidation on law holding permanent suspension pub- principles in accepted with accordance go lication business as of what meant to out of construction and on basis agreement. publisher newspaper; invading Neither in said their of a province lan- respondents, appellant, jury by construing to were entitled of the nor XI; guage failing con- prevail on intended Article the basis of what basis say said, controlling or on the sider local law with might have or decisions of conflict, may opinion of the effect a certain construction this said any upon peace, reargument on stitute issues deter- have industrial nor mere Sup.Ct.Rule except opinion. contentions. mined basis the merits of their Under 83.16, reargument such issues V.A.M.R. Evening Nothing in Smith v. News said carefully disregarded. will be We have Association, U.S. 83 S.Ct. these contentions seriatim and examined any other United L.Ed.2d that no matters of satisfied ourselves Supreme cited in re- Court decisions States mis- law fact have been overlooked or against spondents’ suggestions, militates interpreted. rehearing The motion for a In we have none the conclusions reached. or to transfer is overruled. question there of con- of these cases was pre- analogous or similar to struction Assuming that we are
sented this case. substan-
obliged apply federal follow policy, the United States
tive labor law and has not univer-
Supreme issued Court disagreement in all
sal ukase that cases bargaining parties to collective between the Joseph al., Appellants, P. MONTEROSSO et policy federal labor law and agreements v. position labor union that the dictates arbitrarily or that be sustained ST. GLOBE-DEMOCRAT PUB LOUIS COMPANY, Respondent. labor relations LISHING preservation of harmonious requires capitulation employers in No. 49603. interpretation questions of cases all where Missouri, Supreme Court of case, arise, regardless of merits of respondents imply. seem to this is what Division No. 1. but April 8, 1963. on its Having case merits decided it to be our function to do not conceive we Rehearing or to Transfer Motion position in this respondents’ case sustain En Banc Denied June Court summarily it be returned willy-nilly, “lest Supreme Court this Court States,” respondents’ counsel United suggestions. 12 of their page on
warn
Respondents’ contentions that we
misinterpreted holding law in incorporated into were not Laws
General improper prin in applying agreement; review; that the motion
ciples holding have been verdict should a directed *2 Union, Typographical
of the International Louis of St. against corporate publisher pay, severance for vacation *3 290.090, V.A. pay, penalties and under § agree- M.S., bargaining collective under a on jury without ment. the court Tried to facts, court agreed an statement of $17,- plaintiffs for judgment for rendered but pay, plus 462.90 interest for vacation plaintiffs’ other claims. Globe-Dem- denied appeal appeal. from ocrat did not Plaintiffs their judgment overruling and order motions, contending after-trial now claims denying their for penalties and than (totaling interest more $140,000) the court con- misconstrued the jurisdiction tract. because the We $15,000, controversy amount exceeds appeal we merits consider on its notwith- standing plaintiffs appeal did from judgment merits, on the because that was plaintiffs. the evident intention of employees Plaintiffs were “regu- of and lar situation holders” with the Globe-Demo- crat. The employment terms their were governed by a bargaining collective con- tract between Mailers’ Union and Louis St. Newspaper Publishers’ Association. corporations association consists of the two publish Post-Dispatch St. Louis and the Louis St. Globe-Democrat. The preamble contract consisted aof and six- relating Jurisdiction, Hiring, teen articles Disputes Discharges, Wages Hours, Foremen, Priority, Military Serv- ice, Apprentices, Holidays, Vacations, Dis- Jury Pay, missal Service-Voting Time— Pay, Funeral Sickness and Disability Ben- efits, and other miscellaneous matters. particularly We are Ar- concerned with XI, Dismissal Pay: ticle Chancellor, Duff and D. John Jerome J. employe regular has had Any who “1. Louis, appellants. for St. year one more than who for situation force shall receive reduce the laid off Hocker, MacGreevy, & Goodwin Lon pay on the basis one week’s dismissal Hocker, Louis, respondent. St. year priority. each continuous HOUSER, Commissioner. “2, merger, event of consolida- In the suspension publica- by sixty-four tion This an action members newspaper by any covered Union, Mailers’ Local tion of St. Louis No. tract, employes all who lose sentative of plaintiffs). picket A line was thereby pay as receive severance erected around premises of Globe-Dem- follows: ocrat that time to the date of the set- tlement strike, May
“(a) pri- Employes months having six ority standing, (6) pay. six weeks’ Plaintiffs picket refused to cross the line Guild, plaintiffs and none of the year or “(b) Employes having one reported to Globe-Democrat for work from weeks’ priority standing, (12) more twelve picket the time the put up. line was pay. *4 All of plaintiffs the employment took pay “3. Such or severance dismissal elsewhere during period the between Feb- straight employe’s shall regular he at the ruary 21 1, 1959, and publication when June Priority standing shall pay. time rate following Globe-Democrat was resumed chapel offi- be as on the books of recorded settlement of the Guild strike. at the cers and Publishers the books February 27, Mailers’ lay off, suspension, merger After 1959 the time of such “priority at Post- Union “froze” the board” consolidation.” Dispatch and the Mailers’ Un- members of provisions particularly Other should be Post-Dispatch taking employment ion at noted. (not remained in of “extras” capacity provides Paragraph of the Preamble acquired regular holders) situation and picket employes a that the refusal of cross to priority standing some time after until line issued where a strike sanction has been wage rates and condi- 1959. Their June by Typographical International does Union employment Post-Dispatch tions at contract, and shall constitute breach bargain- as set in collective tinued forth described, employes’ not affect accrued benefits and above. ing contract rights (except employe would not be February 27, corporations On paid for time lost as a result of his refusal publish and Post- which Globe-Democrat line). picket to a cross by Dispatch which entered into a provides: 8 of the Paragraph Preamble principal physical its Globe-Democrat sold “All wages, vacation credits and severance subject temporary properties, to a lease- be an credits shall considered as earned quarters, back of and editorial business prior equity shall claim Company, and publisher Pulitzer merger, permanent suspension event of Post-Dispatch, by Louis and St. liquidation. equivalent The cash printed was to be this equity shall paid immediately such earned be by defendant Pulitzer following settle- upon any employe’s employ- ment of strike. Pursuant to the contract merger, permanent ment as a such result a deed conveying Globe-Democrat executed liquidation.” suspension or building to Pulitzer in which it had accounting its and conducted business of- 7, Article Paragraph IV states dollars fices, and a bill of sale the bulk of its the “wages journey- and cents what of all equipment, presses mechanical and machin- be, hourly, an daily men” on and week- ery, including equipment all of by used ly basis. plaintiffs in their normal with 21, 1959, February February On about 2:30 On Globe-Democrat. m., begun a president publisher a. strike St. Louis News- Globe-Demo- Guild, paper representatives which was the bargaining crat notified the of all of the representative crafts, employ- including plaintiffs’ of Globe-Democrat mechanical rep- editorial, resentatives, a ees business and maintenance and mailed letter to all em- (not bargaining repre- part classifications ployees, in as follows: print and to have efficiency shop in Louis area economy the St. greater “To effect printed edition limited a much curtailed and operation, Globe-Demo- mechanical The paper, enough with had members today agreement crat entered into an employees which mechanical of Globe-Dem- Post-Dispatch under craft St. Louis willing ocrat the mechanical printed been to do The Globe-Democrat will Globe- work such circumstances. Post-Dispatch, strike the Guild when if published Democrat would have is settled. had been newspaper during strike if it property physical sale is “The reasonably possible were do so. Efforts only. editorial, advertising, circula- The news- manager of the made the business two departments of the tion and business paper persuade the unions certain of newspapers entirely separate. will he during return their members to work complete- Globe-Democrat will continue as period May, but since as late as every independent newspaper sense ly employees none of the would return the word. work, rent no concerted effort was made to *5 equipment, rented. none was and opera- “The consolidation of mechanical newspapers finds competing tions between hearing Unemployment At a before the throughout many great precedent in cities 18, Compensation May Commission on 1959 * * * America, costs as the mechanical manager of the business Globe-Democrat daily newspaper continue publishing a employer-employee testified that rela- * * *. to rise. tionship of the Mailers’ Union members and Globe-Democrat in effect before Febru- necessary move is made because “This 21, continued, ary change, had without 1959 Newspaper of the Louis St. the demands employees and that none of had been ** *. Guild. off, suspended, laid or terminated since date; will job rights mechanical unions “Members of the that their status and work priority basis in the employed prejudiced; on a had not been there had be they conduct, operation. If mechanical been no violence or unlawful solidated employed, pro- the dismissal discharge; other basis for that none of all cannot representatives mechanical contracts the current them or their union had visions * * they Globe-Democrat that taken apply. notified had will any steps employer-em- to terminate the period strike Throughout ployee relationship prior that existed maintained the status Globe-Democrat 21, February Blue Shield Cross-Blue plaintiffs under 25, program. (following a group life insurance On hiatus of and program June days by caused fourteen strike of members manager opinion of the business In the Stereotypers’ against Union Post- it would of Globe-Democrat publisher and Dispatch) plaintiffs most of the became possible, notwithstanding been have Post-Dispatch holders” at “situation printing and to strike, prepared have they contract under which had the same during the Globe-Democrat published have previously worked Globe-Democrat. 21-27, super- using February period positions who did not obtain such Those pro- on strike for the personnel not visory done so if had so could have wished. advertising and news content duction May dates between 29 ánd employees, members At various enough if copy, crafts, 1959 Globe-Democrat received willing August had been mechanical plaintiffs counsel for each of necessary from letters picket line to do cross payment wages February 27, making demand for as work, and after mechanical 290.110, and letter of provided dismissal possible to have been have § would it 290.140, Each provided V.A.M.S. equipment at other as § some mechanical rented '486
such letter was only letter with the answered We are here concerned addressee stating paragraph that the word “consolidation” as used employed supra, was as a date he plaintiffs mailer from the for in court the lower employ February frankly entered the until admitted had there been you “when report merger publica- failed to You suspension to work. since, reported have and we for work tion. you understand taken Plaintiffs contend that the consolidation Post-Dispatch. right to benefits operations the mechanical of Globe-Dem pay, vacation ocrat with those of Pulitzer
you assert, subject pending are Company, publisher Post-Dispatch, your arbitration with union under Article was such a “consolidation” otherwise III of the last current contract.” came within the of the entire coverage employee showing The data on each provision, when the contract a whole is amounts of pay, the severance vacation construed; properly are not that the words penalty (60 days due, wages) if entitled unambiguous, clear and as the trial court items, upon. recover such agreed decided, require They but construction. appeal say plaintiffs On this the court improperly upon make three relied ab points. stract definitions to reach its result and failed consider apply following ques point Plaintiffs’ first raises subject rules: the whole matter must be Respon tion whether “the consolidation of *6 from considered end to and from corner end operations’‘ dents mechanical within comes to corner as well as all terms of the con XI, meaning of paragraph the Article tract, may modify, for one clause limit or supra. other; illuminate the the that intention of parties gathered the must be from a con language The trial court ruled that the of provisions; sideration all of the that 2 was paragraph unambiguous, of clear and greater regard is to to be had the clear in concise; proof that the showed no consoli- parties any particular tention of the to than dation, e., corporation springing new i. they may in attempting words have used to to into existence assume the liabilities express intent; that in ascertaining that corporations ceasing former dissolved and intent the that court should consider the happened exist; that what a to was “reduc- relationship parties, subject of the the mat by contracting tion of force out the mechan- contract, usages the ter of the of the busi business,” the ical end of and that these ness, surrounding the facts and circum subject were not to the strained con- facts attending the execution the con stances struction that constituted a “consolida- apparent the purpose tract and which the tion.” parties accomplish. were to undertaking pertinent portion para- the We restate Applying principles, plain these for which the merger, 2: “In event of consoli- graph cases, plain cite tiffs numerous Missouri suspension publica- dation or tiffs contend this is not a contract between newspaper by any by tion covered this corporations with corporate ownership and contract, employes employment all who lose matter, subject its control but a as collective thereby pay receive severance as fol- agreement bargaining unincorpo with an * * lows : employees rated association of the obvious “newspaper” obviously protect employee of which is purpose The word refers to the company, not publishing against to sudden loss of brought the to the any by Plaintiffs manip to concede about business maneuver or publication. seem phraseology it might during “consolidated ulations undertake the term by the use publishing company” para- agreement; in that the obvious inten with another provide petition. tion any their was severance under graph 4 of
487 by the evi- 2 shown ing paragraph might severance cause circumstances which occurred; do impact the facts that dence relation employer-employee contem- any fit three situations Plaintiffs beyond control. his of forces rights to anticipate plated, plaintiffs’ and therefore patently impossible to say “It is the contract have classify pay under for, provide much less has in issue can arise not been describe, every established. Where situation corpora large judicial been so as call for management of a raised industrial * * paragraph lan language is struction of the *. It obvious tion subject provision Ackerman v. in same result reached. guage used both Paragraph Louis), provision Publishing (St. found Co. in the related par Mo., 469; Preamble, (8), page S.W.2d Allen v. Globe- every Mo., (St. Louis), cover attempting Democrat Co. ties were here failure ad- might The No considerations situation which arise. S.W.2d 460. which vanced attempt accomplish here invalidate conclusions an fact virtually impossible alter the does not reached those cases. intention to of an obvious the existence ** * plain substance of sum and parties con do so. [H]ad the drafters argument although is that tiffs’ time the
templated such at the a maneuver provide executed, contract failed it have been contract was would actually happened, contingency that expressly provided appropriate * * * obvious, should and this Court omission was clause. Such an obvious omission implication, pro provision, by all the add new provide for a wherein situation '[to upon of em loss jobs department viding con for severance of a are lost due to ployment circumstances department solidation of with the like employer-em department in a cause the severance corporation] another beyond may ployee relation, result supplied implication. of forces * n * has no employee’s be con control. This Court intended to [T]he courts expressed power this action. The thought rather than trolled *7 Meyer litigants, employed express contracts for to it.” cannot make the words 580, 594, say Christopher, Mo. Plaintiffs that consideration of Pre v. 176 75 S.W. amble, 8, 754, by judicial Paragraph (1) 750, or contracts Paragraph and of rewrite XI, Publishing interpretation interpretation. in of Article assists Globe-Democrat Commission, Mo.App., XI, paragraph of Article v. Industrial Co. 846, is not a 851(2). This suit 301 S.W.2d opinion language We are of the that the contract, but action to re an to reform a paragraph 2 to relating of “consolidation” Plain under the terms of contract. cover capable clear and unambiguous is of all, upon if basis prevail, tiffs must being given enforced and effect without provisions written into of the contractual to judicial resort to construction determine is to determine the contract. Our function parties; paragraph the intention of said, they intended what what contemplates possible, specifically 2 three what cannot concerned with and we be in which defined and situations delimited say. to Chater v. may intended Company, a 584, 859, 863, Globe-Democrat Carter, 35 238 S.Ct. U.S. corporation, might go out of business must Their intention be L.Ed. 1462. 59 publisher newspaper; language used of a word in gathered from Land v. C. Nichols consolidation Strauss refers to of contract. “consolidation” J. 205, 211, Co., 37 S.W.2d corporations, 327 Mo. not to consolidation pro langauge make 508(2). That fails operations any department or mechanical pay stipu under the Globe-Democrat; partial function of for or vision plain facts. mean- lated that no consolidation within Plaintiffs’ point—that longer second employ; and “[t]he servant or such
Employees Employment’ as a result employee request ‘Lost may writing of his op of the consolidation mechanical foreman the keeper or his time to have Respondent”—is not money him, erations of sufficient due aor valid check there- question for, any raise be appellate any review sent to station or office where'a ruling regular cause it fails to state actions or agent kept; what money is and if the aforesaid, the court are be erroneous claimed to or a therefor, valid check does why it is the court was contended reach such station or within office seven ruling. any days wrong action or It is an requested, from the date it is so then penalty abstract not shown be related as a statement nonpayment for such any wages action or It ruling court. employee such servant or Supreme 83.05(e). violates Rule continue Court from the discharge date of the refusal to employ, further at the rate same paid; provided, until wages shall not point that even Nevertheless we out days, continue sixty more than unless an employment though plaintiffs as a result lost action therefor shall be commenced within printing physical plant of the sale time.” equipment of and the exe printing cution Post- contract with due, was pay no severance we Since proof Dispatch, these facts would not question confine ourselves to the whether plaintiffs pay, entitle to severance since unlawfully pay vacation withheld in employment was such loss of not included violation of 290.110. This section is § any provided the contingencies penal character, Durant v. Industrial merger, per the contract: consolidation or Co., Mfg. Mo.App. 266, Products suspension Only publication. manent 574; Quinn Sayman S.W.2d T. M. v. “thereby” employment loss of would have Co., Mo.App., Products 296 S.W. pay. plaintiffs entitled to severance Plain strictly construed. having merger tiffs admitted there was suspension publication, Unpaid vacation under the having and this there Court found was no bargaining collective not con did consolidation, there was no contractual lia * * * “unpaid wages stitute then earned bility for severance on basis of loss rate,” at the contract within the meaning any cause. other X, Vacations, Neither 290.110. Article § contract, provision nor other point Plaintiffs’ third trial *8 pay classifies for as wages, vacations ex appel- court erred its refusal award implication. pressly contrary, the or On penalty payments provided by the lants § provisions clearly other indicate that it was 290.110, V.A.M.S., for unlawful withhold- contemplation not within of par the the wages statute, ing of the of violation pay regarded ties that vacation be as the pay and because vacation are equivalent part or a of included as of an law, in fact and in under wages the con- employee’s wages. Wages and vacation tract, under the and statute. separate credits are treated as and distinct provides: 290.110 Preamble, Paragraph Section “Whenever 8 the of wherein corporation any doing business in wages, state “All vacation credits and severance discharge, cause, shall with or without pay” or are to as equity. referred an earned any employ IV, refuse further separate dealing specifi servant or In the Article employee thereof, the unpaid wages Hours, cally subject the Wages with and employee such servant or then pay earned no reference is made to at vacation but rate, the contract provision without abatement or there is a definite that “the wages de- * ** duction, shall journeymen be and become due pay- and of all be” shall day discharge able on specified, certain or refusal a number of dollars and
489 requests for Finally, plaintiffs’ cents, rates day night at and listed timely. payment dollars under 290.110 were at amounts hour and certain § request for per While the per and week. Overtime time within day and cents unpaid half stated prescribed wages and is not price at one be made rates are shall wages” by necessary implication it is that “regular hourly “All clear of the rate.” request time cash a paid weekly in must be short are to be made within agreed objects con discharge. rates” after wage “The One of the current fumds. quick payment mini to be statute is to agreed that are effect tained in article unpaid that at rates, wage provision wages made earner of due and mum and is By proviso it discharge. basis.” time “compensation be on time contemplated entire for reading that unless actions conclude from a We prescribed be within parties penalty differentiated commenced that pay; sixty wage days discharge and refusal from date tween vacation one employ, penalty continuing are not further agreement same; statutory sixty words wages will not continue more than and the ** * days. request at “unpaid wages unpaid wages then earned need While apply discharge, immediately under this contract not be made after the contract rate” prescribed in Article only wage rates it must be made within time. to the a reasonable pay Every request application to vacation IV have no in the instant case was and made * * therein; ninety days discharge, at “wages credits reserved least after date of under 290.110 and in some at contract rate” cases much as earned one hundred § People pay, days rate v. eighty Having refer the basic thereafter. mind 568, 571, Vetri, 401, objects statute, purposes N.Y. 131 N.E.2d 309 and the e., payable sixty-day actions, payments due and limitation on wage i. we rule that intervals, Corpora ninety days is regular length Conlon-Moore an unreasonable request 23 Ill.2d N.E.2d time Johnston, within which to make tion v. unpaid wages to vacation have no reference 290.110 and there § priority, plaintiffs’ requests fore on the basis came too late. calculated credits preced days during the worked number affirmed, judgment The should be and it year, payable only once ing calendar sois ordered. sum. and in one HOLMAN, CC., concur. COIL purpose giving Although for credi wage other priority earners over Act, a, sub. Bankruptcy
tors under § PER CURIAM. a, par. sub. par. (2), U.S.C.A. § by HOUSER, opinion C., foregoing that vacation con has been held (2), it opinion adopted as the court. “wages” as that term is used in stitutes Cir., Act, Inc., Ledger, Public In re Judges concur. All of 762; Cafeterias, In re Wil-Low 161 F.2d *9 Rehearing Motion for On Cir., 429, Inc., 111 F.2d these are cases En Transfer Court Banc. involved, penalty and their may cases in not be extended to holdings PER CURIAM. penal as provision such 290.110.
volving a § Furthermore, Ledger the Public rehearing motion or to In their for trans- ap cases it Cafeterias does Wil-Low appellants contend, banc court to the en fer wages defined pear that time, question that a federal first for the way “wages” are defined in the limited involved, and that case this should be by implication contract, or excluded by instant the federal common law or governed law, wages. labor inter- definition substantive federal vacation est of peace. per industrial The curiam
opinions day v. this filed in Ackerman Co., Mo., Publishing
S.W.2d and Irwin v. Globe-Democrat Co., Mo., dis- 368 S.W.2d
pose ap- adversely these contentions
pellants.
Appellants contend further
our construction word “consolida
tion” contradicts the clear intention expressed in the clause same reargu
the contract. This constitutes mere
ment one of the issues determined
opinion, Rule Supreme and under Court
83.16, disregarded. V.A.M.R. is rehearing motion for or to transfer
is overruled. Missouri, Respondent,
STATE
v. Rodger BECK, Jerry Appellant. Hill, City, appellant. Wm. Kansas J. No. 49665. Gen., Eagleton, Atty. Thomas F. H. John Denman, Gen., Atty. City, Asst. Jefferson Supreme Missouri, Court of respondent. Division No. 1. June HOLMAN, Commissioner.
Defendant, Beck, Jerry Rodger . rape guilty punish- found of forcible and his years’ jury impris- ment fixed five penitentiary. onment See Section ap- SS9.260RSMo V.A.M.S. He has pealed ensuing judgment. from the point upon The sole briefed defendant appeal is that the evidence is insufficient support the conviction hence the trial should have sustained his court motion for acquittal judgment of filed at the close of *10 specifically all evidence. He contends there substantial evidence of actual or constructive force at time the act intercourse and that the evidence prosecutrix did not discloses make the