June 10, 1931. The opinion of the Court was delivered by There are two cases involved in this appeal, one on the part of G. Walter Marshall as plaintiff and the other on the part of Henry R. Stuart as plaintiff, both being against the Charleston Western Railway Company as defendant and both involving identical points, except in the Stuart case there is an additional exception which will be disposed of hereinafter.
The cases were commenced in February, 1928, and were tried together by agreement before Circuit Judge Grimball and a jury in the fall term of the Court of Common Pleas for Hampton County, 1928. In each case Judge Grimball directed a verdict for the defendant, and after entry of judgment on each of the verdicts, due notice of intention to appeal was given by the plaintiffs.
The actions were for alleged breach of a contract of employment.
The material allegations of the complaint in the Marshallcase, which are practically identical in the Stuart case, are that the plaintiff had been in the employ of the defendant and its predecessors for approximately thirty-eight years and until the 29th of December, 1927. The plaintiff further alleged that it was agreed, contracted, and understood by and between the plaintiff and the defendant and its predecessors, which was ratified from time to time by the defendant, that the plaintiff was entering upon his life work and was to give all of his time, energy, and effort to the railroad business; was to have certain rights of seniority; was to have certain *Page 293 advancements from time to time as to both wages and salary. This contract he alleged was to remain in effect as long as he complied with all of the rules and regulations of the defendant and so long as he was not guilty of any offense which would justify his discharge. The complaint then alleges an agreement between A.W. Anderson, vice-president of the defendant, on the one part, and the order of rail conductors through S.F. Tedders, its general chairman, and a committee acting with him, on the other part, which agreement provided among other things that conductor could not be disciplined without an investigation and provides for the terms upon which such investigation would be had. The complaint further alleges that the plaintiff had been making approximately $225.00 a month; that he was now fifty-seven years old and had given up his entire life work, performing efficient service for the defendant and that he is skilled in no other calling, which is well known to the defendant; that on the 29th of December, 1927, the defendant willfully, maliciously, fraudulently, recklessly, and negligently, and in complete disregard of the contracts and agreements existing between the plaintiff and the defendant and the order of railroad conductors of the defendant and in utter disregard of the rights of the plaintiff, dismissed the plaintiff without a hearing, without notice and without cause or excuse, without an investigation as required under the terms of said contract; that he was dismissed for permitting his negro porter to collect tickets and cash fares on his train, which was not a just cause. He further alleged that it was a custom well recognized by the defendant that negro porters were allowed to perform such services on behalf of the conductors, which custom had been ratified by the officers of the defendant company; that under the mortuary table the plaintiff's expectancy was 10.05 years and asks damages in the sum of $100,000.00. The answer admitted the formal allegations of the complaint and denied the material allegations of the complaint; admitted the discharge for the cause alleged in the *Page 294 complaint; denied that the cause was insufficient or that the custom had been ratified by the defendant or its officers; and pleaded further the Statute of Frauds and Perjuries; that no memorandum or note of the contract existed in writing signed by the party to be charged or some person thereunto by him lawfully authorized; and that the action could not be maintained on the alleged verbal contract which was not to be performed within the space of one year from the making thereof.
It was upon these issues that the case was tried, and at the conclusion of the introduction of evidence therein the defendant made a motion for a directed verdict on several grounds. The presiding Judge ruled that there was no contract proven binding upon both parties and, therefore, under the decisions and authorities, a directed verdict was proper.
In due time the plaintiffs gave notice of intention to appeal upon three exceptions on behalf of Marshall and an additional exception on behalf of Stuart. The first exception alleges error on the part of his Honor in directing a verdict in favor of the defendant on the ground that the plaintiff had failed to prove any contract binding upon both parties, and the second and third exceptions are reiterations of the first ground in substance. The additional exception on the part of Stuart is that there was a binding and valid contract for permanent employment which was a part of the consideration for the release signed, in the year 1925, by Stuart releasing the defendant from liability for personal injury in consideration that he would be employed by the railroad company permanently as alleged in the complaint.
The case of Gantt v. Southern Railway, 125 S.C. 518,118 S.E., 920, 921, involves the construction of a similar contract and, unless this Court is prepared to overrule theGantt case, the Circuit Judge was right in directing a verdict on the grounds stated.
The exact question here under consideration was considered in the Gantt case. There are a few minor points of *Page 295 distinction, however, to which attention might be called between the two cases. But in the Gantt case the contract was admittedly a similar contract to the one involved here. The identical stipulation which is here invoked by the plaintiff was there invoked by the plaintiff, to wit, the section on investigation and discipline. The only distinction between the two contracts is that in the Gantt case it was Article 31 of the pamphlet under Schedules of Wages, Rules, and Regulations and refers not only to conductors but also to flagmen, baggagemen, brakemen, switch tenders, and porters, whereas in this case it refers to conductors only. The Court, in disposing of this matter in the Gantt case, uses the following language, Mr. Justice Fraser speaking, and concurred in by all members of the Court: "There is no evidence to show anyterm of employment. There was no evidence to show that there was any need for the employment of an extra brakeman, or that under the seniority rule the plaintiff was entitled to be called upon to do the extra work, if there was any. There was no testimony to show any actionable wrong, nor any basis upon which damages might have been assessed. The motion for a nonsuit should have been granted." (Italics ours.) In the Gantt case the plaintiff testified that he was hired for all time. This statement is as strong a statement as any of the statements made in the case at bar.
Under the Gantt case, therefore, the plaintiff had no contract for a definite term of employment, the breach of which would entitle him to any action against the defendant.
The plaintiff Stuart raises an additional exception in which he contends that on account of a certain injury which he suffered in the employ of defendant in 1925 he released the railroad from liability for this personal injury, and he was in turn to be kept in the employ of the railroad permanently as one of the considerations of said release. Nowhere in the record does a copy of the release appear, and the testimony of Stuart is indefinite as to the terms and conditions under which said release was signed. There *Page 296 is not sufficient testimony to warrant the basing of Stuart's cause of action upon this alleged release. It was a contract for employment extending beyond a year and, therefore, came within the Statute of Frauds (Civ. Code 1922, § 5516), and some memorandum in writing, signed by the party to be charged, should have been introduced in evidence to substantiate such claim. The defendant pleaded the Statute of Frauds, and it was incumbent upon the plaintiff to show that such memorandum did exist upon which to base his claim. There is no doubt that if in the releasing of the railroad from liability for personal injuries the railroad had agreed to give the plaintiff permanent employment the consideration would have been good and binding on both parties, but that is not the question here involved.
The rights of seniority for faithful service must not be confused with the so-called "bonus cases," where a person who performs certain services is to receive a bonus. Of course, when the services are performed the person performing them is absolutely entitled to the bonus which is already earned. Under our view of the case there is no necessity of going into the other points raised by the exceptions as the Circuit Judge was correct in directing a verdict on the grounds stated in open Court.
The judgment of this Court is that the judgment of the lower Court be affirmed.
MESSRS. JUSTICES BLEASE and STABLER concur.
MR. JUSTICE COTHRAN concurs in result.
MR. JUSTICE CARTER dissents.