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Jorgensen v. Pennsylvania Railroad Co.

Decided: January 20, 1958.

CARL JORGENSEN, PLAINTIFF-RESPONDENT,
v.
THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT, AND JOHN E. ULICH, DEFENDANT



On certified appeal to the Appellate Division from the Law Division of the Superior Court.

For affirmance in part and reversal in part -- Justices Wachenfeld, Burling, Jacobs and Proctor. For reversal in toto -- Justice Heher. The opinion of the court was delivered by Proctor, J. Weintraub, C.J. (concurring). Heher, J. (dissenting in part). Weintraub, C.J., concurring in result.

Proctor

[25 NJ Page 544] The defendant appeals from a judgment awarding the plaintiff, a former employee, substantial damages for wrongful discharge, defamation and false imprisonment. This is the second judgment recovered by

the plaintiff. The first, which was entered upon jury verdicts for $80,000 and reduced by the trial court to $60,000, was reversed by the Appellate Division in Jorgensen v. Pennsylvania Railroad Co., 38 N.J. Super. 317 (1955), and remanded for a new trial. Upon remand the plaintiff recovered the present judgment entered upon jury verdicts for $104,000, which was reduced by the trial court to $85,000. The defendant has impugned all the verdicts recovered on various grounds. Because of the importance of the basic issue as to whether an employee may recover damages for an alleged wrongful discharge in a court of law in a case of this kind, we certified the cause on our own motion prior to consideration by the Appellate Division.

Plaintiff is a dining car steward who had been employed by the defendant for seven and one-half years prior to June 16, 1953. As steward he was in charge of the dining car, the food and equipment, and supervised the crew assigned to it and the cooks, waiters and additional help.

On June 16, 1953 the train to which the plaintiff's dining car was attached arrived in the Pennsylvania Railroad Station in New York City at 9:30 A.M. Upon its arrival the defendant's Supervisor of Service, John E. Ulich, and two railroad police officers, Anthony E. Canino and Leslie B. Olcott, entered the dining car, and Ulich announced that a spot bag inspection was to be made of the members of the crew. At this point there was widely divergent testimony at the trial below as to what actually occurred.

Jorgensen testified that he had previously taken a small piece of ham from the kitchen refrigerator in order to make a sandwich for himself, but since he found no time to do so had placed it in a small bar refrigerator in the car. As he was preparing to leave the car he remembered the piece of ham that he had left in the bar refrigerator, and with the intention of returning it to the larger kitchen refrigerator he picked it up in a napkin and started to walk toward the kitchen refrigerator with the ham in one hand and his personal bag in the other, when Ulich and the two railroad police officers entered and announced the bag inspection.

Jorgensen's version of this part of the incident was substantially corroborated by three members of the dining car crew.

Jorgensen further testified that upon the announcement of the inspection he stopped and placed his bag on a table and placed the ham next to it. He stated that Ulich then walked over toward him, picked the ham up from the table and told one of the other officers: "Hold that man," and after a brief conference with the other officers Ulich told Jorgensen to follow him and made no reply to Jorgensen's question: "What are you trying to do to me?"

However, Ulich's testimony was entirely at odds with this version of the incident. He testified that when he entered the dining car the plaintiff was standing with his personal bag on a table, with one hand on the bag, and that when the bag inspection was announced the plaintiff moved back and forth and seemed quite nervous. Ulich testified that the plaintiff then said: "Mr. Ulich, can't you forget this?" and upon receiving no reply from Ulich, the plaintiff then opened his bag and took from within it a small quantity of ham wrapped in a company napkin and placed it on the table. He further testified that Jorgensen then said: "What are you going to do with me?" Olcott corroborated Ulich's testimony that the plaintiff had taken the ham from his bag. Canino's testimony corroborated Ulich's testimony that Jorgensen said: "What are you going to do with me?"

Plaintiff was then taken to the railroad police department office located in the Pennsylvania Station and remained there for approximately two and one-half hours. Jorgensen testified that during this period a union representative who came in to look after his interests was denied permission to do so and told to leave. He also testified that he was refused permission to telephone his wife during this period. This was denied by Ulich.

Jorgensen testified that while he was in the police department office he was asked to make a statement concerning the ham but that the police officers refused to believe his account of the incident and instead ordered him to sign a

resignation. Defendant's witnesses testified that Jorgensen refused to make any statement but had voluntarily offered to resign. Jorgensen signed a resignation which he later repudiated, claiming that it was the product of threats and coercion and that he signed it only to obtain his release.

When he was permitted to leave, Jorgensen turned in his receipts from the trip, meal checks, and his railroad pass and immediately upon leaving the station, spoke to his union representative and told him what had occurred. After speaking to the union representative the plaintiff went to see J. A. Geren, the Superintendent of Dining Car Service, and A. J. Ellis, the chairman of the plaintiff's union, and told each of them what had happened. Plaintiff then engaged an attorney to represent him.

The plaintiff was a member of Lodge No. 162 of the Brotherhood of Railroad Trainmen, the accredited statutory representative of the employees for collective bargaining purposes under the Railway Labor Act, 44 Stat. 577 (1926), 45 U.S.C.A. §§ 151-188 (1954). A contract regulating the wages, hours and working conditions of the employees, including the plaintiff, was in effect between the Brotherhood and the railroad at this time. The contract provides, inter alia:

" Rule No. 6 -- Discipline.

6- A -1. Employes will not be suspended nor dismissed from the service without a fair and impartial trial; neither will they be held off duty for minor offenses pending investigation or decision. Witnesses will be examined separately, but in event of conflicting testimony, those whose evidence conflicts will be examined together. Employes will be notified in writing ten days prior to date suspension takes effect.

6- A -3. An employe required to attend investigation may be accompanied by an employe of his own selection, who will be permitted to question witnesses so far as the interests of the employe is concerned."

" Rule No. 7 -- Appeals

7- A -1. An employe who considers that an injustice has been done him, and who has appealed his case in writing to his Superintendent within ten days, will be given a hearing at which he may be accompanied by an employe from the district in which he is

employed to assist him in presenting his case. After his appeal has been acted upon by the Superintendent, he may, if he so desires, be represented before the Superintendent (of the Dining Car Service) and General Superintendent (later changed to Manager, Dining Car Service) by the Committee representing employes covered by these Regulations.

7- B -1. If the charge against the employe is not sustained, it will be stricken from the record. If, by reason of such unsustained charge, the employe has been removed from the position held, reinstatement will be made and payment allowed for the difference between the amount earned while out of service, or while otherwise employed, and the amount he would have earned on the basis of his assigned working hours actually lost during the period."

This agreement and the provisions with respect to grievances were made pursuant to section 2 of the Railway Labor Act, 44 Stat. 577 (1926), 45 U.S.C.A. § 152 (1954).

On June 18, 1953 Ellis wrote to the defendant company and requested that an investigation and trial be accorded Jorgensen as required by the union contract. On June 22 Jorgensen's attorney wrote to the defendant and repudiated Jorgensen's resignation and requested that he be reinstated.

Pursuant to the request made by Ellis, an investigation was held on June 29, 1953 in accordance with Rule 6- A -1. Jorgensen, his attorney and Ellis attended. They were informed by John J. Reilly, who conducted the proceedings, of the charge made by Ulich, and told that the investigation was being held to permit Jorgensen to make an explanation. After some discussion, Jorgensen declined the offer to make an explanation and instead made a short statement of denial. At the conclusion of the hearing it was agreed that a trial would be held on July 3.

On the same day, after the investigation had been concluded, the company sent a registered letter to the plaintiff which confirmed the trial date and set forth the following charge which was to be tried:

"On June 16, 1953, when your personal bag was inspected just prior to your detraining from dining car 7943, train No. 112 at Pennsylvania Station, New York, N.Y., it was found to contain a quantity of ham (company property) wrapped in a company napkin."

On July 3 and 8 a trial was conducted pursuant to Rule 6- A -1. Reilly was the presiding officer and Jorgensen was represented by his attorney and the union chairman, Ellis. The various witnesses were also present and the testimony was taken stenographically.

At the outset of this hearing, Reilly read the letter of June 29, containing the charge against Jorgensen, into the record and Jorgensen admitted that he had received it. The trial was not completed on July 3, however, and on July 6 another letter was sent to Jorgensen informing him that it would be continued on July 8. This letter also recited the charge for which he was being tried. At the adjourned date, this letter was also read into the record and Jorgensen admitted he had received it.

At the company trial Ulich gave his account of the incident of June 16, which was corroborated by Olcott and Canino as stated above. Jorgensen, in turn, gave his version and the three members of the dining car crew corroborated his account of the events as mentioned above.

The testimony given at the trial below was substantially the same as that given at the company hearing.

On July 22 the following notice was sent to the plaintiff:

"The Pennsylvania Railroad

Notice of Discipline for Offense Occurring

on Dining Car Department

Long Island City, N.Y., July 22, 1953

Name -- Carl Jorgensen. Occupation -- Steward.

Home Division -- New York Region.

Discipline -- Dismissal from the service of the Pennsylvania Railroad Company.

Date of Occurrence -- June 16, 1953.

Place -- New York.

Outline of Offense: --

'On June 16, 1953, when your personal bag was inspected just prior to your detraining from dining car 7943, train No. 112 at Pennsylvania Station, New York, N.Y., it was found to contain a quantity of ham (company property) wrapped in a company napkin.'

E. H. Fausnaugh,

Supervisor ...


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