Starr v. Brotherhood's Relief & Compensation Fund , 268 Or. 66 ( 1974 )

HOLMAN, J.

This is an action by a railroad employee for benefits claimed to be due to him as a member of defendant relief and compensation fund after he had been held out of service by his railroad employer. The case was tried before the court, without a jury. Defendant appeals from a judgment awarding plaintiff benefits totaling $4,320. Plaintiff cross-appeals from the denial of his claim for attorney fees.

Defendant’s sole assignment of error is that the trial court erred in denying defendant’s motion for a directed verdict on the ground that the evidence conclusively established that (1) plaintiff had refused to perform services for his employer, and (2) defendant’s membership agreement prohibited payment of any benefits where an employee was held out of service as the result of such a refusal.

The judgment of the trial court was based upon findings to the effect that the term “held out of service” is defined in defendant’s membership agreement to include all cases in which a railroad employee has been held out of service by his employer except cases “of any willful or intentional violation or infraction of any order * * * rule * * * or regulation * * * of his employer,” and that although plaintiff refused to perform services for his employer, he did so “in good faith,” and did not do so “willfully.”

Because this is an action at law we must affirm the trial court if its findings are based upon any substantial evidence. In reviewing the evidence we must also bear in mind that in such a case plaintiff is entitled to have the evidence viewed in the light most favorable to him, including all reasonable inferences from the evidence and with all conflicts in the testimony' resolved in his favor. Archer v. Rogers Construction, 252 Or 165, 169, 447 P2d 380 (1968).

Plaintiff was employed by the Union Pacific Railroad as a freight conductor. As such he was responsible for the safe operation of the train and for all employees on it. For that purpose he was required to know and to obey all the general Safety Instructions and all Operating Rules of the railroad, as well as all Bulletin Orders, among other things. The railroad division superintendent, Mr. Hardin, had authority to issue and to cancel such Bulletin Orders.

In late September 1971, Mr. Hardin received the following letter from a local union:

CÍ# # s& # #

“The Officers and Members of Local 1304 protest the locating mechanical refers [sic] and traders in the consist of a train next to or near cabooses in which potent toxic fumes from these type cars will endanger the health and or safety of train crews.

“This local would appreciate your cooperation in this matter by issuing instructions to all concerned that such cars or trailers emitting potent toxic fumes be cut in a sufficient distance ahead of cabooses to prevent such fumes from entering cabooses.

As a result, Bulletin Order No. A-47 was issued on October 5,1971. It provided that:

“Perishable loads in mechanical refrigerator cars and traders must be entrained not less than 5 cars ahead of caboose, number of ears permitting.”

This order, and the circumstances under which it was canceled one week later, on October 12, 1971, gave rise to the controversy which resulted in this case.

On that day plaintiff was instructed to take a freight train from The Dalles to Hinkle, a distance of some 100 miles. When the train came into The Dalles from Portland plaintiff noticed that a string of five refrigerator cars was separated from the.caboose by only three other cars. He then called the yardmaster “to make the necessary switch” in order to comply with the Bulletin Order.

Plaintiff was then notified that Mr. Hardin wanted to talk to him by telephone. In the course of the conversation which followed Mr. Hardin told Mr. Starr that he had canceled Bulletin Order A-47 earlier that day and that no switching was required. Mr. Starr told Mr. Hardin that he was concerned about the hazard of the fumes from the diesel units on the refrigerator cars and his own health and safety. Mr. Hardin told Mr. Starr to take the train out, which Mr. Starr said he would do if the cars were switched so as to comply with order A-47, but not otherwise. Mr. Hardin then took Mr. Starr out of service and another conductor was instructed to take the train out.

Mr. Starr testified that on from 10 to 15 previous occasions he had suffered from nausea and headaches when riding in the caboose behind reefer cars with diesel refrigeration units “as near as 10 cars * * * depending on the number of them.” He also testified that if he became nauseous and got a headache he “didn’t feel [he could] remain alert and attentive and perform the duties that [he was] charged with performing.”

Plaintiff also testified that he had never before been given an oral order “to violate a written order” and that under the Operating Rules he was responsible for compliance with the written Bulletin Orders; that he did not “intend to be insubordinate,” but was “reluctant to take the train out until * * * the switching had been done that would remove the health and safety-question which was of first importance in [his] mind”; that he did not intend to delay the train; and that the switching could have been done in from 10 to 15 minutes.

Union Pacific’s Safety Instructions to employees include the following, of which Mr. Starr was aware:

“There is hazard of carbon monoxide fumes from exhaust of diesel or gasoline engines and precautions must be taken to avoid possibility of accident therefrom.

“Exhaust from such engines must not be located in close proximity of fresh air intake of passenger cars and care must be exercised at all times to see that there is sufficient ventilation where such engines are operated.” (No. 4115)

“Employes must take every precaution to prevent injury to themselves and other persons under conditions not provided for by the rules.

“Employes must not rely upon the carefulness of others, but must protect themselves when their own safety is affected.” (No. 4001)

“In case of doubt or uncertainty the safe course must be taken; in all cases, the safest available methods must be followed.” (No. 4000)

These general Safety Instructions were promulgated by the Vice President in Charge of Operations in 1954. The Safety Instructions are preceded by a certification containing the following:

“Special instructions may be issued by proper officer.”

Pursuant to the same subject, the railroader’s bible, the Consolidated Code of Operating Rules, under Rule 109, contains the following information:

“Superintendents’ bulletins or general orders containing information affecting the movement or safety of trains and engines will be issued and can-celled by the Superintendent and will be posted at locations designated in the timetable.

“* * * * (Emphasis ours.)

Thus, the superintendent had authority to supplement the general Safety Instructions as applied to particular circumstances with his own orders and to cancel such orders as he made when he deemed cancellation appropriate.

Following an investigation and hearing, Mr. Starr was discharged. He then made application to defendant for payment of “held out of service” benefits. Defendant denied his application upon the ground that it “does not come within the provisions, of our Constitution,” referring specifically to Article XII, (sec. 4), and Article XXXI, (sec. 1-a).

Article XII, (sec. 4), of defendant’s constitution provides:

“Members shall not be eligible for any benefits or compensation whatsoever for ‘held out of service,’ as hereinafter defmed where such claim is based in whole or part upon refusal to perform any duty or service for the employer, * * (Emphasis added.)

Article XXXT — Definitions— (sec. 1-a) provides:

“The term ‘Held out of Service’ as used in this Constitution, shall include all cases, where an employee * * * has been * * * relieved by his employer from the performance of his said usual duties as discipline for * * * offenses, not, however, because of any willful or intentional violation or infraction of any order * * * rule * * * or regulations, expressed or implied, of his employer * * (Emphasis added.)

After exhausting his remedies of appeal as provided by defendant’s constitution, plaintiff filed his complaint in this action. Defendant, by its answer, alleged as an affirmative defense that

“Plaintiff is not entitled to any benefits for being held out of service under defendant’s membership agreement and constitution, since his conduct constituted insubordination, a refusal to perform services, and a wilful violation of an order, all of which expressly preclude recovery of any benefits under defendant’s membership agreement and constitution.” (Emphasis added.)

Contrary to the contention of defendant, the trial judge read the two constitutional provisions together to the effect that because “held out of service” benefits were payable even in cases involving “discipline for offense” unless the offense involved a “willful or intentional violation” of an order, rule or regulation, it followed that a member who failed to perform a duty was eligible for “held out of service” benefits unless he “willfully or intentionally” violated some order, rule or regulation. We agree with such an interpretation. The document, in this respect, is a model of ambiguity, but we believe it was its intention to provide for benefits when the employer prevented a member from working as discipline for an infraction except in those cases where the infraction was “willful or intentional.”

A glance at Black’s Law Dictionary 1773-774 (4th ed 1951) and the cases cited thereunder shows that the word “willful,” when used in connection with criminal offenses involving moral turpitude, denotes bad intent. However, more often it describes an act as being one which is committed intentionally and knowingly, and distinguishes such an act from that which is committed negligently or heedlessly. It seems to us that the latter meaning is the only reasonable one that could be ascribed to the use of the language in the present case. First, it is used in the disjunctive together with the word “intentional.” It would make no sense to use “willful” in the sense of malice or bad intent when its use is accompanied by an alternative which requires that the covered employee’s refusal need only be intentional to disqualify him from benefits. One of the recognized meanings of the word “willful” is “intentional,” and when both words are used together, as in this instance, we believe that “intentional” is the only meaning which was intended to be given to the word “willful.”

In .addition, the particular context in which a word is used is usually the key to the meaning intended. In the present context, the word in question is being used to distinguish two different kinds of offenses against authority, the distinction being the basis for determining whether an employee who is being disciplined by being relieved of his employment should draw benefits. In such a context, it would be reasonable to distinguish those who intentionally violated an order or regulation from those who negligently or inadvertently did so. It would also be improbable that the determining factor was intended to be the motive for the infraction because such an issue would be entirely subjective and, therefore, difficult of definite ascertainment. 'It is our belief that the intention of the document in question was to pay benefits to those who were taken out of service as discipline for negligent or heedless infractions and not to pay benefits to those who intentionally disobeyed orders or regulations. It is perfectly logical to distinguish between the person who inadvertently goes to sleep on the job and one who intentionally takes a nap even though no moral turpitude was involved in either ease.

The use of the word “willful” in the present context denotes nothing more than the failure by plaintiff to obey an order which he knew the superintendent had the authority to give, and the plaintiff’s good intentions, high motives, and belief that the. superintendent was wrong in his analysis of the danger of the situation are entirely irrelevant. Even the employees in constituting their fund must have understood that you cannot run a railroad by giving every employee the choice of carrying out an order depending upon whether he believes the order is a good one or not and, therefore, they would not put a premium upon intentional disobeyal of orders, even for good motives.

Therefore, we must examine the testimony to determine whether there is any evidence, from which the trial court could find that plaintiff honestly believed the superintendent did not have the authority to give the order. There is no argument about whether plaintiff disobeyed an order. The railroad division superintendent directed him to take out the train without changing the position of the refrigerator cars in relation to the caboose, and plaintiff refused to do so. The only excuse he could have for not obeying the order which would bring him within the coverage of the policy is a belief that the superintendent did not have the authority to direct him to take out the train as it was presently made up.

It is contended that the general Safety Instructions were put out by an authority higher than that possessed by the superintendent and that they formed a basis for a rational belief by plaintiff that he did not have to obey the superintendent’s order because it was, in the opinion of plaintiff, in contravention of the Safety Instructions. We have a situation in which both the superintendent and the plaintiff looked at the same factual circumstances at the same time, one deciding that it was not dangerous to take out the train as it was presently constituted and the other deciding that it was dangerous. We do not conceive that anyone in such a situation could rationally believe the conductor’s evaluation was intended by the Safety Instructions and the Operating Rules to be paramount. When read together, the Safety Instructions and the Operating Rules clearly bestow upon the superintendent the authority to evaluate special situations in view of the Safety Instructions and to make orders for the operation of trains in such situations in accordance with his judgment. Could anyone really believe that a railroad could be operated in any other way?

The superintendent issued his original order only one week prior to the occurrence here under consideration. It was done as the result of an application from the union. In the absence of evidence that separation of refrigerator cars from the caboose had been required by the railroad in order to comply with its Safety Instructions during the 17-year period between their adoption and the superintendent’s order, it can only be concluded that previously it had not been contemplated that the general Safety Instructions required such removal; otherwise, the application for an order directing such removal and its issuance would have been unnecessary.

Plaintiff is forced to the position that if he had a good motive in refusing to obey the order, his disobeyal was not “willful or intentional.” His own testimony shows he was aware the superintendent had authority to issue and retract the order. Plaintiff testified :

“Q. Do you know who issued that bulletin you were relying on? That would be who ?

“A. E. B. Hardin.

“Q. Same man talking to you?

“A. Yes.

“Q. And did you know at the time you were talking to him he was the person that had issued and retracted such bulletin?

“A. Yes.

“Q. Would it be fair to say he was the only one that had that authority?

“A. Yes.

“Q. And you were aware of that at that time ?

“A. Yes.”

The trial court seemed to find some help in the fact that there was evidence from which it could be inferred that the superintendent made up his mind to revoke his prior order at the time he talked to plaintiff. Such inference is irrelevant to the issue at hand. If the superintendent had the authority to revoke the order, he had the authority to revoke it at the time he talked to plaintiff or at any other time.

The trial court also attached some importance to the fact that the superintendent’s revocation of the order was oral. Plaintiff points to no basis for believing the superintendent could not do so except that plaintiff had never before been given an oral order countermanding a written order. This is an insufficient basis, for a rational belief that the superintendent could not orally countermand a written order.

It is our conclusion that the evidence forms no basis for a finding that plaintiff did not “willfully or intentionally” fail to carry out an order of the superintendent and that the evidence requires a finding that he did so fail to carry out an order.

The judgment of the trial court is reversed.