
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. HIXON.
    (Supreme Court of Texas.
    May 10, 1911.)
    Master and Servant (§ 32) — Blacklisting Statute — Letters—Right of Action.
    A railroad discharged a brakeman, because he refused to proceed upon a-train which he thought was not properly equipped. Under the blacklisting statute (Acts 30th Leg. c. 67, § 1, par. 3), providing that any person discharged by any corporation may demand in writing a true, written statement of the cause of his dis-ehargej the brakeman received one basing it on grounds of insubordination. He sued for damages, claiming that the statement should have included 'the circiimstahces surrounding his refusal to proceed upon the train, but failed to allege that the statement was published’, o-ther than' by addressing it to himself, or that the matters stated were known to be untrue, or written to intentionally injure him. Held, that there could be no recovery, as the railroad company was compelled to give this statement, and the brakeman had disobeyed orders, and the railroad company was not compelled to give a complete history of the case, even though others might feel that the brakeman was justified in 'disobeying the orders.
    [Ed.. Note. — For other cases, see Master and Servant, Cent. Dig. § 38; Dec. Dig. § 32.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by S. J. Hixon against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, where that judgment was affirmed (126 S. W. 338), and the defendant brought error.
    Reversed.
    E. B. Perkins and Templeton, Crosby & Dinsmore, for plaintiff in error. E.' Q. Evans and Evans & Mitchell, for defendant in error.
    
      
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       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

This suit was instituted by Hixon against the railway company in the district court of Hunt county to recover damages under this state of facts: On the 24th day' of June, 1907, Hixon was in the employ of the plaintiff in error as a brakeman, and on that day was engaged in operating a freight train on the line of this road between Sherman and Commerce. On the way and near to the station of Tom Bean, the apparatus for applying the air brakes to the ears in some way got out of order, so that the air could not be applied. The hand brakes on the cars were old and defective, so as to be unsafe for use. Hixon, and another brakeman refused to proceed with the train, until the air brakes were adjusted. The condition of affairs being reported to the officers of the company, the conductor and engineer were ordered to proceed with the train, when Hixon and the other brakeman declined to go, and were left at Tom Bean. Hixon was afterwards discharged from the service of the company. The condition of the cars made it dangerous to the lives of those operating the train to move the same without air brakes, or the hand brakes being placed in better condition.

Under the provisions of the act of the 30th Legislature on the subject of “Black listing,” approved April 5, 1907, p. 142, to take effect 90 days after adjournment of the Legislature,. Hixon' made demand in writing upon-the company for a statement of the cause of his discharge, and received in reply the following: “July 15th, 1907. This is to certify that S. J. Hixon has been employed in the capacity of brakeman at Commerce, Texas, on the St Louis Southwestern Railway Company of Texas from February 9, 1907, to June 24, 1907. Discharged on account of insubordination.” This was signed by J. W. Maxwell, general superintendent.

In his petition the plaintiff claimed that he was not acting in insubordination, because the conditions were such as to justify his refusal to proceed with the cars, and therefore that the statement of the cause of his discharge was false, and that the railroad company failed to give him a statement of the true cause of his discharge, in that it did not state the circumstances under which he refused to proceed in his labor. This suit was brought for the recovery of damages on account of the failure to furnish him (the plaintiff) with a true statement of the cause of his discharge, and alleges the following grounds of recovery: (1) That in securing employment in the railway service he was required to produce his service letter, and that the production of the same, as furnished to him by the defendant, has been and will be the cause of his failure to secure employment in the future from railroads. (2) That since the receipt of the said statement he had begun service with a number of railroads, but as soon as the railroad company would hear from the St. Louis Southwestern Railway Company of Texas he would be discharged on account of the statement received from that company that he had been discharged for insubordination. (3) That with that letter as his service letter, and the charges standing on the books of the railroad company against him, as being discharged for insubordination, he will never be able to secure work on any railroad hereafter. (4) That the charge of insubordination greatly humiliates him and causes him mental suffering.

It is also alleged that if Hixon had continued in the service he could and would have received promotion, and would have been able to receive an appointment to the position of conductor, and would probably have been able to join the Order of Conductors, by which he would have been able, upon entering the service of a new road, to enter as a conductor, instead of beginning as brakeman.

There was a trial before a, jury, which resulted in a judgment in favor of Hixon for $2,500, which judgment on appeal was affirmed by the Court of Civil Appeals for the Fifth district.

In its application for writ of error, as in its brief in the Court of Civil Appeals, the plaintiff in error relies on three substantial grounds for relief, which, while presented in many forms, may be thus briefly stated:

(1) That the act under which the suit is brought is unconstitutional, in that it contravenes section 8 of the Bill of Rights of this state, to the effect, in substance, that every person shall be at liberty to speak, write, or publish his own opinion on any subject, being responsible for the breach of such privilege, and that no law shall ever be passed curtailing the liberty of speech or the press; that such act is violative of section 19 of the Bill of Rights of Texas, which guarantees the citizen against being deprived of liberty, property, privileges, or immunities, escept by due process of law, as well as tbe fourteenth amendment to our federal Constitution.

(2) That since defendant in error was discharged before the act in question went into, effect that, as to the claim here asserted, such law is retroactive and can have no effect.

(3) That the Court of Civil Appeals erred in holding that the service letter, showing that appellant was discharged for insubordination, did not truthfully state the cause of his discharge, and for this reason imputing liability to it.-

The question as to the constitutionality of the particular section involved in this suit is important and far-reaching, but, as the case will be disposed of on other grounds, it becomes unnecessary, and would probably be unwise, to undertake either a discussion or decision of the constitutional question raised in the case. As to the second question presented, we are not wholly agreed, and we therefore pretermit any discussion of that issue.

We are, however, all of the opinion that, under the facts of this case, under the allegations of the petition, no liability is shown, even if it should be held that the section‘of the act relied on is valid and has application to this case, and that judgment, on the facts adduced, should have been rendered for plaintiff in error. The petition does not allege or claim that the service letter in question was published or circulated otherwise or further than by addressing and sending same to Hixon. The petition does not allege that the matters stated in the letter were known at the time to be untrue or corruptly or intentionally written to injure. There is no suggestion or allegation in the petition questioning the good faith or honest belief of the railway company that Hixon had been guilty of insubordination. It is not disputed in the evidence that Hixon refused to obey the orders of his superiors. He says “refusing to obey orders is insubordination.” He further says, “I refused to handle that time. I was directed to handle it by men of authority, and I refused.” In justice to his position, it should be further said that he testified that he refused, not because he did not want to work, or' did not want to obey the orders, but refused because he did not think it was safe to obey them according to the rule which said, “Take no risk when in doubt.”

Paragraph 3 of section 1 of the act on which the suit-was brought is as follows: “(3) Where any corporation or receiver of same, doing business in this state, • or any agent or employé of such corporation or receiver, shall have discharged an employé, and- such discharged employé demands a statement in writing, of the cause of his discharge, and such corporation, receiver, agent or employé thereof fails to furnish a true statement of. same to such employé within ten days after such demand; provided, that such demand by the employé for said statement shall be made in writing.”

By the term “a true statement” of the cause of his discharge is meant the employer shall give, fairly, honestly, and in good faith the ground or cause for the discharge. In other words, that the statement shall evidence correctly and truly the cause upon which the master acted. It was meant that he should not be permitted to discharge for one reason, and, when called on to give a statement thereof, assign a different reason. It would indeed be a strange rule to place upon the employer the burden of giving, on demand, a statement leading to the discharge of his employé, under a heavy penalty for refusal so to do, and, when the true reason had been assigned inducing such discharge, to hold the employer liable in heavy damages, because his understanding of what constituted insubordination was incorrect, or because a court might conclude that a refusal to obey an order was not, because of the labor required not being safe in the particular instance, an act of insubordination.

It seems from the testimony of Hixon that his objection to the service letter furnished him consisted largely in the fact that same did not state in detail the facts out of which the charge or claim of insubordination arose. We think this was not, under the law, required to be done. If he had been discharged for drunkenness, would it be required that it should be stated where and from whom he secured the liquor, and how much he had drunk? If his discharge had been predicated upon inefficiency or unskill-fulness, would it be required that the letter should state the work that he had attempted, the tasks imposed, and the details wherein he failed to measure up to the required standard? If his discharge were absence from his post of duty, did the law impose on the company the burden of writing out every fact relating to such absence? And so, if the discharge was, as in this case, for insubordination, where is the law which requires that the company shall do more than state the fact? It is not required to write history. Besides, if this should be held, there was no demand, at any time, for any further statement of the facts which, it was claimed, constituted the insubordination, and no opportunity was given the company to comply with what now seems to be the ground of the complaint. If the company is required to write the facts in detail, shall its failure to include every such detail, whether by'inadvertence or otherwise, subject it to damages? Or shall it be held that it is liable, if it errs in its construction of the effect of its employe’s conduct? In other words, shall a difference in the definition of a word give, under this statute, a cause of action?

I It is not a case where one falsely publishes of another a charge which is untrue or injurious. The statement was made to the employé alone, and thus made, under penalty for refusal, in response to' a written demand. In such case, where there is no claim of willful had faith, or fraudulent and eovinous purpose to deliberately state an untrue reason for the discharge, but where the reason given was, from the standpoint of the railway company, wholly true, we cannot consent to a judgment against such employer, acting in good faith.

Prom what has been said, it results that the judgment of the district court and of the Court of Civil Appeals should be reversed, and judgment here rendered for plaintiff in error, and it is so ordered.  