No. 12271 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1973

MAYME 0

## 'CONNELL HANNIFIN, Plaintiff and Respondent,

RETAIL CLERKS INTERNATIONAL ASSOCIATION and VERN RHINEHART, Defendants and Appellants.

Appeal from: District Court of the Second Judicial District, Honorable John B. McClernan, Judge presiding. Counsel of Record : For Appellant: Thomas Joyce, Butte, Montana. Benjamin Hilley argued, Great Falls, Montana. Patrick Paul, Great Falls, Montana. For Respondent: Henningsen and Purcell, Butte, Montana. James Purcell argued, Butte, Montana. Donald C

# . Robinson argued, Butte, Montana.

Filed

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## \973 Submitted: March 29, 1973 Decided :

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### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This 

### is an appeal from a jury verdict rendered in the district court of SilverBow County against defendant Retail Clerks International Association, The actionwas brought by Mayme ~'~onnell Hannifin alleging among other things, that the Retail Clerks International Associati.on had induced Retail Clerks Union Local No, 

### 4 tobreach itsemployment contractwith her, Before reaching the major issuewe dispose of two preliminary matters. First isdefendant's (appellant herein) challenge to this Court's and the district court's jurisdiction. This challenge isbased

on defendant's view that this isa "labor law1'case and as such is governed by federal law. In a recent decision, Motor Coach Employees

v. Lockridge, 

### 403 

### U.S. 274, 91 S.Ct, 1909, 29 L ed 2d 473, the United States Supreme Court reaffirmed the preemption by the United States of the complete law of labor relations. While this is true, under

our view of the facts and law inthis caseno labor law issue 

### is presented which need be resolved by federal labor law. 

### The facts in Motor Coach Employees show interferencewith a collectivebargaining agreement, Nothing even similar is found inthis case, aswill hereinafter appear, Second isplaintiff's (respondent herein) motion todismiss the appeal. This motion was based on defendant's alleged failure to filethe record within the time limit set out inMontana Appellate Rules of Civil Procedure, The notice of appealwas filed on December 20, 1971. Shortly thereafter defendant ordered a transcript of the proceedings from the officialcourt reporter. When it became apparent that the transcript would not be readywithin the forty days provided inRule IO(a), M.R.App.Civ.P,, defendant moved the district court under Rule lo@)fora ninety day extension of time for the filing of the record, Either through errorby the defendant or the district court, the order granting the motion gave defendant untilApril 28, 1972, to filethe record. Under the rule an extension should be grantedfrom the date of the filing of the notice of appeal, In this case the extension should have been granted untilMarch 19, 1-972. On April 28, 1972, defendant filed an orderwith this Court asking for a thirty day extension, which was granted. On that same day, unknown to defendant, the record was filed, It ison the basis of this late filing that plaintiff claims the appeal should be dismissed, It appears from defendant's brief on appeal that the difficulty

was 

### a lack of communication between counsel for defendant and the court reporter, which resulted in the-delay. Under Rule 10(c), 

### M,R. App,Civ.P., this Court has wide discretion in permitting the filing of a record. The pertinent portion of that rulereads: "If the district court 

### iswithout authority to grant the relief sought orhas denied a request therefor, the supreme court may on motion extend the time for transmitting the record ormay permit the record tobe trznsmitted and filed after the expiration of the time allowed or fixed." Montana's rule isidentical tothe federal rule and for that

reason the following federal authority ispersuasive, In King v. Laborers Internat. U, of No. America, U,L. No. 818, 

### 443 F.2d 273, 276 (6th Cir. 1971), the court held where the record had been filed within the fortydays allowed and the appellant's brief had not been timely filed

### : "The rules cited by Appellee are stated in permissive, rather than mandatory language, We are not required todismiss every appeal which does not meet each of the time limitations in the abovestatedrules.t1 As statedheretofore, this Court has discretion in this type of case, and where, ashere, serious issues arepresented for review

we 

### wj.11 not dismiss the appeal. The actionwas brought originally against the local union for breach of contract. After discoveryproceedings, the complajmt was amended to include the retail Clerks InternationalAssociation, 

### alleging that that Association had unlawfully induced thebreach of plaintiff's employment contract, At the close of plaintiff's case,the Local Union, one of defendants, moved for a directed verdict

on allfour counts of the complaint; count one being concerned with whether the contract of employment had been breached, The Local's motion, as to count one, was made on the ground the evidence did not show that plaintiff had been discharged, Inresponse to the motion, counsel for plaintiff said: "IJith reference to this, let the record show that the Plzintiff 

### willsubmit, as tothe Retail Clerks Union Number 4, that they

### will submit theirmotion 

### iswell taken as to counts one, two, three and four of the complaint and I would ask on behalf of my client that the compl-aintbe dismissed as to the Local Union. 11 The complaint 

### was disrnj-ssedas to the Local Union. Plaintiff, Mayme Hannifin, served asbusiness agentsecretary-treasurer of Local

### Eb,4&cm July 1954when shewas appointed to fillan unexpired term, untilher alleged discharge in 1969. Her term of officewould have expired in December 1970, The incidents leading to the controversy took.place in September and earlyOctober, 1969. On September 

### 22, 1969, Vern Rhinehart went to Butte inhis capacity as a representative of the International Association. An executive board meeting was called for the night of September 22, There 

### isdispute in the testimony as towhether it wasat~hinehart's urging that thismeeting was called. Present atthe meetingwere Bernard McGarry, president of the Local; Jerry Kal-archik, vice-president; William C. Smyers, recording secretary; Patsy Thomas, office secretary and clerk for the Local; and Mr-Rhinehart. 

### Mrs. Hannifin didnot attend the meeting and there is controversy in the testimony as towhether she

### was notified of the meeting. 

### Mr. Smyers, testifying 

### as an adverse witness for plaintiff, stated:

If* Jc

# * that the reason the meeting was calledwas that Vern mnehartjwas intown tofind out ifhe could straighten out the contract thatwas due in Dillon Jc

# **." The discussion then turned tothe difficulties the Local

was having with Mrs. Hannifin. Again 

### Mr. Smyers testified:"9: 

# ** and alsohe mentioned about Mayme missing the meeting in Great Falls and then we started discussing her frequent absences from work.

## '" This discussion apparently resulted 

### in the officers asking for 

### Mr. ~hinehart's advice, He gave the Local three alternatives: (1) they could ask the Internation toput the Local under a trusteeship, 

### (2) charges could be brought against 

### Mrs, Hannifin and after trial she could be remaved from office, or 

### (3) the Local could do nothing. The board members then asked Mr. Rhinehart to leave the meeting so they could discuss the matter, The board, with the exception of McGarry, voted toask the International for a trusteeship. This would have meant, if approved by International, allthe officers of the Local would have been removed and someone appointed by International would take charge of the management of the Local. The trusteeshipwas not approved by International. Allmembers of the board voted for the trusteeship, except 

### Mr, McGarry, and they signed a letter to that effect addressed to lnternati.onaltspresident. On the following day another member 

### of the board, not present thatnight, signed the letter and it was mailed, On September 24, 

### Mrs, ~annifin's 

### sister, Mrs, Jewel1McLeod, took some dues slips to the union office for 

### Mrs. Hannifin. 

### Mrs. ~c~ead's testimony was that Patsy Thomas told her at that time that visit 

### Mrs. Hannifin's job 'bas gone". During this/patsy Thomas gave Mrs. McLeod the union check book so that her sistercould sign some checks. had 

### Mrs. Hannifin testified that she/this telephone conversation with Patsy Thomas that same day: "I called Patsy on the morning; the morning of the 24th and I said, 'patsy areyou mad atme? 

## , She said, no, but 

### I believe everybody else 

### is, I said, 

### 'I

### will I be up in a littlewhile. She said, 'you don't have to come up. Your job 

### isallthrough, Vem Rhinehart was here Monday night and we had a meeting of the exeeutive board and you are allfinished. I pleaded with them and everythi.ng. He said there was nothing you could do, He was turning the Union into a trusteeship. There was nothing that could be done about it atall,

## "' After this conversation Mrs. Hannifin made no attempt to contact any of the officers of the Local to either substantiateorconfirmwhat she had been told by Patsy Thomas. As a matter of fact, 

### Mrs. Hannifin filed forunemployment insurancebenefits on September 29, the same day she visited the union office torequest her lastweek's paycheck and vacation pay due her. She testified that 

### Mr. Thomas Evankovich was present inthe office that morning and she thought he had been sent inby International torun the Loca

### 1.The trialcentered around the issue of whether, by the actions of Rhinehart, the Local was induced tobreach 

### its contract with Mrs. Hannifin, Plaintiff's theory was that by the action of Rhinehart the Local requested the trusteeship and Mrs, Hannifin was rem~ved from office. The controlling issue iswhether the district court erred indenying defendant's motion for a directed verdict at the end of plaintiff's case inchief, Motions fordirected verdicts areprovided forby Rule 50, M.R,Civ.P. InMueller v. Svejkovsky, 153Mont, 416, 420, 458 P.2d 265, this Court established threeruleswhich apply on an appeal from a motion denying a directed verdict: "On an appeal from a motion denying a directed verdict there arethree rules which apply. (1) The evidence introduced by the plafntiff willbe considered in the light most favorable tohim, (2) The conclusion sought tobe drawn from the factsmust follow as 

### a matter of law, (3) Only the evidence of the plaintiff 

### willbe considered, Pickett v, Kyger, 151Mont, 87, 439 P,2d 57," In light of these rules, this Court cannot reach the conclusion the evidence produced would permit a jury to find that Internationalhad induced the Local todischarge Mrs, Hannifin. It is impossible to find anything in the record which would lead to the conclusion Mrs. Hannifin was discharged atall. 

### Ashas been previously stated, the request for trusteeshipwas denied by International. The only testimony concerning Mrs. Hannifin's discharge

came from plaintiff herself, By her omtestimony she indicates her "belief" that the alleged discharge occurred atthe executive board meeting on September 22. Her testimony was: 

### "Q. Ffia fired you, Mayme? A, Well, I would say that Vern Rhinehart through the executive board,"Q. Well, why do you say that? A. Because when I talked to Patsy that morning she told me Vern Rhinehart had advised the executive board that theywere going into

### a trusteeship and 

### I was allthrough, There was absolutely nothing I could do about it. "Q, Did Rhinehart himself tellyou you were fired? A. No. "Q. Did any member of the executive board tellyou you were fired? A. No, hut Patsy Thomas did. "Q. Is she on the executive board? A, No, she isnot. "Q. What 

### isher statuswith the Union? A. 1'd say she 

### is 

### a clerk of the Union. "Q, Did you hireher or did they--A. I hired her, 

### "Q. Did she hold office atyour pleasure while you were there. A. 

### Yes, she did, "Q, You could have firedher ifyou didn

## 't think. shewas doing 

### a good job, right? A. Yes, "Q. She had no authority to fireyou? A. No, she didn't, but the executive board as such could have, "Qq, How 

### is that? How could the executiveboard fireyou? A. Because she told me they had taken a procedure, they had gone into a trusteeship so ifyou go intoa trusteeship you are fired, "Q. Did she actuallygo 

### in on---A. I didn't know this. Q. Did you inquire? A, No, I didn't because she said 

### itsjust all sealed, signed and delivered. She said you are firedthat's it. There isjust nothing that can be done, 

### "Q, What authority did she have to---A. As 

### a friend of mine I think she told me that. "Q, So you really don't know whether it did go into a trusteeship ornot? A. No, I didn't know,

11

Q. Who 

### isthe chief executive officer of the Local Union? A, 

### I was the chief executive officer of the Local Union. "Q. You were the boss? A. And I was theboss, "Q. And you were familiar with constitution generally 

### I suppose? A, Yes, I was, II The Colorado Court of Appeals in Colorado CivilRights Com'n v, StateSchool Dist, No, 1, (Col,kpp.l971), 488 P.2d 83, 

### 86, established a test to determine whether 

### a person has been discharged: 

### he fact of discharge does not depend upon the use of formal words of firing. The test iswhether sufficient words or actions by the employer 'would logically lead a prudent person tobelieve his tenure had been terminated, I'We believe this tobe a proper test and we adopt it for use in this case, It must be painted out that Mrs.Hannifin was not an employee who couldbe discharged atthe

### willof her employer. She was an elected officialof the union, chosen forher position by the entiremembership of theLocal, The Local had established procedures for the removal of j.ts elective officers. Article V, Section 

### 11, of 

### its constitution reads: 

### "All the officers shall serve for the period of their election unless removed for incompetency, neglect of duty, or dishonesty, inaccordance with the Constitution of the InternationalAssociation.II The International constitution provides procedure for the removal of local union officers, The evidence presented by plaintiff can best be summed up inthe statement made by Mrs, Hannifin

on cross-examination. She responded to the question:

IIJust what information do you have that the Znternational firedyou?" with "Just what Patsy gave me and what I heard around tomand allkinds of things that were said." This 

### ishardly the type of information which would lead

a prudent person tobelieve that shehad been discharged. There 

### isnothing in the record to show that 

### Mrs. Hannifin ever talked to anybody inauthority in the Local toconfirmher discharge, Her only source of information was the office secretary, It has long been held that an agent of an employer cannot discharge another employee, unless he has the authority to da so. Amann v, Pantages, 90 Wash, 271, 155 P. 1070, No testimony was presented which would indicate Patsy Thomas was empowered to speak for the Local. To the contrary, Mrs. Hannifin was her supervisor, Earlier inthis opinion we painted out that the complaint

was dismissed as to the Local Union on the specific count that referred tothe alleged discharge orbreach of contract; and that counsel for plaintiff agreed themotion for directed verdict was 

### well taken. Clearly that was correct; and, just asclearly, if therewas no breach of contract by the Local Union, the International Union could not have induced a breach that did not occur.Therefore, we hold as

### a matter of law that therewas no factual dispute over which reasonable men could dispute and the district court erred indenying defendant's motion for a directed verdict. Other issues raised 

### on this appealneed not be discussed inview of the resultreached, The judgment of the district court 

### isreversed and the action dismissed.

We Concur:

An.Jack Shanstrorn, District
' Judge, sitting 

### for

### MK~ Chief Justice James 

### T. Harrison.Mr. Justice Gene B. Daly dissenting:



### I respectfully dissent to the view of the majority. The majority opinion contradicts one of our longest standing and most frequently repeated principles of appellate jurisprudence, In the recent case of Resner v. Northern Pacific Railway, Mont

# . 505 P.2d 86, 89, 30 %.Rep. 55,60, this Court quoted from Lavender v. Kurn, 327 

### U.S. 645, 66 S.Ct. 740, 90 L Ed

111Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation or conjecture 

### is required on the part of those whose duty it isto settle the disputeby choosingwhat seems to them tobe themost reasonable inference. Only when there 

### is

### a complete absence of probative facts to support the conclusion reached does a reversible error appear, But where

# * f:

# * there isan evidentiarybasis for thejury's verdict, thejury is free todiscard or disbelievewhatever facts are inconsistentwith itsconclusion, And the appellate court's function 

### is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion 

### ismore reasonable.

# ' " See also: Kirby v. Kelly, Mont

# . 504 P.2d 683, 29 St.Rep. 1090; Davis v. Davis, 159Mont. 355, 497 P.2d 315, 

### 29 St,Rep, 65; Wallace v. Wallace, 85 Mont. 492, 279 P. 374; 66

This principle of law circumscribing our right toreview the evidence isbased on the sound premise that the trialcourt and jury have an obvious advantage over the appellate court in making determinations of fact. They hear and observe the attitude and demeanor of thewitnesses firsthand, whereas this Court has only th.e written record, An exami.nation of that written record reveals defendant has relied exclusively on the facts (1) theperson informing Mrs. Hannifin thatherjob was lostwas subordinate toher inrank, and (2) Mrs. Hannifin chose topursue her remedy in the district court rather than through internal union verification and appeal channels.Defendant made littleorno attempt to establish several other aspects of itscase as fact, including (1) that Patsy Thomas had spoken mistakenly, imdependently or inexcess of her conferred authority, (2) that Mrs. Hannifin had or should have had reason todisbelieve or doubt the word of Patsy Thomas, 

### (3) that Mrs. Hannifin did not, in fact, believe that Patsy Thomas was relaying true information from those inauthority toeffecther dismj-ssal, 

### (4) that Mrs, Hannifin did voluntarily and with fullknowledge of her actions, resign her employment, 

### (5) that 

### Mrs. Hannifin expressly or impliedly waived the protections shewas accorded under her employment contract and the constitutions of Butte Local No. 

### 4 and the Retail Clerks International Association, or 

### (6) that defendant or anyone connected with it, made any attempt to correct the claimed they misapprehension

## 1- ~eated 

# - in the mind of Mrs. Hannifin that her job had been terminated. The jury supplied the answers to these questions of fact based on the evidence presented attrial, It isnot the prerogative of this Court to supply 

### its own
answers. There was some testimony indicating that Mrs. ~annifin's job performance was poor and created adequate grounds for dismissal. Perhaps then, it could be rationalized that inthis

case the end result 

### wasjust and equitable, Even if thiswere true, I do not believe the end justifies the means. And indeed, the means employed to circumvent 

### Mrs. ~annifin'srights under her employment contract and the union constitutions arewithin the purview of constructive fraud, if intentional, or actionable negligence, if inadvertent, The finding of fact, asmade by thejury, was based on substantial, credible and in some aspects uncontradicted evidence. There appears no indication of passion or prejudice on the part of the trialcourt orjury, The verdict and judgment did no marethan compensate 

### Mrs. Hannifin for thewages the Local Union

was contractually obligated topay her over the remainder of her elected term of employment. I would affirm thejudgment