No. 12271 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

MAYME 0 ' CONNELL HANNIF IN, 

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 :MRY 4 \973 

Submitted: March 29, 1973 

Decided : lJlm 4 ~$EI 

... .'? . i 

,j, j , ..: '.--" ...J) / lp 1 4, AG-7 )*-If 0,: " ..., . i ' Clerk 

'2 / 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a jury verdict rendered in the district 

court of Silver Bow County against defendant Retail Clerks International Association, The action was brought by Mayme ~'~onnell 

Hannifin alleging among other things, that the Retail Clerks International Associati.on had induced Retail Clerks Union Local No, 4 

to breach its employment contract with her, 

Before reaching the major issue we dispose of two preliminary 

matters. First is defendant's (appellant herein) challenge to this 

Court's and the district court's jurisdiction. This challenge is based 

on defendant's view that this is a "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 in this case no labor law issue is 

presented which need be resolved by federal labor law. The facts in 

Motor Coach Employees show interference with a collective bargaining 

agreement, Nothing even similar is found in this case, as will 

hereinafter appear, 

Second is plaintiff's (respondent herein) motion to dismiss 

the appeal. This motion was based on defendant's alleged failure to 

file the record within the time limit set out in Montana Appellate 

Rules of Civil Procedure, The notice of appeal was filed on December 

20, 1971. Shortly thereafter defendant ordered a transcript of the 

proceedings from the official court reporter. When it became apparent 

that the transcript would not be ready within the forty days provided 

in Rule IO(a), M.R.App.Civ.P,, defendant moved the district court under 

Rule lo@) for a ninety day extension of time for the filing of the 

record, Either through error by the defendant or the district court, 

the order granting the motion gave defendant until April 28, 1972, 

to file the record. Under the rule an extension should be granted 
from the date of the filing of the notice of appeal, In this case 

the extension should have been granted until March 19, 1-972. On 

April 28, 1972, defendant filed an order with this Court asking 

for a thirty day extension, which was granted. On that same day, 

unknown to defendant, the record was filed, It is on 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 rule reads: 

"If the district court is without authority to 

grant the relief sought or has denied a request 

therefor, the supreme court may on motion extend 

the time for transmitting the record or may permit 

the record to be trznsmitted and filed after the 

expiration of the time allowed or fixed." 

Montana's rule is identical to the federal rule and for that 

reason the following federal authority is persuasive, 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 forty days 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 to dismiss every appeal which does 

not meet each of the time limitations in the abovestated rules. t 1 

As stated heretofore, this Court has discretion in this type 

of case, and where, as here, serious issues are presented for review 

we wj.11 not dismiss the appeal. 

The action was brought originally against the local union for 

breach of contract. After discovery proceedings, the complajmt was 

amended to include the retail Clerks International Association, alleging that that Association had unlawfully induced the breach of 

plaintiff's employment contract, At the close of plaintiff's case, 
the Local Union, one of defendants, moved for a directed verdict 

on all four 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, In response 

to the motion, counsel for plaintiff said: 

"IJith reference to this, let the record show that 

the Plzintiff will submit, as to the Retail Clerks 

Union Number 4, that they will submit their motion 

is well taken as to counts one, two, three and four 

of the complaint and I would ask on behalf of my 

client that the compl-aint be dismissed as to the 

Local Union. 11 

The complaint was disrnj-ssed as to the Local Union. 

Plaintiff, Mayme Hannifin, served as business agentsecretary-treasurer of Local Eb,4 &cm July 1954 when she was appointed to fill an unexpired term, until her alleged discharge 

in 1969. Her term of office would have expired in December 1970, 

The incidents leading to the controversy took. place in September 

and early October, 1969. On September 22, 1969, Vern Rhinehart 

went to Butte in his capacity as a representative of the International Association. An executive board meeting was called for 

the night of September 22, There is dispute in the testimony as 

to whether it wasat~hinehart's urging that this meeting was 

called. Present at the meeting were 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 did not attend the 

meeting and there is controversy in the testimony as to whether 

she was notified of the meeting. Mr. Smyers, testifying as an 

adverse witness for plaintiff, stated: 

If* Jc * that the reason the meeting was called was 

that Vern mnehartj was in town to find out if he 

could straighten out the contract that was due in 

Dillon Jc * *." 

The discussion then turned to the difficulties the Local 

was having with Mrs. Hannifin. Again Mr. Smyers testified: 
"9: * * and also he 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 to put 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 to ask 

the International for a trusteeship. This would have meant, if 

approved by International, all the officers of the Local would have 

been removed and someone appointed by International would take 

charge of the management of the Local. The trusteeship was not 

approved by International. All members of the board voted for the 

trusteeship, except Mr, McGarry, and they signed a letter to that 

effect addressed to lnternati.onalts president. On the following 

day another member of the board, not present that night, signed the 

letter and it was mailed, 

On September 24, Mrs, ~annifin's sister, Mrs, Jewel1 McLeod, 

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 sister could sign some checks. 

had 

Mrs. Hannif in 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 are you mad at me? , She said, 

no, but I believe everybody else is, I said, 'I will 

I be up in a little while. She said, 'you don't have 

to come up. Your job is all through, Vem Rhinehart 

was here Monday night and we had a meeting of the exeeutive board and you are all finished. 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 at all, "' 

After this conversation Mrs. Hannifin made no attempt to 

contact any of the officers of the Local to either substantiate 
or confirm what she had been told by Patsy Thomas. As a matter of 

fact, Mrs. Hannifin filed for unemployment insurance benefits on 

September 29, the same day she visited the union office to request 

her last week's paycheck and vacation pay due her. She testified 

that Mr. Thomas Evankovich was present in the office that morning 

and she thought he had been sent in by International to run the 

Loca 1. 

The trial centered around the issue of whether, by the actions 

of Rhinehart, the Local was induced to breach 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 is whether the district 

court erred in denying defendant's motion for a directed verdict 

at the end of plaintiff's case in chief, 

Motions for directed verdicts are provided for by Rule 50, 

M.R,Civ.P. In Mueller v. Svejkovsky, 153 Mont, 416, 420, 458 P.2d 

265, this Court established three rules which apply on an appeal 

from a motion denying a directed verdict: 

"On an appeal from a motion denying a directed 

verdict there are three rules which apply. (1) 

The evidence introduced by the plafntiff will be 

considered in the light most favorable to him, 

(2) The conclusion sought to be drawn from the 

facts must follow as a matter of law, (3) Only 

the evidence of the plaintiff will be considered, 

Pickett v, Kyger, 151 Mont, 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 International had induced the Local to discharge Mrs, Hannifin. It is 

impossible to find anything in the record which would lead to the 

conclusion Mrs. Hannifin was discharged at all. As has been 

previously stated, the request for trusteeship was denied by International. The only testimony concerning Mrs. Hannifin's discharge 

came from plaintiff herself, By her om testimony she indicates 

her "belief" that the alleged discharge occurred at the 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 they were going 

into a trusteeship and I was all through, There was 

absolutely nothing I could do about it. 

"Q, Did Rhinehart himself tell you you were fired? 

A. No. 

"Q. Did any member of the executive board tell you 

you were fired? A. No, hut Patsy Thomas did. 

"Q. Is she on the executive board? A, No, she is not. 

"Q. What is her status with the Union? A. 1'd say 

she is a clerk of the Union. 

"Q, Did you hire her or did they--A. I hired her, 

"Q. Did she hold office at your pleasure while you 

were there. A. Yes, she did, 

"Q, You could have fired her if you didn ' t think. 

she was doing a good job, right? A. Yes, 

"Q. She had no authority to fire you? A. No, she 

didn't, but the executive board as such could have, 

"Qq, How is that? How could the executive board fire you? 

A. Because she told me they had taken a procedure, they 

had gone into a trusteeship so if you go into a trusteeship you are fired, 

"Q. Did she actually go in on---A. I didn't know this. 

Q. Did you inquire? A, No, I didn't because she said 

its just all sealed, signed and delivered. She said you 

are fired that's it. There is just 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 or not? A. No, I didn't know, 

11 Q. Who is the 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 the boss, 

"Q. And you were familiar with constitution generally I 

suppose? A, Yes, I was, I I 

The Colorado Court of Appeals in Colorado Civil Rights Com'n 

v, State School 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 is whether 

sufficient words or actions by the employer 'would 

logically lead a prudent person to believe his 

tenure had been terminated, I' 
We believe this to be 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 could be discharged at the will of her employer. 

She was an elected official of the union, chosen for her position 

by the entire membership of the Local, 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, in accordance 

with the Constitution of the International Association. I I 

The International constitution provides procedure for the 

removal of local union officers, The evidence presented by plaintiff can best be summed up in the statement made by Mrs, Hannifin 

on cross-examination. She responded to the question: 

I I Just what information do you have that the Znternational fired you?" with 

"Just what Patsy gave me and what I heard around 

tom and all kinds of things that were said." 

This is hardly the type of information which would lead 

a prudent person to believe that she had been discharged. There 

is nothing in the record to show that Mrs. Hannifin ever talked 

to anybody in authority in the Local to confirm her 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 in this opinion we painted out that the complaint 

was dismissed as to the Local Union on the specific count that 

referred to the alleged discharge or breach of contract; and that 

counsel for plaintiff agreed the motion for directed verdict was 

well taken. Clearly that was correct; and, just as clearly, if 

there was 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 there was no 

factual dispute over which reasonable men could dispute and the 

district court erred in denying defendant's motion for a directed 

verdict. Other issues raised on this appeal need not be discussed 

in view of the result reached, 

The judgment of the district court is reversed 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 

11 1 Whenever 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 is to 

settle the dispute by choosing what seems to them 

to be the most 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 is an evidentiary basis for the jury's verdict, the jury is 

free to discard or disbelieve whatever facts are 

inconsistent with its conclusion, 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 is more reasonable. ' " 

See also: Kirby v. Kelly, Mon t . 504 P. 2d 683, 29 

St.Rep. 1090; Davis v. Davis, 159 Mont. 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 to review 

the evidence is based on the sound premise that the trial court 

and jury have an obvious advantage over the appellate court in 

making determinations of fact. They hear and observe the attitude 

and demeanor of the witnesses 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) the person informing Mrs. 

Hannifin that her job was lost was subordinate to her in rank, 

and (2) Mrs. Hannifin chose to pursue her remedy in the district 

court rather than through internal union verification and appeal 

channels. 
Defendant made little or no attempt to establish several 

other aspects of its case as fact, including (1) that Patsy 

Thomas had spoken mistakenly, imdependently or in excess of 

her conferred authority, (2) that Mrs. Hannifin had or should 

have had reason to disbelieve 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 in authority 

to effect her dismj-ssal, (4) that Mrs, Hannifin did voluntarily 

and with full knowledge of her actions, resign her employment, 

(5) that Mrs. Hannifin expressly or impliedly waived the protections she was 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 at trial, 

It is not 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 in this 

case the end result was just and equitable, Even if this were 

true, I do not believe the end justifies the means. And indeed, 

the means employed to circumvent Mrs. ~annifin's rights under 

her employment contract and the union constitutions are within 

the purview of constructive fraud, if intentional, or actionable 

negligence, if inadvertent, 

The finding of fact, as made by the jury, was based on substantial, credible and in some aspects uncontradicted evidence. 

There appears no indication of passion or prejudice on the part 

of the trial court or jury, The verdict and judgment did no mare 
than compensate Mrs. Hannifin for the wages the Local Union 

was contractually obligated to pay her over the remainder of 

her elected term of employment. 

I would affirm the judgment