text:
    Walter H. ALLEN et al., Respondents, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a corporation, Appellant.
    No. 49089.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.

      Hocker, Goodwin & MacGreevy, Lon Hocker, St. Louis, for appellant.
    Morris J. Levin and S. Sheldon Wein-haus, St. Louis, for respondents.
   STOCKARD, Commissioner.

This appeal is taken from the judgment of the Circuit Court of the City of St. Louis wherein eighteen plaintiffs were awarded “dismissal pay” in various amounts totaling $27,180.60 alleged to be due pursuant to the terms of a collective bargaining agreement between the St. Louis Stereotypers’ Union No. 8 of the International Stereotypers’ and Electrotypers’ Union, AFL-CIO (hereafter referred to as “Local No. 8”), of which all plaintiffs are members, and the St. Louis Newspaper Publishers’ Association, of which the “Globe Democrat” was a member.

On February 21, 1959 certain employees of the Globe-Democrat who were members of the St. Louis Newspaper Guild, a labor union not directly affiliated with Local No. 8, went on strike and established a picket line at the Globe-Democrat’s place of operations. All the plaintiffs voluntarily refused, or at least failed, to cross the Guild picket line and report for work, except Albert W. Ebeling who entered the Globe-Democrat building on the first day of the strike, stayed for a little less than an hour and then departed and did not again return. On February 21, 1959 the publisher of the Globe-Democrat sent a letter to each plaintiff in which he stated, among other things, “I regret very much that the Globe-Democrat will not be able to publish its Sunday edition because of a strike by the St. Louis Newspaper Guild. It does not appear probable that publication will be resumed in the immediate future.” On the following day the president of Local No. 8 received a telegram from the Globe-Democrat in which it was stated that no “lockout” of the members of Local No. 8 existed, and that “Any Globe-Democrat employee member of your union who has presented himself today or continues to report for work at his accustomed place of work on his regular work days and hours will be put to work and paid his regular day’s pay at the straight time rate until the work stoppage caused by the Newspaper Guild is ended or until further notice.” The president read this telegram to the members of Local No. 8 at a meeting but none of the plaintiffs reported for work.

On February 27, 1959, while the Guild strike was still in progress, the Globe-Democrat sold to the Pulitzer Publishing Company (hereafter referred to as the “Post-Dispatch”), which published the St. Louis Post-Dispatch newspaper, its principal physical properties and entered into a contract with the Post-Dispatch whereby it would print the Globe-Democrat newspaper “from the date when Globe-Democrat Publishing Company is prepared to resume publication following the settlement of the present strike of its employees.” The sale resulted in a transfer to the Post-Dispatch of all of the equipment used by the plaintiffs in their previous employment with the Globe-Democrat as stereotypers. A notice by letter of this sale was furnished to each plaintiff and to the representative of Local No. 8 which stated, in part, as follows:

“To effect greater economy and efficiency in mechanical operation, The Globe-Democrat today entered into an agreement with the St. Louis Post-Dispatch under which The Globe-Democrat will be printed by the Post-Dispatch, when and if the Guild strike is settled.
“The sale is of the physical property only. The editorial, advertising, circulation and business departments of the two newspapers will be entirely separate. The Globe-Democrat will continue as a completely independent newspaper in every sense of the word.
“The consolidation of mechanical operations between competing newspapers finds great precedent in many cities throughout America, a list which we suspect may grow larger in the future as the mechanical costs of publishing a daily newspaper continue to rise. The editorial, advertising, circulation and business independence of these newspapers has not in.any way been affected. I assure you that it will not be affected in St. Louis.
* * * * * *
“Members of the mechanical unions will be employed on a priority basis in the consolidated mechanical operation. If they all cannot be employed, the dismissal provisions of the current mechanical contracts will apply.
******
“I can assure you that The Globe-Democrat will continue in the future, as it has in the past, as an independent newspaper and as a mighty force for good in St. Louis, in Missouri and in America.”

On May 27, 1959, the Guild strike terminated, and throughout the entire period of the strike the Globe-Democrat maintained the status of plaintiffs as employees, insofar as its contributions were called for under the Blue Cross-Blue Shield program and group life insurance program. None of the plaintiffs, with the one minor exception previously noted, worked for the Globe-Democrat during the Guild strike or after its termination. Most of the plaintiffs took employment as stereotypers with the Post-Dispatch.

The provision in the collective bargaining agreement under which plaintiffs seek to recover “dismissal pay” is as follows:

“ARTICLE VII
“Dismissal Pay
“Section 1. Any employe who has had a regular situation for more than one j'ear who is laid off to reduce the force shall receive dismissal pay on the basis of one week’s pay for each year of continuous employment.
“Section 2. In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by this agreement all employes who lose employment thereby shall receive dismissal pay as follows :
“Employes who have held regular situations for more than six months but less than one year shall be paid six weeks’ dismissal pay.
“Employes who have held regular situations for more than one year shall be paid twelve weeks’ dismissal pay.
“Section 3. Dismissal pay shall be at the employe’s regular straight time rate of pay as of the time of dismissal.”

The collective bargaining agreement does not provide -for “dismissal pay” to an cm-ployee in any and all situations wherein the employment status is terminated, other than those specifically excepted, as do some and probably most labor agreements. See Globe-Democrat Publishing Company v. The Industrial Commission, Mo.App., 301 S.W.2d 846; Talberth v. Guy Gannett Publishing Company, 149 Me. 286, 100 A.2d 726, 40 A.L.R.2d 1036; Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147; and the cases collected in the annotation at 40 A.L.R.2d 1044. Instead, the agreement provides for “dismissal pay” in only certain specifically defined and delimited situations, and in doing this the Globe-Democrat is relieved from the duty or obligation to make such payment in all other situations. Plaintiffs base their claim on the provision in Section 2 of Article VII of the agreement which obligates the Globe-Democrat to make payment of “dismissal pay” to “all employes who lose employment” in the event of the “permanent suspension of publication by any newspaper covered by this agreement.” While they alleged in their petition that the Globe-Democrat notified them of their dismissal “and the permanent suspension of the printing of its own newspaper,” their main instruction directed a verdict on the basis of a finding that there was “a permanent suspension of publication * * * as the term * * * appears and was used in the said collective bargaining contract.” Our ultimate ruling makes it unnecessary to rule on certain questions presented by the Globe-Democrat concerning the submission of such an issue to the jury in that manner.

On this appeal the Globe-Democrat contends that the facts proved by plaintiffs do not authorize a finding of “a permanent suspension of publication.” Plaintiffs contend, on the other hand, that (1) the allegation of a “permanent suspension of printing” is the ultimate fact from which the court and jury could find that a “permanent suspension of publication” occurred; (2) the use of the term “suspension of publication” in the collective bargaining agreement which provided “for the performance of certain mechanical operations relating solely to printing has reference to, and in the context used is intended to mean and require as a necessary element, the physical act of cessation of the printing and other mechanical operations;” and (3) the term “publication” and its derivatives is in its various contexts synonymous with the term “printing” and its derivatives. Plaintiffs also argue that the Globe-Democrat “would have the court believe that the plaintiffs were expert lexicographers well aware of the fine etymological distinctions” between the words “printing” and “publish.” This latter argument apparently is directed to the issue as to what the parties to the collective bargaining agreement intended when the terms thereof were negotiated and agreed to. While plaintiffs as third party beneficiaries are entitled to enforce the terms of the collective bargaining agreement inserted therein for their benefit, Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787; 31 Am.Jur. Labor § 128, they are not parties to the agreement. They must rely on the terms of the agreement as agreed to by the parties thereto, and the agreement is subject to the same rules of interpretation as other contracts. 56 C.J.S. Master and Servant § 28 (41)a.

Our first impression was that the term “permanent suspension of publication” was plain, clear and unambiguous, that no construction was called for, and that this unequivocal language should be given its plain meaning and enforced as written. See Community Federal Savings and Loan Association of Overland v. General Casualty Company of America, 8 Cir., 274 F.2d 620, which sets forth the rule adhered to by the courts of Missouri. However, when considered in all the circumstances, and in view of the language of some court decisions, we conclude that it may reasonably be said that the phrase is fairly susceptible to different constructions, and we shall look to the circumstances, the purposes of the provision, and the context in which used in order to ascertain the intent of the parties. Wilson v. Owen, Mo., 261 S.W.2d 19, 23; 56 C.J.S. Master and Servant § 28 (41)a. In support of their contention that the term “publish,” and its derivatives, is synonymous with the term “printing,” and its derivatives, plaintiffs quote from Webster’s International Dictionary, 2nd ed. the definition of the word “publish” as follows: “To bring before the public, as for sale or distribution; esp.: a. To print, or cause to be printed, and to issue from the press, either for sale or general distribution, as a book, newspaper, piece of music, engraving, etc.” They also quote from the same source the definition of the word “publication” as follows: “The issuing to the public of copies, now usually printed or similarly produced copies, of a book, engraving, or the like; hence, the business of printing, etc. such copies; * * However, the expression “etc.” refers back to the previously stated activities, and the last phrase, when completed to give the full intended definition is, “the business of printing [and issuing to the public] such copies [that is, copies of a book, engraving, or the like].” These dictionary definitions are of limited help. We do not consider that they establish that the two terms are synonymous, but they do indicate that in some circumstances depending on their use they may have somewhat similar meanings.

Very few cases have been found which construe the words “publication” or “printing” in relation to newspapers. It may be said, with certain isolated exceptions subsequently noted, that the reported cases are generally to the effect that although the “words ‘print’ and ‘publish’ are often confused,” the “word ‘publish’ cannot be construed to mean ‘print,’ ” Wolfe County Liquor Dispensary Ass’n v. Ingram, 272 Ky. 38, 113 S.W.2d 839; there “is a distinction between printing a newspaper and publishing a newspaper” and a person “is not required to print a paper in order to publish same, but can have the printing done elsewhere,” Cox v. First Mortgage Loan Co., 173 Okl. 392, 48 P.2d 1060; a newspaper “might be printed but never published” and it is “published when put in general circulation,” Lewis v. Tate, 210 Ark. 594, 197 S.W.2d 23; Wolfe County Liquor Dispensary Ass’n v. Ingram, supra; a newspaper is published at that place where it is first put in circulation “and not at the place where it is printed,” Bardwell v. Town of Clinton, La.App., 180 So. 148; Vick v. Bishop, 252 Ala. 250, 40 So.2d 845; Madigan v. City of Onalaska, 256 Wis. 398, 41 N.W.2d 206; Addison v. Town of Amite City, La.App., 161 So. 364; State v. Briwa, 198 La. 970, 5 So.2d 304; in determining the place of “publication” it is immaterial where the printing is done, Loos v. City of New York, 170 Misc. 14, 104, 9 N.Y.S.2d 760, 774; and “it would strain every rule of construction beyond all reasonable limits to read the words ‘printed’ and ‘publication,’ which have well defined meanings, as being synonymous. Printing implies the mechanical art by which type is imprinted upon the paper, whereas, publishing means the conveying of knowledge of notices.” Haban v. Suburban Home Mortgage Co., Ohio App., 57 N.E.2d 97, 100.

Turning to what we consider to be the limited exceptions, we find that this court in a nonadversary proceeding held that the statutory requirement that the supreme court docket “be printed in the county” where court is to be held required the docket to be published in a newspaper in Cole County. This result was reached after a review of an unusual history of the statutory requirement, and because, according to the court, the Legislature “unfortunately used the word ‘printed’ instead of the word ‘published,’ but meaning all the time a publication of our docket in a local newspaper.” See In re Publishing Docket in Local Newspaper, 266 Mo. 48, 187 S.W. 1174, 1176, in which the opposite result was reached by a divided court with a dissent by Judge Graves, and In re Publication of Docket of Supreme Court, 266 Mo. 48, 232' S.W. 454, where the majority of a divided court adopted the reasoning in the dissent filed in the earlier case. In Nebraska Land, Stock-Growing & Investment Co. v. McKinley-Lanning Loan & Trust Co., 52 Neb. 410, 72 N.W. 357, the statute required that a notice of foreclosure be “by advertisement in some newspaper printed in the county.” The affidavit, which stated that the newspaper was “published” in the county was held sufficient because the object of the requirement of the statute was to give notice, and if the Legislature had in mind the distinction between “print” and “publish” it would not have selected the place of printing instead of that of publication to serve that purpose. State ex rel. Vickers v. Board of Com’rs. of Big Horn County, 77 Mont, 316, 250 P. 606, pertained to the authority of a county to contract for public printing with a newspaper published in the county which was actually printed elsewhere when the statute authorized a contract “with some newspaper, published at least once a week, and of general circulation, published within the county.” It was held that while the statute used the word “published” the meaning depended upon the subject with which it was connected; that to publish a newspaper is “to compose, print, issue, and distribute it to the public;” that the purpose of the statute “was to compel the letting of printing contracts to local newspapers, in order that local capital and local labor should secure the benefits of the expenditure of money derived from local taxes;” and therefore the word “published” as used in the statute “evidently” meant “printed and published.”

We conclude that the term “publication of a newspaper” when used in its ordinarily understood meaning and particularly when used by those familiar with the terminology used in the newspaper industry, refers to the business of causing a newspaper to be composed, edited, printed, and disseminated or distributed to the public. In order to “publish” a newspaper it is not essential that the “publisher” actually perform, as distinguished from contracting to have it done, each and every one of the above named operations. For example, we know that newspapers frequently reprint and publish articles previously written or composed which were obtained from other newspapers or news services, and the act of distributing the newspaper is frequently done by contract, particularly in large cities. There is no question but that the Globe-Democrat was “published” prior to the Guild strike. Yet, the “comic magazines” and the “Rotogravure” sections were printed at Buffalo, New York, and Louisville, Kentucky, respectively. After the Globe-Democrat entered into a contract with the Post-Dispatch the “Sunday supplement Green Sheet” was printed by the World Color Press in St. Louis, and certain portions of the Post-Dispatch were also printed by the World Color Press. To demonstrate that it is not an uncommon practice for a publisher to contract for the printing of its publication, the Army Times Publishing Company, which publishes, as that term is generally known,, the “Army Times” and the “Navy Times” has those publications printed by the World Color Press in St. Louis. Other examples could be cited. Therefore, the fact that the Globe-Democrat terminated the practice of causing its newspaper to be printed by its own employees in its own building or plant did not result in a “permanent suspension of publication” as that term is generally known and understood.

While we do not consider it particularly persuasive, and certainly not controlling, the fact that the above distinction between publishing a newspaper and printing it was the general understanding on the part of those plaintiffs who testified is clearly evidenced by their testimony, and also by Mr. Leroy J. Selby, the president of Local No. 8 during the Guild strike, who testified that after that strike the Globe-Democrat resumed publication and the Post-Dispatch started to print the Globe-Democrat newspaper. It is true that Mr. William K. Luttrell, president of Local No. 8 at the time of trial, testified that “There is no difference as far as I’m concerned” between “publication” and “printing,” that it was his understanding that “publication” means “The printing of a newspaper,” and that after the Guild strike he “would ascertain that [the Globe-Democrat] was circulated” and not published. However, he first testified that the basis for his opinion was the “Missouri Supreme Court Ruling” about which plaintiffs’ attorney had told him on the previous day, and he then stated that aside from that ruling he based his opinion on “The fact that we [apparently meaning members of Local No. 8] are not there to print it, I don’t know where the publication is coming from,” and that he had had that opinion for “over two years.” In this connection it also is interesting to note that in their petition plaintiffs allege that on February 27, 1959 the Globe-Democrat notified them of “the permanent suspension of the printing of its newspaper, but in the first paragraph of the petition they allege that at the time of the filing of the petition, April 15, 1959,, which was before the Guild strike ended, the Globe-Democrat “is and was at all times hereinafter mentioned doing business * * * publishing a daily newspaper * *

As previously noted, in at least three court cases it has been stated that by reason of the particular attending circumstances “publish” and “print” may be construed to mean the same. The question is thus presented whether in this case we should consider that by use of the term “publication” the parties to the agreement really meant “printing” notwithstanding that as generally known and understood the terms have different meanings. We are convinced that we cannot. The collective bargaining agreement was the “result of negotiations between the parties,” and while the identity of the representatives of the parties in the negotiations are not shown, the procedure was for a negotiating committee on behalf of Local No. 8 to meet with representatives of the two newspaper publishing companies comprising the St. Louis Newspaper Publishing Association. These persons unquestionably were familiar with the newspaper business and the terms ordinarily and regularly used in the industry. Article V of the agreement is entitled “Vacations,” and it is therein provided, among other things, that “If an employe is discharged for cause, or in any other manner severs his connection with the office prior to taking an earned vacation, such vacation pay, including pro rata credits earned within that same year, shall be due and payable to him within one week from the date of such action.” Mr. Selby testified that the term “the office” as here used meant the employee’s particular employer. He also agreed that by this provision an employee would be entitled to “vacation pay” whether he quit his employment, was “fired,” was laid off to reduce the force, or because he lost his job by reason of a “permanent suspension of publication.” It is thus clear that when the parties desired to provide that “vacation pay” be given to an employee in the event of his termination of employment for any reason, the parties so expressed that intent in clear and unequivocal language. Plaintiffs argue, however, that they were employed to perform mechanical operations, and that pursuant to the collective bargaining agreement they could only do or be required to do work which “pertains to stereotyping,” and it is “perfectly understandable, therefore, for stereotypers to testify that so far as they were personally concerned, they saw no difference between printing and publication.” But, is this what those who negotiated the agreement meant by the words used? Our objective in construing the terms of the agreement is not to determine what the parties intended to say, but what they intended by what they did say. Chater v. Carter, 238 U.S. 572, 35 S.Ct. 859, 863, 59 L.Ed. 1462. See also Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262. In the absence of some reason to require a different rule, and none here exists, “The test of the meaning, of words commonly used, should be their ordinary and popular meaning; and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people.” Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 129 A.L.R. 1094. For all we know, the negotiating committee for Local No. 8 may have insisted on a provision authorizing the payment of “dismissal pay” in the event of a termination of employment for any reason not the fault of the employee, which apparently is the usual provision or at least not an infrequent provision when severance pay is provided for in a collective bargaining agreement. On the other hand, the negotiators on behalf of the St. Louis Publishers’ Association may have insisted that there be no provision whatever in the agreement pertaining to “dismissal pay,” but as' a compromise, with a full understanding by all the negotiators of the distinction between “publication of a newspaper” and the necessary mechanical arts involved in the “printing of a newspaper” it was agreed, by reason of each side surrendering a portion of its demands, that the agreement should contain the precise wording used. In interpreting a collective bargaining agreement we must construe them as written, not as we may think they should have been written, and certainly not by interpolating words in them which are not there.

We find nothing in the circumstances pertaining to the use of the phrase “permanent suspension of publication” to justify a conclusion that those who drafted and negotiated the terms of the agreement did not intend to use the term as generally known and understood in the newspaper industry, and such evidence as there is on the matter compels the conclusion that the term was so used and intended. When we examine the language in the collective bargaining agreement and construe it according to the applicable rules, we must and do conclude that there is no evidence that plaintiffs lost employment because of a “permanent suspension of publication” on the part of the Globe-Democrat, and for that reason the judgment is reversed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.

On Motion for Rehearing or to Transfer to Court En Banc.

PER CURIAM.

Plaintiffs present a motion for rehearing containing thirty assignments of error. In their suggestions in support thereof they discuss only the contention pertaining to the alleged “failure by the Court to apply federal substantive law in reaching its decision,” and those are the only assignments which merit additional comment.

Plaintiffs contend that pursuant to Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a), and the decisions of the United States Supreme Court this court was required to apply federal substantive labor law in reaching its decision. We have re-examined plaintiffs’ brief and find that no federal statute was cited therein, not even Section 301(a), supra, and no federal cases whatever were cited. In the submission of this case they relied solely on state court cases, primarily those from Missouri. It has long been the rule that new propositions and complaints not submitted in the original briefs, Ford v. Wabash Ry. Co., 318 Mo. 723, 300 S.W. 769, 778, and raised for the first time after the opinion is handed down, Phippin v. Missouri Pacific Ry. Co., 196 Mo. 321, 93 S.W. 410, 418, or which are clearly afterthoughts, State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286, 292, will not be considered on motion for rehearing. We do not propose now to change or relax that rule. However, if in a suit in a state court by an employee against an employer on a collective bargaining agreement, we are required to apply “federal substantive law” and we did not do so, and the result reached is contrary to such law, then plain error would have resulted. We may, in our discretion, consider plain error affecting substantial rights, Civil Rule 79.04, V. A.M.R., and on that discretionary basis we shall examine the contention, presented now for the first time, that we erred in not ruling the case pursuant to “federal substantive law” which plaintiffs at no time urged.

Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185 (a), provides as follows: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” In Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, the United States Supreme Court, speaking through Mr. Justice White, stated that this section “has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts.” Quoting then from Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, the court also said: “ ‘The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ ”

Plaintiffs assert that “Under federal law the courts may even interpolate * * * if the federal policy will be served thereby,” and although they say “such is not needed here” they clearly imply that their understanding of federal policy is that they should not lose this litigation, and that we should read into the contract such non-existing provisions as are necessary to carry out that policy. They say we “deviated from federal requirements” when we applied “the same Missouri law that would be applied to all contracts regardless of their nature,” and “had the court considered federal law and endeavored to reach a conclusion consonant therewith, the court should have found itself compelled to reach a contrary result.” They further argue that the result of plaintiffs losing this litigation “would certainly never promote industrial stability or peace and can only be ‘a breeder of discontent and unharmonious relations between employer and employees,’ ” and the “failure to consider the interests and position of the plaintiffs could never meet or satisfy the federal requirements or standards.”

We are not convinced that it is “federal policy” that in a suit of this nature we must interpolate into the contract such nonexisting provisions as may be necessary in order to enable plaintiffs to prevail regardless of the merits of their position. We shall, therefore, turn to the question of whether the result we reached in construing the terms of the contract as written is contrary to “federal substantive law.” In their motion for rehearing plaintiffs cite not one federal case construing language of a collective bargaining agreement which was the same or similar to that construed in the principal opinion, and not one federal case is cited in the motion for rehearing which tends to hold that the result we reached is construing the contract as written is incorrect. In the preparation of the principal opinion we ruled the issues by giving the language of the contract its normal meaning in accordance with its accepted usage. In doing so we considered every case cited by plaintiffs, none of which were federal cases. In our research on the issues we studied and considered not only Missouri cases, but the federal cases and cases of other states pertaining to the issues. We found no federal case directly in point, but we cited two, a court of appeals opinion and an opinion of the United States Supreme Court, on related matters. Assuming, therefore, that in this suit we are required to apply federal substantive law, it is our conclusion that we did so insofar as there has been a pronouncement thereof by the federal courts, and that we correctly applied it and the result reached is in accord therewith. There is absolutely nothing in Smith v. Evening News Association or any other federal case cited by plaintiffs in their motion for rehearing, which directly or inferentially holds that the result we reached is contrary to federal substantive law, and plaintiffs certainly have not demonstrated in their motion for rehearing that on the merits we reached an incorrect result. The motion for rehearing is overruled.

For the reasons set forth in the per curiam in Irwin v. Globe-Democrat Publishing Company, Mo., 368 S.W.2d 452, there is no federal question which requires or justifies a transfer of this case to the court en banc. No supreme court rule requires, and we find no reason to order, its transfer. The alternative motion to transfer to the court en banc is denied.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Meyer ACKERMAN et al., Respondents, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a Corporation, Appellant.
    No. 49308.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.

      Hocker, Goodwin & MacGreevy, Lon Hocker, St. Louis, for appellant.
    Bartley & Bartley, Malcolm L. Bartley, Donald S. Siegel, St. Louis, for respondents.

      . In addition to § 351.450 we are referred to § 363.770 et seq. §§ 355.195, 352.140, 394.210 and 394.220, and

   HOUSER, Commissioner.

This is an action by 154 members of St. Louis Typographical Union No. 8 against Globe-Democrat Publishing Company, a corporation, which is engaged in the business of publishing a daily newspaper in St. Louis known as the “St. Louis Globe-Democrat,” for severance pay under a collective bargaining contract. A jury in the Circuit Court of the City of St. Louis returned a verdict for plaintiffs for $234,-707.80 plus interest. Judgment was rendered accordingly. Defendant appealed.

The union, an unincorporated labor organization, was the designated and recognized sole bargaining agent of all Globe-Democrat employees engaged in composing room work. The union and the corporate publisher will be referred to as “Union” and “Globe-Democrat.”

On June 17, 1958 Union and St. Louis Newspaper Publishers’ Association (consisting of the two corporations which publish the St. Louis Post-Dispatch and the St. Louis Globe-Democrat) entered into a written collective bargaining agreement for the period January 1, 1958 to December 31, 1959, providing the hours, wages and other terms and conditions of employment of plaintiffs by Globe-Democrat.

We have italicized the portion of the article of the agreement which forms tire contractual basis of this action:

“ARTICLE XI

Severance Pay

'T. Situation holders laid off to reduce the force shall receive severance pay of one week’s pay for each year of continuous priority.

“2. In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by this contract, all employes who lose employment thereby shall receive severance pay as follows:

“Employes having six months priority standing, six (6) weeks’ pay.

“Employes having one year or more priority standing, twelve (12) weeks’ pay.

“3. Such severance pay shall be at the employe’s regular straight time rate of pay. Priority standing shall be as recorded on the books of chapel officers at the time of such lay off, suspension, merger or consolidation.”

On February 21, 1959 the St. Louis Newspaper Guild, a union not affiliated with the typographical union, struck against Globe-Democrat and established a picket line. Plaintiffs, typographical union members, who had been working at Globe-Democrat on various shifts, and all other mechanical craft employees, refused to cross the Guild picket line. By a provision of the contract each of these plaintiffs had a right to refuse to cross the picket line without being disciplined therefor, but without payment for time lost. The publisher of the Globe-Democrat that day sent a letter to all employees saying “I regret very much that the Globe-Democrat will not be able to publish its Sunday edition because of a strike by the St. Louis Newspaper Guild. It does not appear probable that publication will be resumed in the immediate future.”

About 3 o’clock a. m. on February 22 the Globe-Democrat delivered a letter to the Union president saying: “Any employee member of your union who presented himself for duty at his accustomed place of work in the Globe-Democrat building composing room today or does so Sunday, February 22, 1959, will be put to work and paid his regular day’s pay at the straight time rate. This condition also applies to regular situation holders who are members of your union, who continue to report for duty at the Globe-Democrat building at their accustomed place of work on their regular work days and hours until the work stoppage caused by the St. Louis Newspaper Guild is ended or until further notice.” On February 27, 1959 Globe-Democrat sold its building, printing plant, machinery, equipment and other personal property to Pulitzer Publishing Company, publishers of the St. Louis Post-Dispatch, under an agreement by which Pulitzer agreed to print the Globe-Democrat for ten years from February 27, 1959, beginning the date the Globe-Democrat was prepared to resume publication following settlement of the then-existing strike of its Guild employees. This agreement provided, among other things, that “both parties are desirous of retaining their separate identities and their separate news, advertising, circulation and editorial policies” so as to present to the public more than one coverage and opinion of public affairs by two independent newspapers. Pulitzer agreed to pay all printing expenses from the point where the copy was received to delivery of the printed newspapers at the truck side of the loading dock, where Globe-Democrat would accept and be responsible for their delivery. Globe-Democrat was to maintain in its own separate quarters its own business, advertising, circulation, news and editorial departments and pay all expenses up to delivery of the material for printing and all expenses of delivery of newspapers from the loading dock. Globe-Democrat was to be responsible for all wages or other obligations incurred prior to date Pulitzer began printing the Globe-Democrat and Pulitzer was to be liable only for wages, etc. incurred in the printing of the Globe-Democrat after said date. Pulitzer agreed to employ any additional persons it might need to print the Globe-Democrat “from the present employees of Globe-Democrat Publishing Company if available, but shall not be obligated to employ any of the [said employees] whose services are not actually needed by it.”

On the same day the publisher of Globe-Democrat sent a letter to all its employees, saying in part:

“To effect greater economy and efficiency in mechanical operation, The Globe-Democrat today entered into an agreement with the St. Louis Post-Dispatch under which the Globe-Democrat will be printed by the Post-Dispatch, when and if the Guild strike is settled.
“The sale is of the physical property only. The editorial, advertising, circulation and business departments of the two newspapers will be entirely separate. The Globe-Democrat will continue as a completely independent newspaper in every sense of the word.
“The consolidation of mechanical operations between competing newspapers finds great precedent in many cities throughout America, a list which we suspect may grow larger in the future as the mechanical costs of publishing a daily newspaper continue to rise. The editorial, advertising, circulation and business independence of these newspapers has not in any way been affected. I assure you that it will not be affected in St. Louis.
“Members of the mechanical unions will be employed on a priority basis in the consolidated mechanical operation. If they all cannot be employed, the dismissal provisions of the current mechanical contracts will apply.”

None of plaintiffs performed any work for, received any compensation from, or were called back to work by Globe-Democrat after February 27, 1959. All plaintiffs were on the last priority (seniority) list made up in February, 1959, which showed when each member of Union became an employee of Globe-Democrat. Union had another group of members (called a “chapel”) in the composing room of the Post-Dispatch. None of plaintiffs’ names appeared on the priority list at the Post-Dispatch chapel as of February 27, 1959. A member of Local 8 in the employment of the Globe-Democrat could not have priority with more than one newspaper at the same time, and if an employee lost priority standing at Globe-Democrat and took a job at some other newspaper his priority would begin as of the date of his employment by the second employer and his priority prior to February 27, 1959 was lost. Those plaintiffs hired by Post-Dispatch after February 27, 1959 were given situations in their priority at the bottom of the Post-Dispatch priority list. The president of Union testified that at a meeting on February 27, 1959 called by the publisher of Globe-Democrat, attended by representatives of the mechanical craft unions, the publisher announced the sale of Globe-Democrat’s printing equipment to Pulitzer and that Globe-Democrat would no longer need the services of the members of the various mechanical unions, and that Post-Dispatch would hire what they needed of the former Globe-Democrat employees “and those who were not employed by the Post-Dispatch would receive severance pay.”

Certain alleged admissions by Globe-Democrat, by way of pleading in the several lawsuits involving the various mechanical crafts unions, were read in evidence. By these pleadings Globe-Democrat admitted that it gave notice that there had been a merger of mechanical operations of the two newspapers; that it gave notice that the mechanical operations of the two companies were consolidated and merged and operated solely and exclusively by and under control of Pulitzer; that there had been a discontinuance of mechanical operations by Globe-Democrat. In its answer in Irwin v. Globe-Democrat Publishing Company, Mo., 368 S.W.2d 452 before this Court, Globe-Democrat construed the arrangement between Globe-Democrat and Pulitzer as a merger or a consolidation of the mechanical functions of the two publishers. Globe-Democrat also admitted in a pleading that the Globe-Democrat gave notice to plaintiffs and their union representatives of the discharge of plaintiffs and the suspension of the printing of the newspaper by Globe-Democrat. Since February 27, 1959 Globe-Democrat has not owned the building where, or the equipment on which, plaintiffs performed their accustomed work, and has had no contractual right to use presses, printing equipment and auxiliary facilities with which Globe-Democrat newspapers could have been printed. As a consequence of the strike Post-Dispatch had need for additional help in its mechanical department. Some of the plaintiffs were sent by Union to Post-Dispatch to do this additional work. Some were' sent to other places of employment. At Post-Dispatch these former employees of Globe-Democrat did not immediately get “situations” under union law that if an employee occupies a position for five successive nights and days in an employment he is entitled to a situation, because Union “froze” the priority board at Post-Dispatch until after the end of the Guild strike at Globe-Democrat (May 27, 1959). The freeze officially went off at approximately the time the Post-Dispatch started printing the Globe-Democrat, June 1, 1959. On June 2, 1959 Post-Dispatch made a statement of policy with reference to new employees formerly employed by Globe-Democrat, to the effect that they would be “new” employees of Pulitzer; that Pulitzer was under no obligation to employ any particular person or any number of persons formerly employed by Globe-Democrat, but had agreed to select such new employees as it might need from qualified former employees of Globe-Democrat, if available, stressing that Pulitzer had no connection with Globe-Democrat except its agreement to print Globe-Democrat on a contract basis in Pulitzer’s plant. The notice also stated that in the event a former employee of Globe-Democrat, should become eligible to dismissal or severance pay after employment as a new employee of Post-Dispatch only actual service in employ of Post-Dispatch should be taken into consideration in computing the amount of such severance pay. Globe-Democrat continued to pay the employer’s contribution for plaintiffs’ Blue Cross-Blue Shield coverages after February 27, 1959, and as long as June 1, 1959. The court refused an offer by Globe-Democrat to prove that among the persons engaged in the printing trade and printing business in the St. Louis area the word “printing” means the mechanical reproducing of type on paper, and the word “publication” means the making public of printed matters. Plaintiffs introduced no evidence that in the trade “publication” is understood as the equivalent of “printing,” or that Globe-Democrat Publishing Company as a corporation had been involved in any merger or consolidation. It was established that there was no change in the corporate status of the Globe-Democrat Publishing Company, a corporation, since its incorporation in 1873, and that neither Globe-Democrat nor Pulitzer acquired any interest in the other’s corporation. Post-Dispatch has been printing the Globe-Democrat under its agreement, since June 1, 1959, with the exception of 14 days in June, 1959 when publication was interrupted by a strike at Post-Dispatch.

Plaintiffs’ petition sought severance pay under Article XI, paragraph 2 of the collective bargaining agreement, supra, on the basis of allegations that the mechanical operations of the two papers were consolidated and operated exclusively by Post-Dispatch, and that there was a merger, consolidation or permanent suspension of the printing of the Globe-Democrat by defendant, but plaintiffs’ main instruction directed a verdict on the basis of a finding that there was a “merger, consolidation or permanent suspension of publication by defendant as set out in Article II, paragraph 2 of the aforesaid collective bargaining agreement,” and that “plaintiffs, or any of them, lost employment thereby with defendant, * *

The court defined the term “lose employment thereby” occurring in Article XI, paragraph 2, as “loss of employment with any newspaper in the event of a merger, consolidation or permanent suspension of publication” and instructed the jury to disregard whether plaintiffs worked for other employers after loss of employment with, Globe-Democrat.

The court refused defendant’s motion for a directed verdict; and refused Instructions B and C, withdrawing consideration of whether there was a permanent suspension of publication and whether there was a merger or consolidation, and Instruction D’ defining “merger,” “consolidation” and “publication,” all offered by defendant.

On this appeal defendant makes 10 points, six of which relate to the phrase “merger, consolidation or permanent suspension of publication”; four of which involve the phrase “who lose employment thereby.”

The first point is that the court erred in refusing defendant’s motion for a directed verdict because there was no evidence to support the necessary finding of either a “merger, consolidation or permanent suspension of publication” within the meaning of paragraph 2, Article XI, supra.

Globe-Democrat’s position is that “merger” and “consolidation” are words of* art having a specific meaning in the law of corporate reorganization, and that they were so used here; that the words “merger, consolidation * * modified by the adverbial phrase “by any newspaper,” refer to merger or consolidation of the corporate entity Globe-Democrat Publishing Company, and to the assimilation of two or more corporate entities into one; that under the collective bargaining agreement employees are entitled to severance pay if they lose employment by reason of a corporate merger or consolidation, but these terms were not intended to cover loss of employment due to merger or consolidation of a department or a composing room, or suspension of the printing function upon sale of its physical plant and printing equipment, by a corporation which continues in business.

Globe-Democrat cites § 351.450, V.A.M. S., under which the several corporations involved in a statutory merger or consolidation become a single corporation known as “the surviving corporation” in cases of merger, and “the new corporation” in cases of consolidation; the separate existence of all corporations in a plan of merger or consolidation ceases, except for the surviving or new corporation, which thereafter possesses all of the rights, etc. of the merging or consolidating corporations, and all property, debts, etc. of them are taken to be transferred to the single corporation, along with the liabilities and obligations of the corporations so merged or consolidated. Appellant says Globe-Democrat Publishing Company and Pulitzer Publishing Company, each of which survived and preserved its ■own separate corporate existence and identity, did not merge or consolidate into a “surviving or new corporation.”

Globe-Democrat contends that the words ■“merger” and “consolidation” express ideas which, although nearly the same, are distinct enough to require that both words be used when both types of corporate reorganization are intended to be encompassed; that if merely unification of function had been intended, either word would have expressed the whole of the idea and there would have no need of both; that the use and juxtaposition of these two words, in the contract, echoing their use and juxtaposition in the statutes, indicates that the parties had in mind the type of merger or consolidation to which the statutes refer.

Globe-Democrat further contends that even if the words are to be construed with an imprecise and general meaning, it is nevertheless plain that the parties did not intend that the clause operate in the event of any type of partial or functional unification. It points to the modifying phrase “by any newspaper covered by this contract,” contending this refers to Globe-Democrat Publishing Company, a corporation, and that it is the publishers and the conduct of the business of the corporate publishers, not the publications, that are “covered by this contract.”

Globe-Democrat also relies upon the dictionary definition of “consolidation” (“to bring together and unite firmly into one mass or body”) and “merger” (“to sink or disappear into something else; be swallowed up; lose identity or individuality: with in.”)

Globe-Democrat says the only fact or evidence pleaded, proved or submitted to the jury upon which to predicate the conclusion of merger or consolidation was the sale of the plant and equipment and the execution of the printing contract, neither of which indicates that Globe-Democrat was united with or swallowed up by Pulitzer, and that this is true whether the word “newspaper” be construed to mean the publisher or the publication. It maintains that the contract between the publishers carefully preserves the separate identity and mutual independence of the two corporations, and is a simple printing contract; that there is no evidence of any uniting or swallowing up by either of them or that the absolute separation preserved by the contract has not been scrupulously observed in fact; that no merger or consolidation was shown by the evidence.

Union’s position is that “merger” and “consolidation” was intended to include any sort of uniting or combining of the printing function as a result of which employees lose their employment. They refer to paragraph I of the Preamble to the collective bargaining agreement, which provides: “All wages, vacation credits, retirement pay credits and severance pay credits shall be considered as an earned equity and shall have prior claim in the event of merger, permanent suspension or liquidation. The cash equivalent of any such earned equity shall be paid immediately upon any employe’s severance of employment as a result of such merger, permanent suspension or liquidation,” and to Section 13, Article III, General Laws of the Union, which provides : “Subordinate unions shall incorporate in proposed contracts a clause providing for * * * severance pay of not less than two weeks pay for each year of priority in the office for all journeymen affected by suspension or mergers * * The failure in these quotations to use the words “merger” and “consolidation” in juxtaposition; the use only of the word “merger” and the use of the words “permanent suspension” instead of “permanent suspension of publication” indicate that the parties intended the words “merger” and “consolidation” to mean any combining or uniting of the printing function which results in a loss of employment, so says the Union. Union proposes that the following language appearing in Section 23, Article I, General Laws of the Union, reveals that Article XI of the collective bargaining agreement is speaking of mergers or consolidations of printing offices: “In filling of apprenticeship vacancies preference shall be given to apprentice members discharged from the military services * * * whose terms of apprenticeship have been interrupted because of suspensions, mergers or consolidation of printing offices, * * *.”

Union argues that the words in question are common, ordinary words in every day use, and do not have the definite legal meaning for which appellant contends; that while they might at first have such a connotation to one trained in the law, they do not convey such a meaning to the ordinary composing room employee or a member of a union negotiating committee, to whom these words mean a unification or combining of the function of printing.

Union maintains that the parties did not mean “merger” or “consolidation” in the sense of a corporate merger or corporate consolidation; that there is no evidence to support such a construction but there is evidence that the publisher of Globe-Democrat considered that what happened constituted a merger, consolidation or permanent suspension of publication within the meaning of the contract, as shown by his oral statement and letter of February 27, 1959 indicating that those mechanical employees who did not obtain employment with Pulitzer would receive severance pay, and his references to “consolidation of mechanical operations.” Reference is made to allegations in various pleadings filed by Globe-Democrat in the five lawsuits filed in connection with the claims of the several unions, in which Globe-Democrat admitted that “the mechanical operations” of the two newspapers “were consolidated and merged” under the operation and control of Post-Dispatch, and that Globe-Democrat “and the merger, consolidation or permanent suspension of the printing” of the Globe-Democrat; admitted that Globe-Democrat gave notice to plaintiffs of a sale to Pulitzer of the building, printing presses, equipment, and physical properties of Globe-Democrat “so that the mechanical operations of the [Globe-Democrat] and [Pulitzer] could and would be consolidated and operated solely and exclusively by and under the control of [Pulitzer]”; admitted that Globe-Democrat discontinued mechanical operations; and alleged that “the arrangement between defendant and [Pulitzer] was within the meaning of Article XII, Section 1 (the same as instant Article XI, Paragraph 2) a merger or consolidation of the mechanical functions of the two publishers, * * *.”

Union also urges that the court should have ruled as a matter of law that there was a merger, consolidation or permanent suspension of employment, and a loss of employment thereby. It says this was an agreement to provide severance payments to employees of Globe-Democrat “in the event that such employees lost their employment through no fault or misconduct on their part”; that it covered the performance of composing room work; that if composing room operations were terminated employment would be terminated and it was for such a loss of employment that Article XI was intended to provide severance pay; that it would he of no concern whether appellant was able to put out a newspaper by some other means or in some plant other than its own; that it is “inconceivable” that the parties would make payment of severance benefits depend upon Globe-Democrat’s ability to continue publishing by whatever means it could, regardless of whether plaintiffs were still employed to perform composing room work.

In determining whether plaintiffs adduced evidence of merger, consolidation or permanent suspension of publication within the meaning of the agreement, and in construing the agreement to determine what the parties intended by the provision in question, we look at the relationship of the parties, the subject matter of the contract as a whole, the surrounding facts and circumstances to the extent that they are shown and bear upon the matter, and any practical construction the parties themselves may have placed upon the agreement by their acts and conduct. Leggett v. Missouri State Life Ins. Co., Mo.Sup., 342 S.W.2d 833, 852.

Thus considered, we conclude that the loss of employment referred to in paragraph 2, Article XI was loss of employment resulting from Globe-Democrat Publishing Company, a corporation, GOING OUT OF BUSINESS AS THE PUBLISHER OF A NEWSPAPER, either by corporate merger or consolidation, or by permanently suspending publication for any reason.

This seems evident not only from the specific language used in said paragraph 2, but also by considering the wording “merger, permanent suspension or liquidation” (our emphasis of language indicative of the winding up of a corporation (occurring in paragraph (I) of the Preamble.

By differentiating between the two concepts “merger” and “consolidation” the parties evidently meant to ascribe to the two words different meanings. In Dodier Realty & Investment Co. v. St. Louis National Baseball Club, 361 Mo. 981, 238 S.W. 2d 321, 324, this Court, sitting en banc, pointed out that the two words are not the same; that a consolidation exists where a new corporation comes into existence to assume the liabilities of the former corporations and the former corporations are dissolved and cease to exist, while a merger, which means something more than a mere consolidation, exists where one corporation is continued and the others are merged in it without the formation of a new corporation. And see § 351.450, V.A.M.S. The words were used in connection with “any newspaper covered by this contract,” which means in this instance Globe-Democrat Publishing Company, a corporation. When words with a well-defined meaning are used in a contract referring to a corporation it is reasonable to assume that they are used by the contracting parties in the sense ordinarily ascribed to them in the field of corporate law.

Stated in the language of corporate reorganization, there has been no merger or consolidation resulting in the formation of a surviving or new corporation and no dissolution of Globe-Democrat Publishing Company, a corporation. The stockholders of Globe-Democrat did not become stockholders of Pulitzer, or vice versa. The corporations have not been extinguished and have not been consolidated. The contract was for an absolute sale and transfer of the properties to Pulitzer, and for printing. Globe-Democrat did not become extinct, either as a corporation or as a publication. It retained its franchise and continued to function as a corporation. Its corporate identity has continued without interruption since 1873.

The mere purchase by one corporation of a part of the assets of another for a sufficient consideration (and there is no suggestion that the consideration was inadequate or that the sale was not in good faith) is not a merger or a consolidation. Mercantile Home Bank & Trust Co. v. United States, 8 Cir., 96 F.2d 655; Pinellas Ice & Cold Storage Co. v. Commissioner of Internal Revenue, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428; Drovers’ & Merchanics’ Nat. Bank of Baltimore, Md. v. First Nat. Bank, 4 Cir., 260 F. 9; Pankey v. Hot Springs Nat. Bank, 46 N.M. 10, 119 P.2d 636, 640.

Whether we define these terms by resort to legal sources, everyday dictionaries or common understanding, the words “merger” or “consolidation” by Globe-Democrat describe situations not presented by the facts in this case. There simply has been no combining, uniting, swallowing up, absorption, springing into existence of a new corporation or dissolution of an existing corporation, involving Gobe-Democrat Publishing Company, by which its identity as a newspaper and as a corporation has been extinguished.

Union’s proposition that the language employed was intended to encompass “any sort of uniting or combining of the printing function” finds no support in the wording of paragraph 2, in any other provision of the agreement, or in the evidence. The agreement makes no reference whatever to the uniting or combining of the printing function, the composing room, the chapel, the Machine Department, the Machine Tenders’ Department, the Proofroom Department, the Adroom Department, the Makeup Department, or any other unit or fragmentation of “the newspaper covered by this contract.” Instead the contract refers to “merger” or “consolidation” by any newspaper covered by this contract, which in this case means “by Globe-Democrat Publishing Company, a corporation.”

Plaintiffs also failed to prove that there was a “permanent suspension of publication.” This phrase cannot be twisted and strained to mean permanent suspension of “printing,” under any fair interpretation of the word “publication,” whether we use technical legal definitions or everyday acceptance of the words. “Publication” is not synonymous with “printing” in this situation. In the context in which it is employed, “publication” means the business of causing a newspaper to be composed, edited, printed and disseminated or distributed to the public, and the fact that the Globe-Democrat terminated the practice of causing its newspaper to be printed by its own employees in its own building or plant did not result in a “permanent suspension of publication.” Allen v. Globe-Democrat Publishing Company, Mo.Sup., 368 S.W.2d 460. The facts show a temporary suspension of publication, caused by the strike, but no permanent suspension of publication. The Globe-Democrat resumed publication June 1, 1959.

We find no practical construction, either in the pleadings filed or in its letter or oral announcement on February 27, that constitutes a binding admission against interest by Globe-Democrat that there was a merger, consolidation or permanent suspension of publication by Globe-Democrat. The most that can be said is that Globe-Democrat construed the contract of sale and for printing as a merger or consolidation of the mechanical operations of the two newspapers. A consolidation of one particular function such as mechanical operations, out of the manifold operations involved in the conduct of a newspaper business, is not a consolidation of the business, or of the corporation. An admission that the mechanical operations of two newspapers have been consolidated by a sale and printing contract is not an admission that there has been a consolidation of the two corporate entities.

Union’s references to various provisions of the General Laws of the International Typographical Union in support of their construction have little if any bearing upon the question, because the General Laws were not incorporated in or made a part of the terms of the collective bargaining agreement, except as provided in Articles II, 5 and VI, 1, both of which are immaterial here. Inconsistently, counsel for Union took the position below that the General Laws were not a part of the contract and were not binding upon Globe-Democrat.

We realize that this collective bargaining agreement was a comprehensive labor contract the object and purpose of which, from the standpoint of the bargaining representatives of Union, was to protect the interests of the members of Local 8 in every conceivable aspect of their employment, including severance pay, as fully as possible. Doubtless their objective was to provide for all contemplated circumstances in which the question of the right to severance pay might arise. The language finally agreed upon to accomplish this objective, however, was not sufficiently comprehensive to cover all situations and circumstances in which the employer-employee relationship between the members of Local 8 and Globe-Democrat might be terminated. Instead of providing for severance pay upon termination of the relationship for any reason not connected with willful breach of duty or willful misconduct (as was done in the Guild contract in Globe-Democrat Publishing Co. v. Industrial Commission, Mo.App., 301 S.W. 2d 846, 848), the agreement before us provides severance benefits in three particular eventualities only, thereby excluding all others. The parties simply failed to provide for, and the agreement does not contemplate, the situation that actually came to pass, i. e., loss of employment with Globe-Democrat resulting from the sale of the physical plant and equipment by which Globe-Democrat had been printing its newspaper, and the negotiation of a contract with an outside firm for the physical printing of the newspaper.

Plaintiffs’ rights under this agreement depend entirely upon contractual provisions. We are not at liberty to write into the contract a provision covering loss of employment by consolidation of mechanical operations or permanent suspension of printing. We cannot decide the case on the basis of what the parties may have intended to say. Our function is to determine what the parties intended by what they did say. Chater v. Carter, 238 U.S. 572, 584, 35 S.Ct. 859, 863, 59 L.Ed. 1462.

There is no evidence in this record that there was any merger, consolidation or permanent suspension of publication, within the meaning of paragraph 2, Article XI, and appellant’s motion for a directed verdict at the close of the evidence, based upon failure of proof, should have been sustained.

The judgment is reversed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

PER CURIAM.

Respondents have filed a motion for rehearing or to transfer to the court en banc. Transfer is requested on the contention that this case involves a federal question requiring the transfer of the case to the court en banc under Constitution of Missouri, 1945, Art. 5, § 9, V.A.M.S., namely, individual employees’ rights arising under a collective bargaining agreement with an employer engaged in activities affecting interstate commerce within the meaning of and subject to the Labor Management Relations Act 1947, as amended, and that the case arises under and is governed by Section 301(a), L.M.R.A., 29 U.S.C. § 185(a).

No question involving the construction of the constitution of this state or of the United States, or the validity of a treaty or federal statute, or any authority exercised under federal laws, was raised or involved in the original submission of this case, either in the trial court or in this court, until after the opinion of this court was handed down. The attempt to inject a federal question for the first time in the motion for rehearing came too late to secure a transfer to the court en banc, under our practice and procedure.

Respondents further contend that in construing this collective bargaining agreement local state law instead of applicable federal substantive law was improperly applied; that the principles and precepts of federal labor law and policy must be observed ; that the context in which this agreement was negotiated and the purpose it was intended to serve should have been considered; that collective bargaining agreements are federal contracts which are conceptually different from other contracts and subject to different approaches in their construction and enforcement. It is urged that the interests and positions of respondents were not considered; that the obvious intendment and purpose of Article XI was overlooked; that federal labor law and policy require a construction favorable to the demands of respondents; that the courts should interpolate terms which might have been but were not included in the agreement, so as to effectuate the policies of federal labor law and accomplish the “evident aims and purpose” of the agreement, where necessary; that respondents’ interpretation of the agreement is “in accord with substantive federal law,” and that we should rule in respondents’ favor because our construction of the agreement can only breed discontent and inharmonious relations between employers and employees, constitute a source of unnecessary and disrupting litigation, and have an unsettling effect upon the negotiation and administration of collective bargaining agreements throughout the country.

The suggestion that federal labor policy and federal substantive law governs the construction of this agreement is a new theory, introduced into this litigation for •the first time on the motion for rehearing. As indicated, the case was not submitted on any such theory, either in the trial court or in this court. No reference was made in respondents’ brief on appeal to federal law, in urging us to adopt their interpretation of Article XI. Both sides treated all questions for decision as questions arising under local law and determinable by local law. New propositions and complaints, not made in the original briefs, Ford v. Wabash Ry. Co., 318 Mo. 723, 300 S.W. 769, 778, and raised for the first time after the opinion is handed down by the Supreme Court, Phippin v. Missouri Pac. R. Co., 196 Mo. 321, 93 S.W. 410, 418, or which are clearly afterthoughts, State ex rel. Cole v. Matthews, en banc, Mo.Sup., 274 S.W.2d 286, 292, ordinarily will not be considered on motion for rehearing. We will consider the matter, however, sufficiently to point out the following: Although on original submission respondents cited no federal cases, but only Missouri cases and cases from other states, and on this motion for rehearing have not cited any federal cases construing a provision similar to Article XI, our original research, and our research on this motion for rehearing, was conducted in the case law of both hierarchies, state and federal. We have found no federal cases construing such a provision or a similar provision and we are of the opinion that there are no ruling cases in the federal courts applying any different rule or reaching any different result on comparable facts. Respondents have not shown that our decision is contrary to any federal decisions on this subject. We consider our decision not inconsistent with the existing body of federal law. The parties were accorded a review of the provisions of the contract under applicable law on the merits in accordance with accepted principles of construction and on the basis of what the parties said in their agreement. Neither respondents, nor appellant, were entitled to prevail on the basis of what they intended to say or might have said, or on the basis of the effect a certain construction may have upon industrial peace, nor on any basis except the merits of their contentions.

Nothing said in Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, or in any of the other United States Supreme Court decisions cited in respondents’ suggestions, militates against the conclusions we have reached. In none of these cases was there a question of construction analogous or similar to that presented in this case. Assuming that we are obliged to follow and apply federal substantive labor law and policy, the United States Supreme Court has not issued any universal ukase that in all cases of disagreement between the parties to collective bargaining agreements federal labor law and policy dictates that the position of the labor union shall be sustained arbitrarily or that the preservation of harmonious labor relations requires the capitulation of employers in all cases where questions of interpretation arise, regardless of the merits of the case, but this is what respondents seem to imply.

Having decided this case on its merits we do not conceive it to be our function to sustain respondents’ position in this case willy-nilly, “lest it be summarily returned to this Court by the Supreme Court of the United States,” as respondents’ counsel warn on page 12 of their suggestions.

Respondents’ contentions that we misinterpreted the law in holding that the General Laws were not incorporated into the agreement; in applying improper principles of review; in holding that the motion for a directed verdict should have been sustained; in ruling that permanent suspension of publication cannot be interpreted to mean permanent suspension of printing; in holding that Article XI means corporate merger or consolidation by appellant; in holding that permanent suspension of publication meant to go out of business as a publisher of a newspaper; in invading the province of the jury by construing the language of Article XI; and in failing to consider controlling decisions of local law with which this opinion is said to conflict, constitute mere reargument of issues determined by the opinion. Under Sup.Ct.Rule 83.16, V.A.M.R. reargument of such issues will be disregarded. We have carefully examined these contentions seriatim and have satisfied ourselves that no matters of law or fact have been overlooked or misinterpreted. The motion for a rehearing or to transfer is overruled.

      . These are the standards by which we determine whether there is a “federal question” requiring transfer. McAllister v. St. Louis Merchants’ Bridge Terminal Ry. Co., 324 Mo. 1005, 25 S.W.2d 791; Huckleberry v. Missouri Pac. R. Co., 324 Mo. 1025, 26 S.W.2d 980, 988; Pashea v. Terminal R. Ass’n of St. Louis, 350 Mo. 132, 165 S.W.2d 691, 696; State ex rel. Perrine v. Keirnan, 361 Mo. 871, 237 S.W.2d 156.


text:
    Joseph P. MONTEROSSO et al., Appellants, v. ST. LOUIS GLOBE-DEMOCRAT PUBLISHING COMPANY, Respondent.
    No. 49603.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.

      Jerome J. Duff and John D. Chancellor, St. Louis, for appellants.
    Hocker, Goodwin & MacGreevy, Lon Hocker, St. Louis, for respondent.
   HOUSER, Commissioner.

This is an action by sixty-four members of St. Louis Mailers’ Union, Local No. 3 of the International Typographical Union, against the corporate publisher of St. Louis Globe-Democrat for vacation pay, severance pay, and penalties under § 290.090, V.A. M.S., under a collective bargaining agreement. Tried to the court without a jury on an agreed statement of facts, the court rendered judgment for plaintiffs for $17,-462.90 plus interest for vacation pay, but denied plaintiffs’ other claims. Globe-Democrat did not appeal. Plaintiffs appeal from the order and judgment overruling their after-trial motions, now contending that in denying their claims for severance pay and penalties and interest (totaling more than $140,000) the court misconstrued the contract. We have jurisdiction because the amount in controversy exceeds $15,000, and we consider the appeal on its merits notwithstanding plaintiffs did not appeal from the judgment on the merits, because that was the evident intention of plaintiffs.

Plaintiffs were employees of and “regular situation holders” with the Globe-Democrat. The terms of their employment were governed by a collective bargaining contract between Mailers’ Union and St. Louis Newspaper Publishers’ Association. The association consists of the two corporations which publish the St. Louis Post-Dispatch and the St. Louis Globe-Democrat. The contract consisted of a preamble and sixteen articles relating to Jurisdiction, Hiring, Disputes and Discharges, Wages and Hours, Foremen, Priority, Military Service, Apprentices, Holidays, Vacations, Dismissal Pay, Jury Service-Voting Time— Funeral Pay, Sickness and Disability Benefits, and other miscellaneous matters.

We are particularly concerned with Article XI, Dismissal Pay:

“1. Any employe who has had a regular situation for more than one year who is laid off to reduce the force shall receive dismissal pay on the basis of one week’s pay for each year of continuous priority.
“2, In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by this contract, all employes who lose employment thereby shall receive severance pay as follows:
“(a) Employes having six months priority standing, six (6) weeks’ pay.
“(b) Employes having one year or more priority standing, twelve (12) weeks’ pay.
“3. Such dismissal pay or severance pay shall he at the employe’s regular straight time rate of pay. Priority standing shall be as recorded on the books of chapel officers and the books of the Publishers at the time of such lay off, suspension, merger or consolidation.”

Other provisions should be particularly noted.

Paragraph 6 of the Preamble provides that the refusal of employes to cross a picket line where a strike sanction has been issued by International Typographical Union does not constitute breach of contract, and shall not affect employes’ accrued benefits and rights (except the employe would not be paid for time lost as a result of his refusal to cross a picket line).

Paragraph 8 of the Preamble provides: “All wages, vacation credits and severance pay credits shall be considered as an earned equity and shall have prior claim in the event of merger, permanent suspension or liquidation. The cash equivalent of any such earned equity shall be paid immediately upon any employe’s severance of employment as a result of such merger, permanent suspension or liquidation.”

Paragraph 7, Article IV states in dollars and cents what the “wages of all journeymen” shall be, on an hourly, daily and weekly basis.

On February 21, 1959, at about 2:30 a. m., a strike was begun by St. Louis Newspaper Guild, which was the bargaining representative of Globe-Democrat employees in editorial, business and maintenance classifications (not the bargaining representative of plaintiffs). A picket line was erected around the premises of Globe-Democrat from that time to the date of the settlement of the strike, May 27, 1959.

Plaintiffs refused to cross the picket line of the Guild, and none of the plaintiffs reported to Globe-Democrat for work from the time the picket line was put up.

All of the plaintiffs took employment elsewhere during the period between February 21 and June 1, 1959, when publication of Globe-Democrat was resumed following settlement of the Guild strike.

After February 27, 1959 the Mailers’ Union “froze” the “priority board” at Post-Dispatch and members of the Mailers’ Union taking employment at Post-Dispatch remained in the capacity of “extras” (not regular situation holders) and acquired no priority standing until some time after June 1, 1959. Their wage rates and conditions of employment at Post-Dispatch continued as set forth in the collective bargaining contract described, above.

On February 27, 1959, the corporations which publish Globe-Democrat and Post-Dispatch entered into a contract by which Globe-Democrat sold its principal physical properties, subject to a temporary leaseback of business and editorial quarters, to Pulitzer Publishing Company, publisher of St. Louis Post-Dispatch, and by which Globe-Democrat was to be printed for this defendant by Pulitzer following the settlement of the strike. Pursuant to the contract Globe-Democrat executed a deed conveying to Pulitzer the building in which it had conducted its business and accounting offices, and a bill of sale to the bulk of its mechanical equipment, presses and machinery, including all of the equipment used by plaintiffs in their normal employment with Globe-Democrat. On February 27, 1959 the president and publisher of Globe-Democrat notified the representatives of all of the mechanical crafts, including plaintiffs’ representatives, and mailed a letter to all employees, in part as follows:

“To effect greater economy and efficiency in mechanical operation, The Globe-Democrat today entered into an agreement with the St. Louis Post-Dispatch under which The Globe-Democrat will be printed by the Post-Dispatch, when and if the Guild strike is settled.
“The sale is of the physical property only. The editorial, advertising, circulation and business departments of the two newspapers will he entirely separate. The Globe-Democrat will continue as a completely independent newspaper in every sense of the word.
“The consolidation of mechanical operations between competing newspapers finds great precedent in many cities throughout America, * * * as the mechanical costs of publishing a daily newspaper continue to rise. * * *.
“This move is made necessary because of the demands of the St. Louis Newspaper Guild. * * *.
“Members of the mechanical unions will be employed on a priority basis in the consolidated mechanical operation. If they all cannot be employed, the dismissal provisions of the current mechanical contracts will apply. * *

Throughout the period of the strike Globe-Democrat maintained the status of plaintiffs under the Blue Cross-Blue Shield program and group life insurance program.

In the opinion of the business manager and publisher of Globe-Democrat it would have been possible, notwithstanding the strike, to have prepared for printing and to have published Globe-Democrat during the period February 21-27, 1959, using supervisory personnel not on strike for the production of news content and advertising copy, if enough of the employees, members of the mechanical crafts, had been willing to cross the picket line to do the necessary mechanical work, and after February 27, 1959 it would have been possible to have rented mechanical equipment at some other print shop in the St. Louis area and to have printed a much curtailed and limited edition of the paper, had enough members of the mechanical craft employees of Globe-Democrat been willing to do the mechanical work under such circumstances. Globe-Democrat would have published such a newspaper during the strike if it had been reasonably possible to do so. Efforts were made by the business manager of the newspaper to persuade certain of the unions to return their members to work during this period and as late as May, 1959, but since none of the employees would return to work, no concerted effort was made to rent such equipment, and none was rented.

At a hearing before the Unemployment Compensation Commission on May 18, 1959 the business manager of Globe-Democrat testified that the employer-employee relationship of the Mailers’ Union members and Globe-Democrat in effect before February 21, 1959 had continued, without change, and that none of the employees had been suspended, laid off, or terminated since that date; that their job status and work rights had not been prejudiced; that there had been no violence or unlawful conduct, or any other basis for discharge; that none of them or their union representatives had notified Globe-Democrat that they had taken any steps to terminate the employer-employee relationship that existed prior to February 21, 1959.

On June 25, 1959 (following a hiatus of fourteen days caused by a strike of members of the Stereotypers’ Union against Post-Dispatch) most of the plaintiffs became “situation holders” at Post-Dispatch under the same contract under which they had previously worked for Globe-Democrat. Those who did not obtain such positions could have done so if they had so wished.

At various dates between May 29 ánd August 29, 1959 Globe-Democrat received letters from counsel for each of plaintiffs making demand for payment of wages as provided by § 290.110, and letter of dismissal as provided by § 290.140, V.A.M.S. Each such letter was answered by letter from Globe-Democrat stating that the addressee was employed as a mailer from the date he entered the employ until February 21, 1959 “when you failed to report to work. You have not reported for work since, and we understand you have taken employment at the Post-Dispatch. The right to benefits of severance pay and vacation pay, which you assert, are the subject of a pending arbitration with your union under Article III of the last current contract.”

The data on each employee showing the amounts of the severance pay, vacation pay and penalty (60 days wages) due, if entitled to recover such items, was agreed upon.

On this appeal plaintiffs make three points.

Plaintiffs’ first point raises the question whether “the consolidation of Respondents mechanical operations’‘ comes within the meaning of paragraph 2, Article XI, supra.

The trial court ruled that the language of paragraph 2 was unambiguous, clear and concise; that the proof showed no consolidation, i. e., no new corporation springing into existence to assume the liabilities of former corporations dissolved and ceasing to exist; that what happened was a “reduction of force by contracting out the mechanical end of the business,” and that these facts were not subject to the strained construction that they constituted a “consolidation.”

We restate the pertinent portion of paragraph 2: “In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by this contract, all employes who lose employment thereby shall receive severance pay as follows : * *

The word “newspaper” obviously refers to the publishing company, and not to the publication. Plaintiffs seem to concede this by the use of the phraseology “consolidated with another publishing company” in paragraph 4 of their petition.

We are here concerned only with the word “consolidation” as used in paragraph 2, supra, for in the lower court plaintiffs frankly admitted that there had been no merger or permanent suspension of publication.

Plaintiffs contend that the consolidation of the mechanical operations of Globe-Democrat with those of Pulitzer Publishing Company, publisher of the Post-Dispatch, was such a “consolidation” and otherwise came within the coverage of the entire provision, when the contract as a whole is properly construed; that the words are not clear and unambiguous, as the trial court decided, but require construction. They say the court improperly relied upon abstract definitions to reach its result and failed to consider and apply the following rules: that the whole subject matter must be considered from end to end and from corner to corner as well as all terms of the contract, for one clause may modify, limit or illuminate the other; that the intention of the parties must be gathered from a consideration of all of the provisions; that greater regard is to be had to the clear intention of the parties than to any particular words they may have used in attempting to express that intent; that in ascertaining that intent the court should consider the relationship of the parties, the subject matter of the contract, the usages of the business, the surrounding facts and circumstances attending the execution of the contract and the apparent purpose which the parties were undertaking to accomplish. Applying these principles, for which plaintiffs cite numerous Missouri cases, plaintiffs contend this is not a contract between corporations with corporate ownership and control as its subject matter, but a collective bargaining agreement with an unincorporated association of employees the obvious purpose of which is to protect the employee against sudden loss of employment brought about by any business maneuver or manipulations it might undertake during the term of the agreement; that the obvious intention was to provide severance pay under any circumstances which might cause severance of the employer-employee relation by impact of forces beyond his control. Plaintiffs say “It is patently impossible to anticipate and provide for, much less classify and describe, every situation that can arise in industrial management of a large corporation * * *. It is obvious from the language used both in the subject provision and in the related provision found in Paragraph (8), page 3, of the Preamble, that the parties were here attempting to cover every situation which might arise. The failure in an attempt to accomplish that which is virtually impossible does not alter the fact of the existence of an obvious intention to do so. * * * [H]ad the parties contemplated such a maneuver at the time the contract was executed, it would have been expressly provided for in the appropriate clause. * * * Such an obvious omission '[to provide for a situation wherein all the jobs of a department are lost due to consolidation of that department with the like department of another corporation] in a contract may be supplied by implication. * ⅜ * [T]he parties intended to be controlled by the thought expressed rather than by the words employed to express it.” Plaintiffs say that a consideration of Preamble, Paragraph 8, and of Paragraph (1) of Article XI, assists in the interpretation of Article XI, paragraph 2.

We are of the opinion that the language of paragraph 2 relating to “consolidation” is clear and unambiguous and capable of being enforced and given effect without resort to judicial construction to determine the intention of the parties; that paragraph 2 contemplates three possible, specifically defined and delimited situations in which Globe-Democrat Publishing Company, a corporation, might go out of business as the publisher of a newspaper; that the word “consolidation” refers to consolidation of corporations, not to consolidation of the mechanical operations or of any department or partial function of Globe-Democrat; that no consolidation within the plain meaning of paragraph 2 was shown by the evidence to have occurred; that the facts do not fit any of the three situations contemplated, and therefore plaintiffs’ rights to severance pay under the contract have not been established. Where the issue has been so raised as to call for judicial construction of the language of paragraph 2 the same result is reached. Ackerman v. Globe-Democrat Publishing Co. (St. Louis), Mo., 368 S.W.2d 469; Allen v. Globe-Democrat Publishing Co. (St. Louis), Mo., 368 S.W.2d 460. No considerations advanced here invalidate the conclusions reached in those cases.

The sum and substance of plaintiffs’ argument is that although the drafters of the contract failed to provide for the contingency that actually happened, the omission was obvious, and this Court should add a new provision, by implication, providing for severance pay upon loss of employment under any circumstances which cause the severance of the employer-employee relation, as a result of forces beyond the employee’s control. This Court has no such power in this action. The courts cannot make contracts for litigants, Meyer v. Christopher, 176 Mo. 580, 594, 75 S.W. 750, 754, or rewrite contracts by judicial interpretation. Globe-Democrat Publishing Co. v. Industrial Commission, Mo.App., 301 S.W.2d 846, 851(2). This is not a suit to reform a contract, but an action to recover under the terms of a contract. Plaintiffs must prevail, if at all, upon the basis of the contractual provisions written into the contract. Our function is to determine what the parties intended by what they said, and we cannot be concerned with what they may have intended to say. Chater v. Carter, 238 U.S. 572, 584, 35 S.Ct. 859, 863, 59 L.Ed. 1462. Their intention must be gathered from the language used in the contract. Strauss v. J. C. Nichols Land Co., 327 Mo. 205, 211, 212, 37 S.W.2d 505, 508(2). That langauge fails to make provision for severance pay under the stipulated facts.

Plaintiffs’ second point—that “[t]he Employees ‘Lost Employment’ as a result of the consolidation of the mechanical operations of Respondent”—is not sufficient to raise any question for appellate review because it fails to state what actions or ruling of the court are claimed to be erroneous and why it is contended the court was wrong in any action or ruling. It is an abstract statement not shown to be related to any action or ruling of the court. It violates Supreme Court Rule 83.05(e).

Nevertheless we point out that even though plaintiffs lost employment as a result of the sale of the physical plant and printing equipment of Globe-Democrat and the execution of the printing contract with Post-Dispatch, proof of these facts would not entitle plaintiffs to severance pay, since such loss of employment was not included in any of the contingencies provided for in the contract: merger, consolidation or permanent suspension of publication. Only loss of employment “thereby” would have entitled plaintiffs to severance pay. Plaintiffs having admitted there was no merger or permanent suspension of publication, and this Court having found there was no consolidation, there was no contractual liability for severance pay on the basis of loss employment from any other cause.

Plaintiffs’ third point is that the trial court erred in its refusal to award appellants the penalty payments provided by § 290.110, V.A.M.S., for unlawful withholding of wages in violation of the statute, because vacation and severance pay are wages in fact and in law, under the contract, and under the statute.

Section 290.110 provides: “Whenever any corporation doing business in this state shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages of any such servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ; and such servant or employee may request in writing of his foreman or the keeper of his time to have the money due him, or a valid check therefor, sent to any station or office where'a regular agent is kept; and if the money aforesaid, or a valid check therefor, does not reach such station or office within seven days from the date it is so requested, then as a penalty for such nonpayment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid; provided, such wages shall not continue more than sixty days, unless an action therefor shall be commenced within that time.”

Since no severance pay was due, we confine ourselves to the question whether vacation pay was unlawfully withheld in violation of § 290.110. This section is penal in character, Durant v. Industrial Products Mfg. Co., 241 Mo.App. 266, 235 S.W.2d 574; Quinn v. T. M. Sayman Products Co., Mo.App., 296 S.W. 198, and is to be strictly construed.

Unpaid vacation pay under the collective bargaining contract did not constitute “unpaid wages * * * then earned at the contract rate,” within the meaning of § 290.110. Neither Article X, Vacations, nor any other provision of the contract, classifies pay for vacations as wages, expressly or by implication. On the contrary, other provisions clearly indicate that it was not within the contemplation of the parties that vacation pay be regarded as the equivalent of or included as a part of an employee’s wages. Wages and vacation credits are treated as separate and distinct in Paragraph 8 of the Preamble, wherein “All wages, vacation credits and severance pay” are referred to as an earned equity. In the separate Article IV, dealing specifically with the subject Wages and Hours, no reference is made to vacation pay but there is a definite provision that “the wages of all journeymen * * * shall be” a specified, certain number of dollars and cents, listed at day and night rates by the hour and at certain amounts in dollars and cents per day and per week. Overtime rates are prescribed at price and one half of the “regular hourly rate.” “All wages” are agreed to be paid weekly in cash or current fumds. “The wage rates” contained in that article are agreed to be minimum rates, and provision is made that “compensation shall be on a time basis.” We conclude from a reading of the entire contract that the parties differentiated between vacation pay and wage pay; that by agreement of the parties they are not one and the same; that the statutory words “unpaid wages * * * then earned at the contract rate” under this contract apply only to the wage rates prescribed in Article IV and have no application to vacation pay credits reserved therein; that “wages * * earned at the contract rate” under § 290.110 refer to the basic rate of pay, People v. Vetri, 309 N.Y. 401, 131 N.E.2d 568, 571, i. e., wage payments due and payable at regular intervals, Conlon-Moore Corporation v. Johnston, 23 Ill.2d 341, 178 N.E.2d 336, and have no reference to vacation credits calculated on the basis of priority, number of days worked during the preceding calendar year, and payable only once and in one sum.

Although for the purpose of giving priority to wage earners over other creditors under the Bankruptcy Act, § 64, sub. a, par. (2), 11 U.S.C.A. § 104, sub. a, par. (2), it has been held that vacation pay constitutes “wages” as that term is used in that Act, In re Public Ledger, Inc., 3 Cir., 161 F.2d 762; In re Wil-Low Cafeterias, Inc., 2 Cir., 111 F.2d 429, these are cases in which no penalty is involved, and their holdings may not be extended to cases involving a penal provision such as § 290.110. Furthermore, in the Public Ledger and Wil-Low Cafeterias cases it does not appear that the contract defined wages in the limited way “wages” are defined in the instant contract, or by implication excluded vacation pay from the definition of wages.

Finally, plaintiffs’ requests for payment under § 290.110 were not timely. While the time within which request for unpaid wages shall be made is not stated it is clear by necessary implication that the request must be made within a short time after discharge. One of the objects of the statute is to effect a quick payment to the wage earner of wages due and unpaid at time of discharge. By the proviso it is contemplated that unless actions for the prescribed penalty be commenced within sixty days from date of discharge or refusal to further employ, the penalty of continuing wages will not continue more than sixty days. While request for unpaid wages need not be made immediately after discharge, it must be made within a reasonable time. Every request in the instant case was made at least ninety days after date of discharge, and in some cases as much as one hundred eighty days thereafter. Having in mind the objects and purposes of the statute, and the sixty-day limitation on actions, we rule that ninety days is an unreasonable length of time within which to make request for unpaid wages under § 290.110 and therefore plaintiffs’ requests came too late.

The judgment should be affirmed, and it is so ordered.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

On Motion for Rehearing or to Transfer to Court En Banc.

PER CURIAM.

In their motion for rehearing or to transfer to the court en banc appellants contend, for the first time, that a federal question is involved, and that this case should be governed by the federal common law or federal substantive labor law, in the interest of industrial peace. The per curiam opinions this day filed in Ackerman v. Globe-Democrat Publishing Co., Mo., 368 S.W.2d 469, and Irwin v. Globe-Democrat Publishing Co., Mo., 368 S.W.2d 452, dispose of these contentions adversely to appellants.

Appellants further contend that our construction of the word “consolidation” contradicts the clear intention of the parties as expressed in the same clause of the contract. This constitutes mere reargument of one of the issues determined by the opinion, and under Supreme Court Rule 83.16, V.A.M.R. is to be disregarded.

The motion for rehearing or to transfer is overruled.