Baron v. Kurn

• Decision Date: 28 July 1942
• Docket Number: 37785
• Citation: 164 S.W.2d 310,349 Mo. 1202
• Parties: F. L. Baron v. J. M. Kurn and John G. Lonsdale, Trustees of and for St. Louis-San Francisco Railway Company, a Corporation, Appellants
• Court: Missouri Supreme Court

164 S.W.2d 310

349 Mo. 1202

F. L. Baron v. J. M. Kurn and John G. Lonsdale, Trustees of and for St. Louis-San Francisco Railway Company, a Corporation, Appellants

No. 37785

Supreme Court of Missouri

July 28, 1942

Rehearing Denied September 8, 1942.

Appeal from Texas Circuit Court; Hon. William E. Barton Judge.

Reversed.

E G. Nahler and Ward & Reeves for appellants.

(1) If the plaintiff's employment may be said to be for the period of his natural life, his cause of action yet accrued and he could have sued for the entire damages for the breach more than five years before the institution of the present suit, and his cause of action is, therefore barred by the five-year Statute of Limitations. State ex rel. v. Kansas City, 217 Mo.App. 288; Producers Packing Co. v. Fisher, 221 Mo.App. 639; Harrington v. Ry. Co., 60 Mo.App. 223; Slabon v. St. Louis Car Co., 102 S.W.2d 939; Slabon v. St. Louis Car Co., 138 S.W.2d 673. (2) As shown by the plaintiff's petition and also by his oral evidence, this action is not for the payment of money or wages as set out in the Yardmen's Schedule, but is an action to recover future unearned wages for a breach of the contract and the action therefore does not come within the ten-year limitation period fixed by Section 1013 of the Revised Statutes of 1939, but the five-year Statute of Limitations, being Section 1014, Revised Statutes of 1939, applies. Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62; Parker-Washington Co. v. Dennison, 267 Mo. 199; Soursin v. Salorgne, 14 Mo.App. 486; Booge v. Railroad, 33 Mo. 212; Boland v. Glendale Quarry Co., 127 Mo. 520; Quint v. Kingsbury, 289 S.W. 667; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32. (3) Plaintiff's cause of action is barred by the five-year Statute of Limitations for the further reason that though the written contract may have fixed his rate of pay, yet when the suit is for a breach or breaking of the terms of the contract the measure of recovery for future unearned wages is not necessarily the contract price, since the servant may secure other employment and perhaps at better wages, and the matter of damages for the breach is for the determination of the jury under all the circumstances, including his earnings in other employment up to the date of the trial and probable future earnings in other employment thereafter during the whole term of the contract and his life expectancy if the contract be for life. Halsey v. Meinrath, 54 Mo.App. 335; Soursin v. Salorgne, 14 Mo.App. 486; Booge v. Railroad, 33 Mo. 212; Boland v. Glendale Quarry Co., 127 Mo. 520; Producers Packing Co. v. Fisher, 221 Mo.App. 639.

A. P. Stone, Jr., for respondent.

(1) In passing upon defendants' contention that their general and special demurrers should have been given, appellate court will accord to plaintiff benefit of all favorable evidence and all reasonable inferences deducible therefrom, and will disregard all contradictory or unfavorable evidence. Furthermore, appellate court is not concerned with weight of evidence or credibility of witnesses. Tharp v. Thompson, 139 S.W.2d 1116; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533; Wilhelm v. R. S. Buchanan Co., 131 S.W.2d 894; Hutchison v. Moerschel Products Co., 133 S.W.2d 701; Taylor v. Sesler, 113 S.W.2d 812; Phelps v. Montgomery Ward & Co., 231 Mo.App. 595, 107 S.W.2d 939; Aly v. Terminal Ry. Assn. of St. Louis, 119 S.W.2d 363. (2) Defendants had continuing duty to return plaintiff to service in order of his seniority; and, since plaintiff was not discharged, defendants' continuing failure to return plaintiff to work in order of his seniority resulted in repeated and continuing breaches of "yardmen's schedule" and gave rise to separate and distinct causes of action. Accordingly, plaintiff had right to sue for damages resulting from failure to return him to work during period from May 1, 1935, to April 15, 1939. McGee v. St. Joseph Belt Ry. Co., 110 S.W.2d 389; McGee v. St. Joseph Belt Ry. Co., 133 S.W.2d 675; Bradford v. Kurn, 146 S.W.2d 644. (a) Cases cited by defendants to their Points (1) (a), (2) and (3) are not in point, for all of them deal with proper measure of damages for wrongful discharge of employee or for total breach of contract. (3) Plaintiff's motion to strike portions of defendants' answer was properly sustained and defendants' Exhibit 4 was properly excluded for, in so ruling, trial court followed prior construction by this court of "yardmen's schedule," which is an unambiguous contract. Ward v. Kurn, 132 S.W.2d 245; McCrory v. Kurn, 101 S.W.2d 114. (a) Since "yardmen's schedule" is an unambiguous contract, its construction is for the court. Ward v. Kurn, 132 S.W.2d 245.

Thomas J. Cole, W. W. Graves and Jacob Brown, amici curiae.

(1) That plaintiff's cause of action accrued and was complete long before five years prior to the bringing of this action: 1 American Law Institute's Restatement of the Law of Contracts, sec. 258; McCoy v. St. Joseph Belt Ry. Co., 77 S.W.2d 175, 229 Mo.App. 506; Bisesi v. Farm & Home Savs. & L. Assn., 78 S.W.2d 871; Beard v. Citizen's Bank of Memphis, 37 S.W.2d 678; Allison v. Mo. P. & L. Co., 59 S.W.2d 771; 34 Am. Juris. 110, sec. 137. (2) That the five-year Statute of Limitations is applicable to the facts of this case and barred the action long prior to the filing of the petition herein. R. S. 1939, secs. 1013, 1014; Parker-Washington Co. v. Dennison, 183 S.W. 1041, 267 Mo. 199; Lively v. Tabor, 107 S.W.2d 62, 341 Mo. 352; 37 C. J. 748; Hume v. Miller Hatcheries, Inc., 51 S.W.2d 179; McCoy v. St. Joseph Belt Ry. Co., 77 S.W.2d 175, 229 Mo.App. 506; Reed v. Rd. Co., 95 S.W.2d 887; Lyons v. St. Joseph Belt Ry. Co., 84 S.W.2d 933; Hall v. Ry. Co., 28 S.W.2d 687, 224 Mo.App. 431; Ward v. Kurn, 132 S.W.2d 245, 234 Mo.App. 241; McGee v. Ry. Co., 133 S.W.2d 675.

Bohling, C. Westhues, C., concurs; Barrett, C., not sitting.

OPINION

BOHLING

The main contested issues presented for determination on this review, under the facts and circumstances involved, are stated to be (1st) whether plaintiff's cause of action is barred by our five-year Statute of Limitation; and (2nd) whether the cause of action sued on ever accrued to plaintiff under the expressed provisions of the contract pleaded. Other issues embrace the giving and refusing of certain instructions. On April 30, 1940, F. L. Baron sued J. M. Kurn and John G. Lonsdale, as trustees in bankruptcy of the St. Louis-San Francisco Railway Company, a corporation (hereinafter designated Railway), for $ 4,860.54 damages, allegedly accruing between May 1, 1935, and April 15, 1939, charging the Railway wrongfully failed to return plaintiff to work in accord with his seniority rights at the Railway's Springfield yards under a contract known as the "Yardmen's Schedule," effective as of November 1, 1919, and revised as of April 1, 1924, between said Railway and the Brotherhood of Railway Trainmen. Plaintiff recovered a judgment of $ 2,595. The case reaches us upon certification, following the dissent of one of the Judges of the Springfield Court of Appeals to the majority opinion affirming said judgment. [See Baron v. Kurn (Mo. App.), 153 S.W.2d 405.]

The Railway does not question the right of individual yardmen generally to enforce the provisions of the Yardsmen's Schedule, and the issues do not embrace any discussion of the theory or theories underlying such right. Courts of this and other states have advanced, among others, the reasoning that the employee may enforce the contract as a third party for whose benefit it was made. McCoy v. St. Joseph Belt Ry. Co., 229 Mo.App. 506, 514, 77 S.W.2d 175, 180[2, 3]; Hall v. St. Louis-S. F. Ry. Co., 224 Mo.App. 431, 435, 28 S.W.2d 687, 689[3]. Consult Annotations, 95 A. L. R. 10, 41; 81 A. L. R. 1271, 1302; 2 Williston on Contracts, p. 1099, Sec. 379A. If language found in Burnetta v. Marceline Coal Co. (Div. II, 1904), 180 Mo. 241, 250, 79 S.W. 136, 139, is to be construed that an employee may not acquire rights under a labor union contract with his employer independent of his individual contract of employment, we think it out of line with the trend of modern authority and should not be longer followed in that respect.

Plaintiff's rights are dependent upon two contracts. He was employed by the Railway on December 20, 1927, as a yardman, being classified as a "helper." This contract, fixing his status as an employee, so far as shown by the record was terminable at the pleasure of either party. The other contract, said Yardmen's Schedule, contains provisions relating to the wages, conditions of service, seniority rights, suspension, discharge, et cetera of yardmen in the Railway's employ. It was offered in evidence by plaintiff, who relies upon its provisions for a recovery, particularly Articles 10 and 17. We quote:

Article 10: ". . . [Sections "(a)" and "(b)" are deemed immaterial and are omitted.]

"(c) Reduction in force. When yard forces are reduced, the men involved will be displaced in the order of their seniority. When a vacancy occurs or new runs are created, the senior men will have choice of run or vacancy.

"(d) Yardmen laid off account reduction in force will be returned to service when forces are increased in order of their seniority, provided they return to actual service within thirty (30) days from the date their services are required, unless the management has good and sufficient cause for not returning them to service in line with their seniority, in which event the committee will be informed reasons therefor. This to apply to any Yardman laid off in force reduction subsequent to October 1, 1920." [We understand the revision of April 1, 1924, was the addition of Sec. (d) to said Article 10.]

Article 17: "(a) When objections or charges are made against any yardman, they shall...