Barry v. Detroit Terminal R. Co.

• Citation: 11 N.W.2d 867,307 Mich. 226
• Decision Date: 29 November 1943
• Docket Number: No. 72.,72.
• Parties: BARRY v. DETROIT TERMINAL R. CO.
• Court: Michigan Supreme Court

307 Mich. 226

11 N.W.2d 867

BARRY

v.DETROIT TERMINAL R. CO.

No. 72.

Supreme Court of Michigan.

Nov. 29, 1943.

Suit by Joseph H. Barry against Detroit Terminal Railroad Company for breach of an express contract. From an adverse judgment, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Wayne County; John V. Brennan, judge.

Before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

John J. Danhof, of Detroit (William A. Alfs and Russell T. Walker, both of Detroit, of counsel), for appellee.

BOYLES, Chief Justice.

Plaintiff sues to recover wages alleged to be due him from defendant, beginning December 1, 1934, for breach of contract to return him to employment as a switchman on defendant's railroad. The declaration alleges that plaintiff was employed by the defendant as a switchman in 1928, that a contract was entered into by the Switchmen's Union of North America on behalf of plaintiff and all other switchmen in defendant's employ, by which the defendant agreed that, in case of layoffs on account of reduction in power, the employees so laid off would be permitted to resume work in the order in which they were laid off (seniority in service). Plaintiff claims he was laid off from work December 15, 1925, that the defendant has failed to call him to return to work, that at various times the defendant has called other switchmen back to work who had been laid off subsequent to plaintiff, that the defendant ‘has violated and refused to recognize and to give force and effect to the seniority rights and preference to employment and recall to actual service guaranteed to him by such contract.’

The defendant pleaded as an affirmative defense, among others, that plaintiff's cause of action was barred by the statute of limitations. The case was tried before a jury, and at the conclusion of the proofs the defendant moved for a directed verdict on the ground (among others) that the proofs showed that the cause of action was barred by the Michigan statute of limitations. The court granted the motion, directed a verdict of no cause for action, and plaintiff appeals from the judgment entered on the verdict. In view of the conclusion we reach on the one issue referred to, it is not necessary to discuss the several other questions raised by appellant.

This suit is essentially one for breach of an express contract. At the time plaintiff was employed by the defendant as a switchman and was laid off, he was a member of the switchmen's union. The union had a contract with the defendant, for and on behalf of its members, one of the provisions (art. 17(b)) in which was as follows: ‘When switchmen are taken out of service on account of reducing in power, they will be permitted to resume service in the order in which they were taken out when the force is increased, provided they report for service within ten (10) days after being notified. Copy of recall notice to be furnished the local chairman.’

The plaintiff was not recalled by defendant, has not been reemployed. He claims that the defendant employed other switchmen whose seniority rights were junior to his own, that the defendant thereby breached its contract, and that he is entitled to $6.64 per day from December 1, 1934, to April 1, 1940, the same wages he was receiving when laid off.

Plaintiff's suit was started by filing declaration April 18, 1940. If his cause of action accrued more than six years prior to that date (subject to the exception hereinafter discussed), it is barred by 3 Comp.Laws 1929, § 13976, Stat.Ann. § 27.605. (Subsequent amendments have no bearing on the case at bar.) Uncontroverted testimony showed that plaintiff's cause of action for breach of contract accrued prior to April 18, 1934.

One Edward Wilding testified that he was a switchman working for the defendant, a member of the Switchmen's Union of North America, that in 1933 and 1934 he was a member of the grievance committee of the union lodge covering defendant's employees, and that early in January, 1934, he had a conversation-‘argued around quite a wile’-with Mr. Cohan, defendant's general manager, regarding the seniority of members. He testified: ‘The conversation I had with Mr. Cohan at that time regarding the seniority of the members of the union was there were certain men that was off the board that should be back on the board, and ones junior to them went in to work and they should have been taken off the board. I knew, as a member of the grievance committee of the switchmen's union, I knew at that time there were men whose seniority entitled them to jobs who were not working. I also knew there were men whose seniority was less than these men who were off, who were working. And that was the purpose of my visit, of my talk with Mr. Cohan, to discuss that problem. Now as a result, when I went up there, I explained to Mr. Cohan that that was the situation, and as a result of our conversation there was a suggestion made as to how to remedy, or what to do about the situation. Mr. Cohan suggested making an amendment. He suggested to us as members of the union we amend the contract so that men off duty, out of service, and off for a year, come back as new men.’

One William Jones testified that he was an employee of defendant as a switchman in 1933-1934, a member of the switchmen's union, chairman of the grievance committee in 1933-1934, that in January, 1934, he discussed with Mr. Cohan amending the contract relative to the calling back of men who were ‘off the board.’ The fair import of his testimony is that in January, 1934, many former employees who were entitled to seniority had not been called, while many others junior in seniority or without any seniority rights had been employed at that time, January, 1934.

Defendant's paymaster, in defendant's employment since 1931, testified from his payroll records, giving the names and dates of seniority of twenty or more of defendant's employees whose seniority rights were inferior to those claimed by plaintiff, that these men had been returned to defendant's payroll at various times during January, February and March, in the year 1934. If, as claimed by plaintiff, his contract gave him seniority rights over these men, their reemployment in January, February and March of 1934 was a breach of his contract. This breach of contract occurred more than six years prior to ...