Beatty v. Chicago, B. & Q. R. Co.

• Decision Date: 10 December 1935
• Docket Number: 1915
• Parties: BEATTY v. CHICAGO, B. & Q. R. CO
• Court: Wyoming Supreme Court

52 P.2d 404

49 Wyo. 22

BEATTY v. CHICAGO, B. & Q. R. CO

No. 1915

Supreme Court of Wyoming

December 10, 1935

APPEAL from the District Court, Laramie County; C. O. BROWN, Judge.

Action by Frank M. Beatty against the Chicago, Burlington & Quincy Railroad Company. From the judgment, the plaintiff appeals.

Affirmed.

For the appellant, the cause was submitted upon the brief of John J Hancock, of Casper, without oral argument.

Defendant below, appellee here, moved for judgment on the pleadings. The fourth ground of said motion was that the action for a declaratory judgment deprived defendant of its right to remove the cause to the Federal Court, but this ground was not argued in the lower court. The fifth ground was based on a non-joinder of necessary parties, which is without merit. Holly Sugar Company v. Fritzler, 42 Wyo. 445; 89-2402, 2411, R. S.; Ziegler v. Pickett, (Wyo.) 25 P.2d 391; Oldham v. Moodie, 270 P. 688; Neubeck v. McDonald, 220 N.Y.S. 761, 762. Rule No. 30 of Contract between defendant Railroad Telegraphers' Union. The denial of plaintiff's promotion was first based on alleged defective eyesight. This was abandoned and defendant's physician set up a ground of excessive blood pressure, which was later disproven. There was no ground for plaintiff's removal at all. The action is not brought for damages for the violation of the contract. Plaintiff seeks a declaratory judgment as to his rights under the contract. There was no question of jurisdiction raised, since the court rendered a judgment in favor of defendant and exercised jurisdiction over the action. It is unnecessary that the controversy be terminated. 12 A. L. R. 75, 80, 213 P. 495. It was urged below that plaintiff had a remedy in a court of law, but a court of law would have no power to interpret the contract without allowing consequential damages. 71 A. L. R 1417. This court held in the Holly Sugar Company case, that the declaratory judgment statute was a long step taken to obliterate the line which has heretofore separated law from equity. According to this theory, the point urged below that an action for a declaratory judgment would not lie when another remedy is available, seems to lack support. We feel that this action is one that should be passed upon under the declaratory judgment statutes. The question of the rights of the plaintiff may extend beyond the mere question of reinstatement under the contract; it may extend to the point of determining whether or not he is entitled to a pension under the Railroad Act recently passed by Congress.

For the respondent, there was a brief by R. H. Nichols and S. J Lewis, of Casper, and Wilfred O'Leary and W. O. Wilson, of Cheyenne, and oral arguments by Messrs. Nichols and Wilson.

All persons should be made parties who have or claim an interest which would be affected by the declaration. 89-2411, R. S., Holly Sugar Company v. Fritzler, 42 Wyo. 463. Continental Mutual Insurance Company v. Cochrane, (Colo.) 4 P.2d 303; De Charette v. Trust Company, (Ky.) 50 A. L. R. 34; Faulkner v. City, (N. H.) 155 A. 95; Ladner v. Siegel, (Penn.) 144 A. 274; Joplin Co. v. County, (Mo.) 38 S.W.2d 1068; Sadler v. Mitchell, (Tenn.) 36 S.W.2d 891. All telegraphers on the Casper division were necessary parties and should have been joined as plaintiffs. The purpose and scope of the declaratory judgment act was covered quite fully in Holly Sugar Company v. Fritzler, supra. Jurisdiction will be exercised under said act with caution. Ackerman v. Union & New Haven Trust Company, (Conn.) 100 A. 22. A contract may be construed under the act before or after a breach. 89-2403, R. S. Issues of fact may be tried by a jury. 89-2409, R. S. The court will not act wherein there is a dispute as to the facts. Ladner v. Siegel, supra. Hamilton Corporation v. Corum, (Calif.) 21 P. 413. The act is remedial and should be liberally construed. 89-2413, R. S. In the present case no relief whatever could be afforded by the judgment of the court. The act was not intended to abolish other remedies. Its declaratory purpose is to effectuate and make uniform the law of those states which enacted it, and to harmonize as far as possible with federal laws and regulations on the subject. 89-2415, R. S. The federal courts have declined to assume jurisdiction. Muskrat v. U.S. 219 U.S. 346; Liberty Company v. Grannis, 273 U.S. 70 and cases cited. Willing v. Association, 277 U.S. 274; Arizona v. California, 75 L.Ed. 1154; N.C. & St. L. Ry. v. Wallace, 77 L.Ed. 734; Alabama v. Arizona, 78 L.Ed. 798; Pierce v. Society of Sisters, 268 U.S. 510. Parties should not be prevented from recourse to federal courts when jurisdictional facts are present. Harr v. Corporation, 1 F.Supp. 294. In this action defendant is deprived of the right of removal. None of the Wyoming decisions on the subject thus far support plaintiff's contention. Simpkin v. Rock Springs, 33 Wyo. 166; Holly Sugar Company v. Fritzler, supra. Some useful purpose must be accomplished by the suit. Holly Sugar Company v. Fritzler, supra; Bond v. Attorney General, 45 Wyo. 133; Ziegler v. Pickett, 46 Wyo. 283; Arnold v. Bond, (Wyo.) 34 P.2d 28. A contract for an indefinite period is terminable at the will of either the employer or the employee. 39 C. J. 71; Mullaney v. Goss, (Vt.) 122 A. 430; Hanger Inc. v. Fitzsimmons, 273 F. 348; Ashley Company v. Cunningham, (Ark.) 196 S.W. 798; Kansas Pacific Company v. Roberson, 3 Colo. 142. Indefinite employment is terminable at the will of either party. Peacock v. Company, (Ala.) 130 So. 410. Members of labor unions have the right to say for whom and on what terms they will work. Local Union 313 vs. Stathakis, (Ark.) 6 A. L. R. 894; In re Jones, 78 Colo. 80; Louisville Company v. Offutt, (Ky.) 36 S.W. 181; Boyer v. Company, 124 F. 246. Courts will not compel a man to serve another against his will, nor compel an employer to retain one in his employ whom he does not want. Courts will not compel the specific performance of contracts for personal services. Adams v. Murphy, 165 F. 304; Roller v. Weigle, 261 F. 250; Loesch v. Insurance Company, 218 N.Y.S. 412; Chambers v. Davis, 22 A. L. R. 114; Mosshamer v. R. R. Co., (Mich.) 191 N.W. 210; Piercy v. Ry. Company, 248 S.W. 1042. If plaintiff had any remedy, it would be an action for damages, but he does not even have that because he has no contract on which to base an action for damages. Dunn v. Hereford, 1 Wyo. 206. The petition does not state a cause of action. Hudson v. Ry. Company, (Ky.) 154 S.W. 47; Burnetta v. Company, (Mo.) 79 S.W. 136; Kessell v. Ry. Company, (Wash.) 51 F.2d 304; L. & N. R. R. Company v. Harvey, (Ky.) 34 S.W. 1069. A suspension for an indefinite time amounts to dismissal. Young v. Ry. Company, 36 C. R. C. 1. Plaintiff has no basis for his action. Coal Company v. Ault, (Tenn.) 9 S.W.2d 692; Galveston Ry. Company v. Eubanks, (Tex.) 42 S.W.2d 475. The purpose of the declaratory judgment act is to afford relief from uncertainty in cases of actual controversy, Welfare Company v. Stowell, (Calif.) 22 P.2d 529, and to declare rights rather than to execute them, Insurance Company v. Richmond, (Conn.) 139 A. 702; Sheldon v. Powell, (Fla.) 128 So. 258, and to guide future conduct. State v. Grove, 19 A. L. R. 1116; Jefferson County v. Chilton, (Ky.) 33 S.W. 601; Stewart v. Harten, (Nebr.) 249 N.W. 552; Faulkner v. City, (N. H.) 155 A. 195; Green v. Company, (N. C.) 167 S.E. 38; Girard Trust Company v. Frumblay, (Penn.) 140 A. 506; Miller v. Miller, (Tenn.) 261 S.W. 965. The act is essentially one of construction. Newsum v. Realty Company, (Tenn.) 278 S.W. 56. Where there exists another remedy, the act is not available. In re McGirl's Estate, (Calif.) 13 P.2d 746; Sheldon v. Powell, supra. The act is not a substitute for common law actions. Miller v. Side, (Mich.) 242 N.W. 823. The act was designed to supply deficiencies in procedure. Bauman v. Bauman, 226 N.Y.S. 576; Leafgreen v. La Bar, (Penn.) 142 A. 224; Taylor v. Haverford Township, (Penn.) 149 A. 639.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action for a declaratory judgment. The petition, which is lengthy, alleges, in substance, the following facts: The defendant is a railroad corporation organized and existing under the laws of the State of Illinois. The Order of Railroad Telegraphers, a trade union, is a voluntary association, comprised of the railroad employees, including agent telegraphers. The object of the union is to negotiate by collective bargaining, for and on behalf of its members, and it, on October 1, 1927, for and on behalf of plaintiff and others, entered into a contract with the railroad company covering conditions, rates of pay, prevention of favoritism in assignment of work, promotion, transfer, demotion or discharge without sufficient cause, and to provide for mutual insurance. Rules were made and agreed on. These, among other things, provided that when a vacancy should occur, the regular force should have the right to fill it according to seniority "where qualifications are sufficient," and that if the senior applicant should not be assigned to the position, the reason therefor should be given in writing by the superintendent within ten days. Plaintiff is a member of such union, and has been since the time that he became the employee of defendant company on December 4, 1909. On November 17, 1928, he, still employed by defendant, was stationed at Glendo, Wyoming, as third trick operator, at the compensation of 64 cents per hour, and up to that time he had at all times performed his work in an efficient manner and to the satisfaction of defendant. On the last mentioned date, he received from the defendant, through G. Eckhardt, chief despatcher, a copy of an order, according to rule 22, that bids would be...