Bradford v. Kurn

• Decision Date: 02 December 1940
• Citation: Bradford v. Kurn, 235 Mo.App. 1282, 146 S.W.2d 644 (Kan. App. 1940)
• Parties: DAVID P. BRADFORD, RESPONDENT, v. J. M. KURN and JOHN G. LONSDALE, TRUSTEES IN BANKRUPTCY OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS
• Court: Kansas Court of Appeals

146 S.W.2d 644

235 Mo.App. 1282

DAVID P. BRADFORD, RESPONDENT, v. J. M. KURN and JOHN G. LONSDALE, TRUSTEES IN BANKRUPTCY OF THE ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Kansas City

December 2, 1940

Appeal from Johnson Circuit Court.--Hon. Leslie A. Bruce, Judge.

AFFIRMED.

Judgment affirmed.

Jerome Walsh, Thomas R. Lawler and Roy W. Rucker for respondent.

(1) A railroad switchman wrongfully discharged by a railroad is entitled to recover from the trustee of such railroad under the terms of his contract entered into originally with the railroad where the trustees had operated under the contract even though they had never formally accepted the same. Ward v. Kurn, 132 S.W.2d 245. (2) The trial court may in its discretion award a new trial on the ground that the verdict was against the weight of the evidence and this court will not disturb the order. R. S. Mo. 1929, sec. 1001; Davis v. Johnson, 332 Mo. 417, 421.

E. G Nahler, M. J. Henderson, Thos. E. Deacy and Henderson, Deacy Henderson & Swofford for appellants.

(1) Plaintiff failed to make a jury case, and the verdict for defendant was proper. Plaintiff was not entitled to a new trial and the court erred in sustaining plaintiff's motion. There was not sufficient substantial evidence to sustain a verdict for the plaintiff. A demurrer should have been sustained and the trial court's action in granting a new trial to plaintiff on the ground that the verdict was against the weight of the evidence was arbitrary. Castorina v. Herrmann, 104 S.W.2d 297; Shroder v. Barron-Dady Motor Co., 111 S.W.2d 66. (2) Plaintiff was not entitled to recover unless he established that he had an existing contract of employment with appellants at the time his cause of action was instituted. The Yardmen's contract being the contract between the Railway Company and the Brotherhood could not be enforced by the plaintiff unless he had a valid, existing contract of employment between plaintiff and appellants, or unless plaintiff established that appellants after their appointment as Trustees in Bankruptcy had ratified, affirmed, or adopted a preexisting contract of employment between plaintiff and appellants. McCoy v. St. Joseph Belt Railway Co., 77 S.W.2d 175; Yazoo, etc., R. Co. v. Webb, 64 F.2d 902. (3) Appellants, being Trustees in Bankruptcy, were in nowise bound by the existing outstanding contracts of the bankrupt railway company and were not bound by any existing contract of employment between respondent, and the railway company, or the Yardmen's Schedule or contract between the Railway Company and the Brotherhood, unless appellants adopted or ratified such contracts under the authority of the United States District Court which appointed them. In re Neff, 157 F. Rep. 57; Mandeville v. Pooler, 198 A. 235; In re Catts, 33 F.2d 963, 46 A. L. R. 1171; Pacific Western Oil Co. v. McDuffie, 69 F.2d 208; Miller-Franklin & Co. v. Gentry, 79 S.W.2d 470. (4) The action of the trial court in sustaining the motion for a new trial under the peculiar facts in the case at bar was in excess of the court's discretion and, therefore, arbitrary.

SPERRY, C. Campbell, C., concurs.

OPINION

SPERRY, C.

--Plaintiff, David P. Bradford, sued defendants, J. M. Kurn and John G. Lonsdale, Trustees in Bankruptcy of the St. Louis-San-Francisco Railway Company, a corporation. Trial to a jury resulted in judgment for defendants, whereupon plaintiff moved for new trial. The motion was sustained, the court assigning as reason therefor that the verdict was against the weight of the evidence. From the order granting new trial defendants have appealed.

Facts about which there is no dispute established that plaintiff was employed as a yardman by St. Louis-San Francisco Railway Company on September 16, 1929; that there was then in force a written working agreement between the Railway Company and the Brotherhood of Railway Trainmen, which contract became a part of plaintiff's contract of employment with said Railway Company; that plaintiff worked under the terms of said contract from the date of his employment until November 17, 1930, when he was notified that the "extra board," of which plaintiff was one, was being cut due to decreased business, and he was given a service letter containing the following:

"Reason for leaving service--reduction in force," and that he was never thereafter recalled to service.

Pertinent sections of the "working agreement" above mentioned are as follows:

. . . .

"(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 runs 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."

. . . .

"ARTICLE 17.

"(a) When objections or charges are made against any yard man, they shall be put in writing and should convey a full statement of the objections or charges.

"(b) Yard men will not be discharged, suspended or given demerit marks without just and sufficient cause. Before inflicting punishment in form of dismissal, suspension or asserting demerit marks, the proper official will hold investigation. They may be present at the investigation together with a disinterested employee of their choice. All decisions will be rendered within five days after investigation is held. In case of dismissal, suspension or demerit marks, if any yard man thinks sentence unjust, he shall have the right within ten days to refer his case by written statement to his Superintendent. Within ten days of receipt of this notice, the case shall have a thorough investigation by a proper officer of the Company, at which investigation he may be present if he so desires, and also be represented by any disinterested employe of his choice. In case he is dissatisfied with result of investigation, he shall have the right of appeal to general officers. In case punishment, in the form of dismissal or suspension is inflicted and subsequently found to be unjust, he shall be reinstated and paid at regular rates for all time lost." . . .

It is undisputed that the Railway Company went into receivership and defendants were appointed as temporary trustees of the property on September 26, 1933, and were appointed permanent trustees on October 28, 1933, and are now and have ever since been in charge of the property and its operation under the orders of the United States District Court for the Eastern District of Missouri.

The following stipulation was offered in evidence, and was admitted without objection:

"STIPULATION.

"It is hereby stipulated and agreed by and between the parties hereto that the St. Louis-San Francisco Railway Company entered into a contract with the Brotherhood of Railway Trainmen upon November 1st, 1919; that thereafter the said contract was amended or revised, effective April 1st, 1924, and that said contract was in full force and effect at the time of the appointment of the receiver for said company in the United States District Court at St. Louis; that thereafter and on or about October 1st, 1933, James M. Kurn and John G. Lonsdale were appointed as trustees in Bankruptcy for said company, by said Federal Court; that said contract above referred to has neither been formally adopted nor rejected by the trustees, but as a matter of fact the trustees have operated under this contract since their appointment as trustees, became effective October 1st, 1933."

Evidence on behalf of plaintiff tended to prove that he was "senior," in the right of employment, to R. D Pierce, who was called to work by defendants on or about January 1, 1934; that he was senior to A. C. McLaughlin, who was called to work on or about January 1, 1934; that the seniority list of employees of the Railway Company, as it existed on November 17, 1930, established plaintiff's right to be recalled to service, if and when more...