Brotherhood of Railroad Trainmen v. Barnhill

• Decision Date: 08 April 1926
• Docket Number: 6 Div. 634
• Citation: 214 Ala. 565,108 So. 456
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. BARNHILL.
• Court: Alabama Supreme Court

108 So. 456

214 Ala. 565

BROTHERHOOD OF RAILROAD TRAINMEN v. BARNHILL.

6 Div. 634

Supreme Court of Alabama

April 8, 1926

Rehearing Denied May 13, 1926

Appeal from Circuit Court, Jefferson County; R.V. Evans, Judge.

Action by T.L. Barnhill against the Brotherhood of Railroad Trainmen. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Altman & Taylor and Fred G. Koenig, all of Birmingham, for appellant.

Walter S. Smith, of Lineville, for appellee.

THOMAS J.

The trial was had on the common counts, and count 7, added by way of amendment. It is averted in the latter count that plaintiff was a member of defendant order, and that defendant contracted with plaintiff at the time he became a member, as such employee of said railway company "and as a striking member of said brotherhood to pay plaintiff strike benefits or strike pay" at the rate indicated, being, after the first year, "$100 per month" "so long as said strike should last;" that all strike benefits due plaintiff from March 5, 1921, until September 5, 1923, were paid. It is further averred in said count:

"Plaintiff avers that he has continued to strike as one called out on said strike from to wit, March 5, 1921, until the present time, and he is still out on said strike, and he avers that said strike has not yet been officially terminated by defendant, and plaintiff avers that defendant has breached said contract in that defendant has failed or refused to pay plaintiff strike benefits or strike pay at the rate of $100 per month from September 5, 1923, to July 5, 1924, although plaintiff has fully performed his part of said contract, and is still ready, able, and willing to perform same; hence this suit."

The sustaining of demurrers to pleas hereafter to be indicated is assigned as error.

Defendant filed to said counts, separately and severally, pleas of the general issue and special pleas to which demurrers were overruled--plea 1, the general issue, and 2 and 4 setting up the rules of the order as to strike benefits. Pleas 2 and 4 being withdrawn, the trial was upon said counts and special count 7, to which were interposed the pleas of the general issue.

A prima facie case was made out by the testimony of the plaintiff who testified that from September 5, 1923, until July 5 1924, he knew of no position open to him as a striking member and as foreman or switch engine foreman, either in Alabama or Georgia. Plaintiff further testified that he made effort and failed to get work in the spring of 1923 in Birmingham. In response to the question whether or not he knew of any job witness could get between September 5, 1923, and July, 1924 he said that during that time he "made no effort to get any work" himself.

The trial court permitted defendant to show that plaintiff was engaged in agricultural pursuits during the period for which he claims strike benefits, and to show by Hunter, Meeks, Wade, and Bruce that plaintiff could have obtained other employment in Alabama, Georgia, or other states.

The plaintiff offered in evidence the following resolution, which the defendant's witness Bruce testified was passed by the Triennial Convention at Toronto, Canada:

"Be it further resolved that the president and the board of trustees be authorized and instructed by this convention to pay the members of the Brotherhood on strike on the Atlantic, Birmingham & Atlantic Railway, the Missouri & North Arkansas Railway, and the Dominion Iron & Steel Company, and the Nova Scotia Steel & Coal Company's properties, $100 per month for the duration of said strikes and made retroactive to January 1, 1922."

Thereupon the said witness Bruce testified upon redirect examination:

"We have a bureau of employment for members of the Brotherhood of Railroad Trainmen. Under our arrangements with the railroads it is my business in that bureau to get employment for the members. That is what my bureau does. Oh, yes; the members sometimes get jobs without any assistance. There was no trouble in 1923 and 1924 to get jobs. The bureau functions pretty generally all over the country."

The bill of exceptions then recites:

"On recross-examination, the said witness testified, in substance, as follows:

" 'My bureau is not provided for by the constitution and general rules of the Brotherhood of Railroad Trainmen. We operate all over the country, in so far as we possibly can. We operate in Alabama and Georgia. We are a part of the brotherhood's arrangement or institution. The bureau is not independent of the brotherhood.

"Q. There is no provision in the constitution for it, is there? A. I don't care; we are a part of it. There is a lot in the by-laws for a lot of things the brotherhood does, Mr. Smith. The bureau is not mentioned in the rules. There is no such provision.' "

Defendant had theretofore offered in evidence the letter of June 27, 1923, which letter has excluded upon plaintiff's objection, and the following circular:

"Manchester, Ga., Oct. 1, 1923.

"All Members and Others on Strike Trainmen's Pay Roll--Dear Sirs and Brothers: Acting on the instructions of the president of the Grand Lodges, the general committees convened at Grand Lodge headquarters, Thursday and Friday September 27th and 28th, for the purpose of meeting the board of trustees and to take action toward terminating the legal strike on the A.B. & A. property, which was called March 5, 1921.

"After going into the situation thoroughly with the board of trustees and discussing every angle of the case, the following understanding was agreed upon and is herein quoted for the information of all concerned:

" 'The undersigned met at Grand Lodge Headquarters at 9:30 a.m., September 27, 1923. In accordance with General Rule 10, p. 73, lines 45 to 54, reading: "The president and general grievance committee of board of adjustment have the authority to terminate a strike, but, in the event of a difference of opinion, and upon application of either party, it shall be the duty of the board of trustees immediately to meet with the president and general grievance committee or board of adjustment and decide the question, and the decision of the board of trustees shall be final and binding."

" 'This strike became effective March 5, 1921, and has been in effect two years and seven months. There were originally 116 members, 11 nonmembers, and 45 negroes in the service represented by our brotherhood, making a total of 172 men on our first pay roll. This number has been reduced to 65 members as of September 5, 1923, and the strike has cost our brotherhood $361,444.55 up to date.

" 'There were 14 organizations who participated in this strike originally, a majority of whom have either voted to declare the strike off or have not paid strike benefits to their membership, and who have, in effect, virtually ceased to prosecute the strike. The only organizations that have recently paid strike benefits are the four transportation organizations and the Order of Railroad Telegraphers. The files of the president's office indicate that the latter organization has decided to discontinue paying strike benefits to its membership as of September 30, 1923, also to discontinue the disbursement of any funds to further prosecute the strike. The files also indicate that the B. of L.F. & E. of board of directors has voted to terminate the strike jointly with the other organizations. The chief executive of the B. of L.E. will in the near future place the matter before his advisory board. President Shappard of the O.R.C. has advised the undersigned that he has authority, and it is his intention, to discontinue paying strike benefits as of September 30, 1923, but that he is agreeable to continuing the strike.

" 'The general committee stated to the board of trustees that the members and others of our class carried on our pay rolls have been advised by letter and in person by the committee on two different occasions that work could be secured by the striking members of this road by applying to our Chicago employment bureau and at other points, and many of them have obtained other gainful employment; therefore their names should no longer be carried on the pay rolls as striking members.

" 'The following named members, on account of temporary physical disability, have practically no means of support, and, because of their disability, have not been able to obtain other employment, and it was therefore agreed that they should be continued on the pay roll until otherwise decided: D.Y. Millican, of Fitzgerald; O.C. Tyre, of Fitzgerald; A.L. Greene, of Manchester; H.L. Cook of Manchester (has filed benevolent claim); F. Smith, of Atlanta.

" 'In addition to the above-mentioned disabled members, it is agreed that the third committee men named shall be carried on the pay roll; that is, Brother Hunter, representing the men at Manchester, Brother Meeks, at Fitzgerald, and Brother Wade, at Atlanta, for the purpose of further prosecuting the strike as best they can. It is further agreed that the Grand Lodge shall bear reasonable expenses of the committeemen, such as typewriting, telegraphing, stationery, and postage. It is also understood that the Grand Lodge shall bear the traveling expenses of the committeemen en route to Cleveland and return; that is, railroad and pullman fare, and hotel bill, but not including any salary, upon their furnishing proper receipts, as provided for by our laws.

" 'It is the decision of the board of trustees that the interests of the brotherhood will be conserved by continuing the strike in effect for the time being under the foregoing conditions, and we trust that it will meet with your approval.

" '[Signed by board of trustees].

" 'Fraternally yours,

" '[Signed]

E.J....