Buster v. CHICAGO, M., ST. P. & PR CO., 10478.

• Decision Date: 19 March 1952
• Docket Number: No. 10478.,10478.
• Citation: 195 F.2d 73
• Parties: BUSTER v. CHICAGO, M., ST. P. & P. R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

195 F.2d 73 (1952)

BUSTER v. CHICAGO, M., ST. P. & P. R. CO.

No. 10478.

United States Court of Appeals, Seventh Circuit.

March 19, 1952.

James D. Moran, Ralph O. Winkenwerder, Raymond G. Lanctot, Chicago, Ill., for appellant.

Carson L. Taylor, William L. Hunter and Edwin O. Schiewe, Chicago, Ill., for appellee.

Before KERNER, FINNEGAN and SWAIM, Circuit Judges.

FINNEGAN, Circuit Judge.

This action was commenced in the Circuit Court of Cook County, Illinois, by John J. Buster, appellant herein, against the corporate defendant, Chicago, Milwaukee, St. Paul and Pacific Railroad Company, appellee, to recover damages in the sum of $5,000 arising out of his alleged wrongful discharge from his employment as a switchtender by the defendant-company. The agreement alleged to have been breached by plaintiff's discharge was between the Brotherhood of Railroad Trainmen, bargaining representative for plaintiff's union, and a General Manager's Committee of Railroads, including defendant's corporate predecessor, under the Railway Labor Act, 45 U.S.C.A. § 151 et seq. Because of diversity of citizenship the case, on petition of the defendant, was transferred to the United States District Court for the Northern District of Illinois, Eastern Division.

The transcript of removal was filed in the District Court on September 16, 1948. Thereafter, and on September 20, 1948, the corporate defendant filed its answer to the original complaint.

On April 3, 1950, plaintiff filed his supplemental complaint in which he represented that since the filing of his original complaint and up to April 3, 1950, he was ready, able and willing to return to the service of defendant as a switchman, but that defendant wrongfully declined to permit him to do so. That defendant, therefore, became liable to pay plaintiff the amount which his seniority rights would have entitled him to earn from August 2, 1948, the date of filing of the original complaint, up to April 3, 1950, the date of filing supplemental complaint, and from said latter date until he is reinstated and paid for all time lost. He alleges that defendant refuses to pay said sums and prays judgment against it for an additional Ten Thousand ($10,000) Dollars.

On April 17, 1950, the defendant filed its answer to the supplemental complaint.

The case came on for trial on March 15, 1951. As a result of pre-trial conferences and because of rulings on arguments, supported by briefs, made before that date, the trial court submitted to the jury then chosen only this single question:

Was the dismissal of the plaintiff, John J. Buster, by the defendant, Chicago, Milwaukee, St. Paul and Pacific Railroad Company on September 17, 1947, just?

In its verdict returned on March 19, 1951, the jury answered the single question submitted to it in the negative. Thereupon the court entered judgment in favor of the plaintiff and against the defendant-company for $13,106.28, being the amount earned by the person next in seniority to plaintiff from September 17, 1947, through March 15, 1951.

Thereafter, the matter came on for hearing on the following motions of the defendant:

1st — For a directed verdict at the conclusion of all the evidence, which was taken under advisement by the court;

2nd — For an order setting aside the jury's verdict and judgment entered thereon and for a judgment notwithstanding the verdict; and

3rd — For a new trial.

The trial court allowed defendant's motion for judgment notwithstanding the verdict, ordered the verdict set aside, and entered judgment for the defendant. This appeal followed.

In Broady v. Illinois Central R. R. Co., 7 Cir., 191 F.2d 73, certiorari denied, 342 U.S. 897, 72 S.Ct. 231, we held, on authority of Slocum v. Delaware, L. & W. R. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Order of Railway Conductors of America v. Pitney, 326 U.S. 561, 66 S.Ct. 322, 90 L.Ed. 318; and Order of Railway Conductors of America v. Southern Ry. Co., 339 U.S. 255, 70 S.Ct. 585, 94 L.Ed. 811, that the district courts of the United States have no jurisdiction in an action to restore a discharged railway employee to his position, or to award him back wages because of his alleged wrongful discharge.

As a consequence the judgment of March 19, 1951, in so far as it was based on the supplemental complaint filed by plaintiff in the District Court, was a nullity and therefore properly set aside.

In the case at bar, however, the District Court, because of diversity of citizenship, had jurisdiction to hear and determine the cause of action relied on in the original complaint. That, as we have pointed out, was an action to recover damages for alleged wrongful discharge. Conformably to the provisions of the Railway Labor Act, the contract between the defendant-railroad company and the plaintiff's bargaining representative, provides: "(d) Yardmen or switchtenders taken out of the service or censured for cause shall be notified by the Company of the reason therefor, and shall be given a hearing within five days after being taken out of service, if demanded, and if held longer shall be paid for all time so held at their regular rates of pay. Yardmen or switchtenders shall have the right to be present, and to have an employee of their choice, at hearings and investigations to hear all oral and to read all written testimony, and to bring out any facts in connection with the case. They shall also have the right to bring such witnesses as they may desire to give testimony and may appeal to a higher officer of the Company in case the decision is unsatisfactory. Such decision shall be made known in writing within three days after the hearing, or yardman or switchtender will be paid for all time lost after expiration of the three days."

The Railway Labor Act, 45 U.S.C.A. § 153 provides: "(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the...