Cannon v. Brotherhood of Railroad Trainmen

• Decision Date: 14 June 1935
• Parties: CANNON v. BROTHERHOOD OF RAILROAD TRAINMEN ET AL.
• Court: Kentucky Court of Appeals

89 S.W.2d 620

262 Ky. 113

CANNON v. BROTHERHOOD OF RAILROAD TRAINMEN ET AL.

Court of Appeals of Kentucky

June 14, 1935

Rehearing Denied Feb. 7, 1936.

Appeal from Circuit Court, Knox County.

Action by W. H. Cannon against the Brotherhood of Railroad Trainmen and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

J. J Tye, of Barbourville, and W. R. Lay, of Steelville, Mo., for appellant.

Robsion & Sampson, of Barbourville, for appellees.

MORRIS Commissioner.

Appellant instituted his action against appellee, which he alleges is an unincorporated association with an extensive membership. He named the general chairman, the local chairman, and some representative members of the Brotherhood as parties defendant. Summons was served on two of those alleged to be representative members, and on one described in the petition as being a chairman.

The appellee and each personal defendant served, as well as those not served, moved the court to quash the return on the summons, which motion the court overruled over appellee's objection and exception, and of which ruling appellee complains in its brief. However, since there is no crossappeal prosecuted, and the ruling was favorable to appellant, who argues that the motion was correctly overruled, the court in this state of the record cannot pass on this question.

Appellees also filed a special demurrer to the petition as amended which the court sustained, and on failure to further plead dismissed the petition without prejudice, to which appellant objected.

Since the court overruled the motion to quash the return and sustained the demurrer, it may be assumed the court was of the opinion that the petition did not state such a cause as would give a civil court jurisdiction of the subject-matter or that appellant lacked the capacity to sue. Civ. Code Prac. § 91.

Appellant alleges that prior to January 1, 1927, he was a trainman in the employ of the Cumberland & Manchester Railroad Company; that on that date the Louisville & Nashville Railroad Company leased the Cumberland & Manchester and has continued to operate same as a part of its system. He contends that his service with the Cumberland & Manchester Railroad Company endowed him with certain seniority rights, mainly right to employment as a trainman in preference to "all employees" of the Louisville & Nashville Railroad Company, by reason, as he insists, of a contract existing at the time of the leasing and thereafter, whereby the Brotherhood passed on all seniority rights of the trainmen of the Louisville & Nashville which rights were to be manifested by approving the roster of its trainmen, and that under the contract the Louisville & Nashville must offer employment to "these said trainmen, including the plaintiff." His conclusion is based on what he alleges to be a portion of the contract, as follows:

"If the portion of line transferred is sufficient (evidently meaning "insufficient") in extent to constitute a separate promotion district, the men taken over therewith in the merger shall be placed on the roster of the promotion district to which the merged line is attached with seniority on such roster in their respective classes from a date not later than the date of merger. Men taken over with merged territory under this paragraph shall retain prior rights in their respective classes:

(1) To work on runs originating and terminating on the territory with which they are transferred.

(2) On crews forming a part of or the entire quota of crews running from the 'merged line' onto or over the acquiring line. * * *"

It is then charged that the Brotherhood, by the alleged contract, assumed the responsibility of approving the roster for the Louisville & Nashville "so as to faithfully and fairly protect the rights of this plaintiff," but he does not disclose whether or not the appellee prepared or failed to prepare a roster of the Cumberland & Manchester Railroad men, including or excluding appellant, nor does he allege fully what his particular rights were.

However, he alleges that the Louisville & Nashville Railroad in carrying out the alleged contract continued this plaintiff in his job as trainman until October, 1927, at which time the Brotherhood willfully and knowingly violated the agreement by causing and compelling the Louisville & Nashville to "discharge the plaintiff and place another in his position."

Appellant claims that at the time of his discharge he was making $170 per month; that he had since his discharge sought employment without avail, and he asks damages against the Brotherhood in the sum of $2,040, and prays that it be required to restore to him his rights.

In an amended petition appellant sought to have the Louisville & Nashville Railroad made a defendant, and, pleading mainly as in the original petition, adding that the Brotherhood adopted a constitution and by-laws under which it elected officers to carry on its business and to represent "the individual members of the organization in their dealings, and contracts with said employees," and that the individuals served with process were thus empowered, and did enter into a contract whereby the Louisville & Nashville agreed to employ members of the Brotherhood, because of their seniority rights "as set forth in the plaintiff's original petition." He states that by reason of the contract he as an individual member secured seniority rights to employment by the Louisville & Nashville, but says notwithstanding all these things the "said railroad company unlawfully, wrongfully in violation of his rights under the contract, removed him from his employment on the recommendation of the officers and those selected by the members of the Brotherhood to represent them in such matters, and whereby he was deprived of his seniority rights," and of his employment by the railroad company.

In the prayer of his original petition appellant asks judgment for $2,040 against the Brotherhood, and for a restoration to his priority rights as a trainman on the Cumberland & Manchester division of the Louisville & Nashville. In his amended petition, wherein he does not pray as in his original petition, he asks judgment against the Louisville & Nashville restoring him to his seniority rights, and that the named personal defendants, and all unknown members of the Brotherhood, be required to restore him to his seniority rights, "and that same be certified by them to the L. & N. for its approval." Since the appellant does not pray as in his original petition, it is difficult to determine whether or not he abandoned his claim for pecuniary damages; but this is not now of importance.

At this point it may be proper to call attention to the fact that while the Louisville & Nashville is sought to be made a party defendant by the amended petition there is no order of court making the Louisville & Nashville a party; there is no order...