Clay v. Louisville & N.R. Co.

• Decision Date: 15 May 1934
• Citation: 254 Ky. 271,71 S.W.2d 617
• Parties: CLAY v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

71 S.W.2d 617

254 Ky. 271

CLAY v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

May 15, 1934

Appeal from Circuit Court, Clark County.

Action by T. S. Clay against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

D. L Pendleton and C. F. Spencer, both of Winchester, for appellant.

Jouett & Metcalf, of Winchester, and Ashby M. Warren, of Louisville for appellee.

RICHARDSON Justice.

T. S Clay was employed from November 1, 1907, until the 1st day of May, 1929, as station agent and telegraph operator at Indian Fields in this state by the Louisville & Nashville Railroad Company. His services were rendered and accepted subject to the terms of an agreement between the railroad company and the telegraph operators, an association of certain railway employees, which agreement provided for the seniority rule among the station agents and operators of those employees of the railroad company who were entitled to hold and fill positions in the class of services in which they were employed according to the length of time of the services of the employee to the exclusion of all such employees who had served in the same capacity a shorter period of time in that district. He asserts that his seniority right placed him in the fourth position from the head of the list of employees filling the same position and gave him fourth choice of any position covered by the agreement of the association of the Eastern Kentucky division of the railroad company.

In 1929, J. D. Hayden, division superintendent of the Eastern Kentucky division of the Louisville & Nashville Railroad Company, signed and mailed to Clay this letter: "On account of the present slow business, the Management has insisted upon curtailing our operating expenses in every department, including the closing of such agency stations where the business has fallen off to the extent that agency service is no longer justified. I think you will agree with me that the business at Indian Fields has decreased to the point where the expense of your salary is not justified, and the Management realizing this has reached an agreement with the Telegraphers' Organization to exclude the position from the Telegraphers' Agreement upon our recommendation that we still maintain an agent at that point at a salary in keeping with the volume of business, although we were very strongly urged to abolish the agency altogether. As you know on several occasions there was some complaint from the Telegraphers that extra men should be entitled to fill any vacancy at Indian Fields caused by your leaving for a few days, notwithstanding the fact that the agency is conducted in your place of business, and it was principally for the reason, and because we felt that you would agree to accept smaller compensation for your duties as Agent, on account of the slight amount of business handled, that the agreement was made to exclude this position from the Telegraphers' Agreement, in lieu of closing the agency entirely. We are authorized to pay $50.00 per month on this position, effective May 1st, and it is understood that you will be relieved entirely of your train order work, and that your duties will consist entirely of looking after our freight and passenger business. If you are willing to accept this reduced rate, advise and this arrangement will be put into effect on the first of next month."

The day following the receipt of the letter, Clay, in company with his brother, Floyd W. Clay, went to Ravenna and talked with Hayden "relative to the closing of that agency--operator's position," and requested "more definite details as to what kind of arrangements he (Hayden) intended to make." Clay claims that at that time he explained to Hayden he had twenty years' seniority right that would enable him to take most any position on the division; "it was a valuable right," and he did not "want to give it up," and, if he meant by his letter the $50 arrangement he proposed to make, the agency would be maintained at Indian Fields as "he" "wanted to stay there," "he" would consider it instead of taking "his" seniority right and would relinquish "his" seniority right. He admits he and Hayden did not agree at that particular time, but claims he informed Hayden he "would consider it," and on his return home he discussed the "whole situation" with his brother, and the next day wrote Hayden, and, according to the language of his own letter, he accepted unconditionally the proposition contained in his (Hayden's) letter. His letter so accepting Hayden's proposition reads: "Your letter 25th inst. relative Agency, Indian Fields, Ky. your file 2115, Desk C. The arrangement to exclude this agency from the Telegraphers' Agreement and to establish in lieu thereof an agency here at a salary of $50.00 per month, is perfectly agreeable to me. Please permit me to thank you again for your consideration in cases of this kind and for the recommendations and effort you are now making toward desiring my appointment as Claim Agent. I hope the time will present itself when I can prove my real appreciation."

The agreement between Hayden and Clay, as evidenced by their letters, went into effect May 1, 1929, and in pursuance thereof Clay "performed all the duties and services required of him from that date until July 7th, 1932," when he claims the railroad company "wrongfully and in violation of this contract" closed its agency at Indian Fields, and thereby he "was thrown out of employment and deprived of all the benefits accruing to him under the terms and provisions thereof." Many years before, and at the date of, the letters of Hayden and Clay, the latter was also engaged at Indian Fields in farming and in the mercantile business and in the general practice of law in the county of his residence.

Clay brought this action to recover of the railroad company $15,000 for abolishing the agency and terminating his employment at Indian Fields.

As the basis of his right to recover, he avers, in his petition as amended, that, after he received Hayden's letter of date April 25, 1929, he "went to see the said Hayden superintendent, and agreed to accept...