Cross Mountain Coal Co. v. Ault

• Decision Date: 13 October 1928
• Citation: 9 S.W.2d 692
• Parties: CROSS MOUNTAIN COAL CO. v. AULT.
• Court: Tennessee Supreme Court

Page 692

9 S.W.2d 692

CROSS MOUNTAIN COAL CO. v. AULT.

Supreme Court of Tennessee.

October 13, 1928.

Certioarai to Court of Appeals, on Appeal from Circuit Court, Anderson County; W. H. Buttram, Judge.

Action by H. L. Ault against the Cross Mountain Coal Company. Judgment of circuit court for plaintiff was reversed by the Court of Appeals and suit dismissed, and both parties bring certiorari. Reversed, and judgment of circuit court affirmed.

J. H. Wallace, of Clinton, and Frantz, McConnell & Seymour, of Knoxville, for plaintiff in error.

D. W. Byrge, of Oakdale, C. A. Templeton, of Jellico, and J. B. Burnett, of Clinton, for defendant in error.

SWIGGART, J.

H. L. Ault sued the Cross Mountain Coal Company for damages, for breach of a contract of employment. From a judgment in favor of plaintiff, the Cross Mountain Coal Company prosecuted an appeal in the nature of a writ of error to the Court of Appeals. That court reversed the judgment of the circuit court, and dismissed the suit, as on a directed verdict for the defendant. Both parties filed petitions for certiorari in this court, pursuant to which writs of certiorari issued to the Court of Appeals; and the case has been heard in this court on oral argument.

The Court of Appeals first entered an affirmance of the judgment of the circuit court, on the ground that the record failed to show that the bill of exceptions had been signed by the circuit judge. On petition to rehear, a written agreement, signed by both parties, was presented to that court, in which it was recited that the circuit judge had, in fact, signed the bill of exceptions, within the time allowed by law; that the omission of the signature was an error of the clerk in preparing the transcript; and that it was agreed by counsel for both parties that the defect in the record should be corrected as on suggestion of the diminution of the record, without the necessity of a formal motion and certiorari.

The petition to rehear disclosed that this agreement had been withheld from the record, through inadvertence, and prayed that it be permitted to be filed and the case heard on the merits.

The Court of Appeals sustained the petition to rehear, over the objection of counsel for Ault, and rendered judgment on the merits, as above recited. This action of the Court of Appeals is assigned as error.

We are of the opinion that it was within the discretion of the Court of Appeals to permit the record to be corrected, on petition to rehear. The laches of counsel for the coal company had not resulted in any change in the status of the parties, and no substantive right of the plaintiff was taken from him by the action of the Court of Appeals.

The assignment of error will therefore be overruled.

Plaintiff's declaration sets up a contract or agreement signed by representatives of coal miners and operators of coal mines, purporting to state the conditions of employment and working conditions, effective "in Southern Kentucky and East Tennessee for the two years beginning April 1, 1920, and ending March 31, 1922."

The declaration avers that this contract was made by the plaintiff with the defendant "through himself and agents."

It was averred that the defendant had breached the contract in the following particulars:

"(1) The defendant locked the plaintiff out of its mines and refused to allow him to work for it under the above contract on or about the 10th day of May, 1921. (2) The defendant breached the above contract when it refused to pay the plaintiff scale wages set out in the above contract, and on or about the 10th of May, 1921, the plaintiff had to seek work elsewhere. (3) The defendant breached the above contract because it refused to allow plaintiff to work for it because he belonged to the United Mine Workers of America."

Provisions of the agreement between operators and miners, material to the present case, are as follows:

A mine committee was authorized, to whom employés should have the right to present disagreements between themselves and the mine foreman. If the "company officials" disagreed with the conclusions of the mine committee, the dispute was to be referred to an "arbitration board," composed of two representatives of the operators and two representatives of the miners, and a referee, whose decisions were to be "final and binding on all parties to this agreement."

It was provided in the agreement that in the event suspension of work in a mine should result from a strike, the striking employés would be liable to a fine of $2 per day, payable to the arbitration board and disposed of by that board. In the event a mine should be closed by the operator "on account of any dispute or difference," and the miners should be locked out, or in the event the operator or company should refuse to appear before the arbitration board, or abide by its decisions, the operator or company was required to pay a fine of $2 per day for each employé affected, etc.

With regard to the hiring and discharging of employés, the agreement contained the following:

"The right to hire and discharge.

"The right to hire must also include the right to discharge, and it is not the purpose of this agreement to abridge the rights of the employer in either of these respects. If, however, any employé discharged by the company claims that an injustice has been done him, the question, like any other dispute, shall be taken up and disposed of by the board of arbitration."

The agreement further provided that —

"It is distinctly understood and agreed that men shall not be discriminated against on account of membership or nonmembership in any organization," etc.

The coal company did not introduce any evidence on the trial of the case, but relied upon its motion for a directed verdict, made at the close of the evidence offered by plaintiff. A number of objections were made to portions of the plaintiff's evidence, and the motion for a new trial contained grounds directed at various portions of the charge to the jury. In the brief filed for the coal company in this court it is stated that other cases are pending between miners and employers, under the agreement above referred to, and, in order to secure an early determination of the controlling questions of law, "all objections to testimony and the charge of the court are waived."

It was contended on the trial by the coal company that the proof failed to show that it had ever agreed to or accepted the agreement entered into between representatives of miners and operators; and the plea of non est factum was interposed. On the trial, a copy of the agreement was offered bearing the indorsement: "Accepted. Cross Mountain Coal Company, by W. P. Davis, General Manager." The signature of Mr. Davis was not otherwise proven, but the trial judge instructed the jury that this copy was prima facie evidence of the acceptance of the agreement by the Cross Mountain Coal Company. The waiver of any objections to the admission of testimony, or to any possible error in the charge, would prevent the court from holding on this appeal that the record contains no evidence of the acceptance of the agreement by the defendant company.

Without referring to the evidence in detail, we think it clearly established that the employés of the coal company, including Ault, considered that they were working under this agreement, as their contract of employment, from its effective date, April 1, 1920.

We think the legal effect of the agreement between the operators and miners is that it became a part of and formed the basis of the contract of employment between each operator accepting it and each of his employés, who entered or continued in the service and employment of such employer with knowledge of its execution, and in the absence of any express contract between the individual employé and his employer inconsistent with the terms of the agreement. Hudson v. Cincinnati, etc., Railway Co., 152 Ky. 711, 154 S. W. 47, 45 L. R. A. (N. S.) 184, Ann. Cas. 1915B, 98; West v. B. & O. R. Co., 103 W. Va. 417, 137 S. E. 654.

In the early part of May, 1921, the Cross Mountain Coal Company suspended operations of its mine because of unfavorable market conditions, and did not resume operations until November, 1921.

It is contended for the plaintiff that the closing of the mine was a breach of the contract of employment, and that the effect of the contract was that the miners...