Crowell v. Palmer

• Decision Date: 09 April 1948
• Citation: 134 Conn. 502,58 A.2d 729
• Court: Connecticut Supreme Court
• Parties: CROWELL et al. v. PALMER et al.

134 Conn. 502

58 A.2d 729

CROWELL et al.

v.PALMER et al.

Supreme Court of Errors of Connecticut.

April 9, 1948.

Appeal from Court of Common Pleas, New Haven County; Fitzgerald, Judge.

Action by Truman P. Crowell and others against Howard S. Palmer and others, trustees of the New York, New Haven & Hartford Railroad Company, and another, to recover damages for discrimination by defendants in assigning overtime work and for injunctive relief. Judgment of nonsuit, and from a denial of their motion to set it aside, plaintiffs appeal.

Error, judgment set aside, and new trial ordered.

Charles Albom, of New Haven (Nelson Harris, of New Haven, on the brief), for appellants (plaintiffs).

Charles M. Lyman, of New Haven, for appellee (defendant union).

R. W. Pickard, of New Haven (J. H. Gardner, Jr., of New Haven, on the brief), for appellees (defendant trustees).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

Twenty-one carmen working out of the Hartford division of the New York, New Haven and Hartford Railroad brought this action for breach of contract and for tort in the nature of a civil conspiracy against the trustees of the company and Local No. 1435 of the Brotherhood Railway Carmen of America, affiliated with the American Federation of Labor. They sought damages and an injunction. After the plaintiffs had presented their evidence and had rested their case, the trial court granted a motion for a nonsuit on the grounds that the plaintiffs had not made out a prima facie case entitling them to damages and that they had not shown that they were entitled to injunctive relief. The plaintiffs have appealed from a denial of their motion to set aside the nonsuit.

The complaint is in one count and is stated in broad terms. It purports to allege several causes of action, but the appeal relates only to an allegation of a conspiracy between the union and the employer to deprive the plaintiffs of their fair share of overtime work. In its memorandum of decision, the trial court did not expressly decide the basic issue as to whether a prima facie case of conspiracy had been made out. It considered and upheld the defendants' claim that the plaintiffs had not made out a prima facie case entitling them to either damages or injunctive relief. It said, however, that, quite apart from the question of damages, the evidence disclosed ‘that practically all the plaintiffs have enjoyed Sunday work on an extra basis. So far as had been made to appear no obstacle stood in their way for this extra employment during the period in question.’ As will later appear, this is tantamount to a holding that there was no unfair discrimination. Since this is so, and since the issue is a basic one which is certain to arise upon a new trial, we directly decide it.

The right of the court to grant a nonsuit is given by General Statutes, § 5662, which provides that the court may grant one ‘if in its opinion the plaintiff shall have failed to make out a prima facie case.’ The right is to be sparingly exercised; a plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence; and a party has the same right to submit a weak case as he has to submit a strong one, Fritz v. Gaudet, 101 Conn. 52, 53, 124 A. 841; Where the granting of a nonsuit must depend in any appreciable degree upon the court's passing upon the credibility of witnesses, the nonsuit should not be granted, Pentino v. Pappas, 96 Conn. 230, 232, 113 A. 451; where a case is close, the preferable course is to deny a motion for a nonsuit, Bawol v. Gumkowski, 104 Conn. 746, 133 A. 917; the power to grant a nonsuit and the rules governing the court in granting it are the same whether the action be tried to the court or to the jury. Pentino v. Pappas, supra, 96 Conn. 230, 231, 113 A. 451.

The evidence may be summarized. The twenty-one plaintiffs, together with twenty-four other men, made up the group of carmen employed by the railroad in the Hartford area who had worked sufficiently long to be considered with respect to an equal distribution of overtime work. The plaintiffs were mostly nonunion men. The defendant union, by reason of its inclusion of the majority of the railroad's carmen in its membership, was the sole bargaining representative of the railroad's carmen, whether union members or not. All carmen operated under a collective bargaining agreement. In 1941, rule 9 of the agreement provided that ‘Record will be kept of overtime worked and men called with the purpose in view of distributing the overtime equally.’ Under this provision the management arranged the distribution of the work and the union had no part in it. The duty of keeping the record rested on the railroad. In 1943, the union thought that overtime of a particular kind known as doubling was being assigned unfairly for the benefit of certain favored individuals, and an amendment was made, effective on June 25, 1943, leaving the above quoted language unchanged and inserting immediately prior to it: ‘Overtime to be distributed in conjunction with the duly authorized local committee of the craft or their representative and and the Local Management.’

The new provision was carried into effect by the preparation by the shop committee of the defendant union of a list of men, to be kept in the proper railroad office and to be used in calling men. The most desirable kind of overtime work was called a ‘double’ and meant an opportunity to work an additional eight hours in the same twenty-four hour shift over and above the carmen's regular eight hours, at overtime rates, in place of another employee regularly assigned to the job. The list was to be used only in calling in a double. Within a week after the posting of the first list for doubles the plaintiffs began to complain that only union names were on the list, and appeals were taken under another rule, rule 32, to successive officials of the railroad. Despite the fact that from July 8, 1943, to the date of trial only union names appeared on the lists, and management had knowledge of this fact and deprecated it, no relief was afforded. The reason assigned was the fact that management was powerless to correct the situation, that the lists had been submitted by the union, and that management could do nothing about it. Appeals were then taken to the railway adjustment board under rule 33 in December, 1943, but they were voluntarily withdrawn after they had been pending for several months. There is a mass of evidence as to the doubles done by union men whose names appeared on the lists. There is evidence that the plaintiffs were ready, willing and able to do doubles at all times, if their names had appeared on the lists.

There is a fundamental difference in the approach of the parties. The plaintiffs' case is based upon the claim that the change in the rule made in 1943 has to do only with that kind of overtime known as doubles, and their evidence is directed solely to unfair allocation of it. The defendants contend that the rule comprehends all overtime work and that an analysis of the whole evidence shows that the plaintiffs have not been unfairly discriminated against in the allotment of overtime. It is true that the agreement uses only the word ‘overtime’ and that overtime known as doubles is not mentioned. However, the fact that the words ‘men called’ continued in the agreement is of significance. The lists were made up with an introductory statement, which, when posted before the railroad man in charge of calling employees, read: ‘* * * the following men will be called for overtime work’; entries in the logbooks of the company read: ‘Men to be called for inspection’; ‘Men to be called if needed to double.’

‘Overtime’ in general was used concerning three and possibly four kinds of work: (a) Doubling; (b) ordinary overtime, where a man stayed on beyond the period to complete a job; this was not a matter of ‘assignment’; (c) work on the wrecking crew; it does not appear how this was assigned, but it was, of course, sporadic; (d) Sunday and holiday work; this was a continuance of an employee's regular job for an extra day; how he was ‘assigned’ to it does not definitely appear; it is referred to as a ‘normally bulletined job’ and again it is said that separate lists were kept. The last three were not doubling, nor were men ‘called’ for them as they were for doubles. In addition to this evidence, there is testimony, as already stated, that the lists were used only in the calling of doubles.

The particular clause in the rule requiring equality in treatment is that which provides that men shall be ‘called’ so as to accomplish that end. The only type of overtime work where men were ‘called’ in the evident sense used in the rule was doubling; and the introductory words to the lists in the logbooks specify that they are to be called ‘to double.’ Considering the reason which led to the rule, the use of the term ‘called’ in it, which the court could reasonably find was apt only to doubling, the express mention of doubles in the introduction to the lists in the logbooks, and the fact that there is only an incidental reference in the evidence to any other list than that used to call men for doubling, the court could reasonably find that the change in the rule was intended to apply...