Davis v. Davis

• Decision Date: 16 March 1926
• Docket Number: No. 24377.,24377.
• Citation: 197 Ind. 386,151 N.E. 134
• Parties: DAVIS v. DAVIS, Director General of Railroads.
• Court: Indiana Supreme Court

197 Ind. 386

151 N.E. 134

DAVIS

v.DAVIS, Director General of Railroads.

No. 24377.

Supreme Court of Indiana.

March 16, 1926.

Appeal from Gibson Circuit Court.

Action by Leslie Davis against James C. Davis, Director General of Railroads. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

See, also, 140 N. E. 461.

T. Morton McDonald, of Princeton, for appellant.

John D. Welman, of Evansville, and Lucius C. Embree and Morton C. Embree, both of Princeton, for appellee.

EWBANK, C. J.

[1] Sustaining a demurrer to appellant's complaint is the only error assigned. The demurrer was for the alleged reason “that said complaint does not state facts sufficient to constitute a cause of action.” And if this court shall find that it does not state facts sufficient, and that the decision of the circuit court to that effect was correct, such decision must be approved, without regard to the sufficiency or insufficiency of the memorandum which was filed with the demurrer. Bruns v. Cope, 105 N. E. 471, 182 Ind. 289, 296.Wagner v. Treesh, 125 N. E. 242, 71 Ind. App. 551, 554.

The complaint alleged that plaintiff had been damaged in the sum of $2,500, and prayed for a judgment against defendant in that amount, and, after stating the facts and conclusions hereinafter set out, alleged that “by reason of said action plaintiff lost 296 days' time at the rate of $5.33, of the value of $1,577.68,” and that he had demanded, in writing, that the defendant “pay to him the amount due him,” but that his demand was refused. It averred that he was “employed by the Director General of Railroads as a yard conductor” in certain railway yards “on and prior to the 22d day of January, 1919,” and on said date, “was suspended from said service by said Director General of Railroads,” and on the 17th of November, 1919, was “found blameless and reinstated in his employment.” But it did not allege that plaintiff had done any work for which he was not paid in full, or that he ever worked in such employment on any day or days whatever.*N.E.135It did not allege that plaintiff had entered into a contract with defendant to work for him for a period of time which embraced the 296 days referred to, or for any definite period of time of any agreed length, or that plaintiff ever agreed to work for the defendant, or the defendant ever agreed to employ him for any fixed or definite period of time or term of service that embraced any part of the 296 days for which compensation was asked, or that defendant ever agreed to pay him, or he ever agreed to accept compensation at any rate of wages per hour, per day, per month, or on any stipulated basis at all, either for the time when he worked or the time when he was “suspended.” And there was no attempt to count upon an implied liability by alleging the value of his time, or that defendant had prevented him from taking other employment while he was “suspended,” or that he was unable to find other employment during that time, or stating the amount in which his earnings in such other employment fell below an amount (if anything) which defendant had agreed to pay him. And it was not alleged on what date plaintiff entered the employment of defendant, nor whether he had been working at his job before the Director General took over the operation of the railroads, or had begun work the day before the day on which he was “suspended.” But the complaint merely alleged:

That on and prior to said 22d day of January, 1919, plaintiff was employed by defendant as a yard conductor in the yards of the Southern Railway System, “under an oral contract of employment. That the terms of said employment was governed by a certain schedule of wages and rules and regulations” entered into in October, 1917, between an officer of the Southern Railway System, on its behalf, and an officer of a labor organization of which plaintiff was a member, on behalf of that organization. “That one of the provisions of said schedule was in words and figures following, to wit:

‘Discipline.

‘15. Conductors, flagmen, baggagemen, brakemen, and porters will not be discharged or demerited without an investigation which will be made by a proper officer, within five days, if possible, and in their presence. They will have the privilege of bringing to the investigation, to assist them, a conductor, flagman, baggageman, brakeman, or porter as the case may be of their own selection, provided such person is employed and in good standing on the division. If found blameless, they will be paid for the time lost. If discharged, they will be furnished with a letter showing cause of dismissal, term of service, and the capacity in which employed. If demerited, they will be furnished with a...