Edwards v. Kentucky Utilities Co.

• Decision Date: 02 May 1941
• Citation: 286 Ky. 341,150 S.W.2d 916
• Parties: EDWARDS v. KENTUCKY UTILITIES CO.
• Court: Kentucky Court of Appeals

150 S.W.2d 916

286 Ky. 341

EDWARDS v. KENTUCKY UTILITIES CO.

Court of Appeals of Kentucky

May 2, 1941

Appeal from Circuit Court, Pulaski County; J. S. Sandusky, Judge.

Action by Ellis Edwards against the Kentucky Utilities Company for damages for alleged breach of contract of employment. From a judgment dismissing the petition, the plaintiff appeals.

Affirmed.

Chas N. Hobson, of Frankfort, and B. J. Bethurum, of Somerset, for appellant.

Gordon Laurent, Ogden & Galphin, of Louisville, and Ben V. Smith &amp Son, of Somerset, for appellee.

TILFORD Justice.

This appeal is from a judgment dismissing appellant's petition seeking damages for the breach by appellee of a contract for permanent and continuous employment. The evidence introduced by appellant which the Trial Court deemed insufficient to submit to the jury disclosed the following facts:

Appellant began working for the appellee as a meter reader, tester, and repairman, in 1932. Additional duties were assigned to him and in November, 1937, he was transferred to the office of the company in Preferred to the office of the company in Pineville. His employment was terminated by the appellee on December 24, 1937. A few days thereafter he called upon Frank McGiboney, meter superintendent at appellee's Daville office, to ascertain whether McGiboney had any work for him. He was informed by McGiboney that he would like to put appellant to work the following day, but that it would be necessary for him, McGiboney, to obtain authorization from the home office of the company at Lexington. Pending the procurement of the necessary authorization appellant secured employment with the Southern Railway Company at Spartanburg, South Carolina, during the period of re-conditioning cars at Spartanburg". Appellant worked for the Southern Railway Company two days, and, on receiving a telephone message from Cressell Edwards, his brother, that the job with appellee was waiting for him, returned to Kentucky and had a conversation with McGiboney which was thus related by appellant from the witness stand: "Q. Go ahead, now Mr. Edwards, and tell the Jury what was said there between you and Mr. McGiboney, and if the contract was made, tell what that contract was? A. Well, I told Mr. McGiboney that I was working for the Southern Railway Company, and was acquiring seniority rights with them, and that I wanted an understanding as to what we were going to do; I told him I wanted to be put back just like I was before, and he agreed to pay me my salary for the time I was gone, and he told me the Company would furnish me permanent employment as a meter tester, inspector and repairman.

"Q. Go ahead, Mr. Edwards, and explain to the Jury fully all that was said between you and Mr. McGiboney. A. Well, I told him that the Company let me out before on account of my union activity, and I wanted to know if that would have any effect on me this time, and he says ' you will not be bothered on account of your union activity'.

"Q. Was there anything said as to whether or not the Company would make any objection to your union activity? A. He said they would have no objection, yes.

"Q. Did he say anything as to how long your contract of employment would last? A. He said it was to be permanent."

Before appellant had returned to Kentucky, his father had telephoned McGiboney at the request of appellant's wife. The conversation which took place between the father and McGiboney was thus related by the father: "A. Well, I asked him if it would be a permanent job, and he said it would, and he said as soon as they could they was so they going to have a new meter set-up, and they was going to divide it up into Districts, and he said he wanted Ellis to have one of the Districts. I told him that Ellis's job was his meat and bread and that he didn't want to give up the job he had unless the other job was permanent, and he said it was permanent."

After telephoning appellant at Spartanburg that the job was waiting for him, Cressell Edwards also had a conversation with McGiboney--

"A. I told Frank McGiboney that Ellis would come back and would accept employment with the Kentucky Utilities Company, if the Company would pay him full time for the time he was off, and pay him what they had been paying him previously, and would give him a permanent job with the Company.

"Q. What did Mr. McGiboney say? A. He said, 'Get him back, I will accept the agreement'.

"Q. The proposition that you had put up to Mr. McGiboney was the proposition outlined to you by Ellis. A. Yes, I went over the agreement with Mr.McGiboney on the telephone, and told him what it would take to get him back."

Appellant testified that he would not have accepted the position offered him by appellee had it not been agreed that the position would be permanent; that he began working for the appellee under the agreement referred to on February 1, 1938, and was discharged on November 1, 1938. In relating the circumstances of his discharge, appellant testified: "He (Mr. McGiboney) said they would not need my services any longer, and I asked him if my union activities had anything to do with my being discharged, and he said the fact that I was a leader in the Union caused them to decide that they would discharge me, and I left."

His salary was $120 per month and expenses, and in addition he was paid this salary during the period of his unemployment by the appellee from December 24, 1937, to February 1, 1938. Logan Waddell, who, as general chairman of the Electrical Workers' Union, had obtained appellant's employment with the Southern Railway Company, testified that appellant did not seek reemployment by that company through him; but appellant testified that after his discharge by appellee on November 1, 1938, he had not been able to obtain employment. Aside from the testimony relating to the alleged seniority rights obtained by appellant as a result of his two days' employment by the Southern Railway Company, the foregoing is the substance of the testimony introduced by appellant, at the conclusion of which the Court peremptorily instructed the jury to find a verdict for the appellee. Thus, the fundamental question for decision, stated in its broadest terms, is whether, conceding that appellee agreed to employ appellant "permane...