Gantt v. Southern Ry. Co.

• Decision Date: 17 September 1923
• Docket Number: 11295.
• Citation: 118 S.E. 920,125 S.C. 518
• Parties: GANTT v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

118 S.E. 920

125 S.C. 518

GANTT v. SOUTHERN RY. CO.

No. 11295.

Supreme Court of South Carolina

September 17, 1923

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by James Gantt against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Frank G. Tompkins and Barnett & McDonald, all of Columbia, for appellant.

Graydon & Graydon, of Columbia, for respondent.

FRASER J.

The case contains the following:

"This action was commenced in December, 1921, by the plaintiff against defendant, the plaintiff claiming $1,500 in that he was discharged without cause and without an investigation in accordance with the provisions of a certain agreement between the heads of certain unions and the defendant. The defendant interposed a general denial. There was a former appeal in the same case. Gantt v. Southern Railway Co. (S. C.) 113 S.E. 79. Upon the second trial of the case the jury returned a verdict for plaintiff in the sum of $165."

"The particular provision upon which plaintiff based his cause of action is article 31, of the pamphlet entitled 'Schedule of Wages, Rules and Regulations,' reading as follows:

'Investigations and Discipline.

Conductors, flagmen, baggagemen, brakemen, switch tenders and porters will not be discharged or demerited without an investigation, which will be made by 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, switch tender, or porter, as the case may be, of their own selection, provided such person is employed and is in good standing on the division. If found blameless, they will be paid for 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 written notice of same.'

Various exceptions were taken to the failure of the trial court to order a nonsuit or direct a verdict and to the charge to the jury.

This action was started on the 17th day of December, 1921, by the service of a summons and complaint and within the time allowed by law defendant duly answered the same with a general denial. The case came on for a trial before Hon. M S. Whaley, County Judge, and a jury, and resulted in a verdict in favor of the plaintiff, on the 13th day of February, 1922, for $700." (This refers to the first trial.)

"The complaint, omitting title, was as follows:

'(1) That the defendant is a corporation duly chartered under the laws of the state of Virginia, and is engaged in the general railroad business in this state and county.

(2) That at the times hereinafter mentioned said railroad company was being operated under the rules and regulations made by the United States Railroad Administration with said Southern Railway, executed February 28, 1920, in accordance with the terms of the Settlement Award of the Committee of the Council of National Defense made in New York under date of March 19, 1917, and decisions handed down by the Commission of Eight subsequent to the latter date.

(3) That the plaintiff, James Gantt, is a resident and citizen of this county and state, and was working as a brakeman on July 20, 1921, and had been for some time previous thereto.

(4) That under said agreement, above referred to, the said James Gantt was drawing wages at the rate of $4.88 for an eight-hour day and was averaging four hours overtime at 91 cents an hour every day.

(5) That on the 20th day of July, 1921, while working under said agreement near Branchville, S. C., there was an accident to the train on which the plaintiff was working.

(6) That thereafter, to wit, on July 25, 1921, Superintendent W. D. Post, of Columbia, S. C., without giving the plaintiff any investigation whatsoever, as provided by article 31 of the agreement above referred to, discharged this plaintiff from the service of said railway company, in violation of the terms of said article 31 of said agreement, the said agreement having been for the benefit of the employees of said company, among them being this plaintiff.

(7) That according to the terms of said agreement this plaintiff could not be discharged without an investigation and without paying him for his lost time, in case he was unjustly discharged, but nevertheless the said W. D. Post superintendent of this division of the Southern Railway Company and acting for said company, discharged said plaintiff without cause, and failed and refused to furnish this plaintiff with any charges, and failed to comply with article 31.

(8) That by reason of said breach of contract this plaintiff has lost the sum of $1,500 wages, which he would have earned if he had not been discharged, and which he is entitled to recover under the terms of said contract.

Wherefore the plaintiff demands judgment against the defendant in the sum of $1,500, and for the costs of this action.'

Answer:

'Denies each and every allegation of the complaint.'

Testimony:

Direct examination:

James Gantt, colored, plaintiff, testified:

'On the 20th of July, 1921, I was working for the Southern Railroad as brakeman at Blackville, South Carolina. I had been in the employ of the Southern as a brakeman for approximately three years, and at the time I was discharged was making, at the least calculation, $9 a day, including overtime. My wages for an eight-hour day were $4.88 with time and one-half for overtime. At Blackville we had an accident to train No. 582, on which I was brakeman, occasioned by our train backing out of the Y into another train that was backing out of the other leg of the Y. The accident happened at night about 2 o'clock in the morning. It was not my fault that the collision occurred. I had followed the conductor to the office instead of staying with the train as he had ordered me to do it, and the rules required me to obey him. As soon as our train started back, I signed it down, but it ran into the other train. After the accident, the next morning Trainmaster Williamson sent me and the other brakeman, Henry Govan, into Columbia. On the

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