Gibson v. Johnson

• Decision Date: 30 March 1967
• Docket Number: No. 258,258
• Citation: 414 S.W.2d 235
• Parties: J. L. GIBSON, Appellant, v. L. D. JOHNSON et al. . Tyler
• Court: Texas Court of Appeals

Page 235

414 S.W.2d 235

J. L. GIBSON, Appellant, v. L. D. JOHNSON et al.

No. 258.

Court of Civil Appeals of Texas Tyler.

March 30, 1967.

Rehearing Denied May 4, 1967.

Ernest L. Sample, Beaumont, for appellant .

Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Henry H. Rogers, Lufkin, for appellees.

MOORE, Justice.

This is an appeal from a summary judgment. Appellant, J. L. Gibson, brought suit against L. D. Johnson and the Brotherhood of Locomotive Engineers for damages alleging that he was a member in good standing with the Brotherhood and that as such Johnson and the Brotherhood had the contractual obligation to represent him in handling grievances against his former employer, Missouri Pacific Railroad Company; that on or about December 5, 1950, appellant while engaged in his duties as a locomotive engineer for Missouri Pacific received personal injuries as a result of which he was disabled from performing his duties and was therefore laid off and out of service because of his condition until July 5, 1958; that on said date he had fully recovered and was able to resume his employment as an engineer; that on said date Johnson was the chief officer and agent of the Brotherhood and was charged with the responsibility of representing the appellant in the preparation and presentation of his request to the railroad company to return to active duty; that he requested Johnson and the Brotherhood to represent him in his application for reinstatement; that because of some ill will against him Johnson and the Brotherhood, either intentionally or negligently, failed to properly present his claim to return to work. Specifically, he alleged that the appellees negligently failed to make a timely appeal of his claim to the National Railway Adjustment Board and also refused to allow his attorneys to participate in the hearing before the board; that as a direct and proximate result of the conduct of Johnson, which was condoned or participated in by the Brotherhood, appellant's application to return to work was denied and that by reason thereof he was entitled to compensatory and punitive damages against Johnson and the Brotherhood in the sum and amount of $250,000.00.

Appellees Johnson and the Brotherhood denied the allegations, both generally and specially, and filed a motion for summary judgment. In the motion for summary judgment, appellees offered evidence showing Company, for total and permanent disability; while in the course of his employment with the railroad company in 1950 and as a result appellant had brought a suit against his employer, Missouri Pacific Railroad company, for total and permanent disability; that in said suit appellant alleged that he was totally and permanently disabled; that his cause was finally submitted to a jury under instructions allowing the jury to award appellant damages for all past and future loss of earnings, as well as damages for all past and future pain and suffering; that as a result, the jury awarded appellant the sum of $32,500.00; that appellant ultimately collected the judgment in that amount in March, 1958; that within approximately four months thereafter, on July 5, 1958, appellant filed a request with the railroad company requesting a return to duty as an engineer. The railroad refused the request. Thereupon, appellant sought the services of Johnson and the Brotherhood in the further presentation of his claim for restoration to duty with pay commencing on July 5, 1958. Johnson presented appellant's application to the various levels of railroad officials and being unsuccessful, thereafter appealed the appellant's claim to the National Railway Adjustment Board, hereinafter referred to as NRAB, which board also denied appellant's claim for reemployment, by an award dated October 31, 1963.

The award of the NRAB was attached to and made a part of appellees' motion for summary judgment. The original award, as well as the subsequent interpretative opinion and supporting opinion, makes it clear that the reason for the ruling of the board denying appellant the right to return to work as an engineer was because of the fact that he had previously filed a suit claiming total and permanent disability in which he recovered the sum of $32,500.00, and was therefore estopped to take a contrary position in his application for reinstatement, and the award also makes it clear that such facts were the sole and only reason for the award denying his right to return to work with the railroad. The award, together with the interpretative opinion and the supporting opinion, further shows that the board afforded appellant a full hearing on the merits of his claim and that the decision denying appellant's claim was not based upon any failure of the appellees to perfect any step in presenting the claim within the time limit prescribed. In reply to a dissenting opinion, the majority filed a supporting opinion which reads in part as follows:

'The dissenters quite ineffectively complain against the well established rule enunciated time and again that once a plaintiff declares in Court he is permanently unable to perform work, in the future, at his railroad occupation, and offers proof in substantiation of his disability, he is no longer in position to claim, with respect to any alleged future rights or privileges, further employment under his prior employment contract.'

Immediately following this, the board cited many cases and prior NRAB decisions announcing the rule of law that once a plaintiff has obtained a judgment against his employer for total and permanent disability as a result of an injury sustained in the course and scope of his employment, he is estopped from claiming any right to return to work for that employer. The award further stated that: 'This was a simple case of a demand for return to service, wholly inconsistent with an F.E.L.A. trial had on that very issue. (See Jay Lee Gibson v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, N.O.T. & M. Ry. Co., District Court of Harris County, Texas, 129th Judicial District, Court of Civil Appeals, 290 S.W.2d 305, Supreme Court of Texas, 298 S.W.2d 97, Cert. granted by The Supreme Court of the United States, 355 U.S . 18 (78 S.Ct. 2, 2 L.Ed.2d 1), rehearing den., 355 U.S. 900 (78 S.Ct. 258, 2 L.Ed.2d 197)).'

Appellant filed nothing in response to the motion for summary judgment.

After a hearing, the trial court rendered judgment reciting that the court was of the opinion and found that the evidence presented in connection with the motion for summary judgment shows that, except for the amount of damages, there was not a genuine issue of material fact and that the appellees were entitled to a summary judgment as a matter of law.

Appellant excepted to the ruling of the court and perfected this appeal in which he insists that the trial court erred in granting the summary judgment because the evidence contained in the depositions on file in the cause raised a genuine issue of fact upon the questions of (1) whether appellees acted intentionally or in bad faith in presenting his claim; (2) whether appellees negligently failed to timely file his appeal with the NRAB; and (3) whether they intentionally or negligently refused to allow his attorney to participate in the proceedings.

Appellees contend that since the record shows conclusively that appellant had filed suit and collected for total and permanent disability against the railroad, appellant was estopped from asserting a right to return to work. Consequently, they...