Glover v. Brotherhood of Ry. and S. S. Clerks, Freight Handlers, Exp. and Station Emp.
| Decision Date | 08 April 1959 |
| Docket Number | No. 173,173 |
| Citation | 108 S.E.2d 78,250 N.C. 35 |
| Court | North Carolina Supreme Court |
| Parties | , 44 L.R.R.M. (BNA) 2098, 37 Lab.Cas. P 65,401 S. T. GLOVER, Jr. v. BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES. |
Oliver Carter, Carter & Murchison, George Rountree, Jr., Rountree & Clark, Wilmington, for plaintiff, appellant.
Craighill, Rendleman & Kennedy, Charlotte, Mulholland, Robie & Hickey, Washington D. C., J. B. Craighill, Charlotte, James L. Highsaw, Jr., Washington, D. C., of counsel, for defendant, appellee.
At this stage of the proceeding we are concerned with allegation only, not with proof. For the purpose of testing the sufficiency of the complaint, all well-pleaded facts are deemed admitted by the demurrer. Riddle v. Artis, 246 N.C. 629, 99 S.E.2d 857; Lewis v. Lee, 246 N.C. 68, 97 S.E.2d 469; Skinner v. Evans, 243 N.C. 760, 92 S.E.2d 209; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; Sabine v. Gill, 229 N.C. 599, 51 S.E.2d 1. Do the facts so pleaded, taken as true, and liberally construed in favor of the pleader, state a cause of action? If so, the demurrer should have been overruled. Sabine v. Gill, supra; Smith v. Sink, 210 N.C. 815, 188 S.E. 631; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481.
The allegations of the complaint, by summary and by quotation, are set forth in the preliminary statement. We call attention to the substance of a few material allegations which we think, taken together, distinguish this case from those cited by the defendant as authority or sustaining the demurrer.
It appears from the record that plaintiff, at the time this action was instituted (September 25, 1956, was no longer a member of the defendant brotherhood. He alleged (1) he had been wrongfully discharged by the employer; (2) he called on the brotherhood to resist the discharge and to have him restored, and his lost wages paid. '* * * it, (the defendant brotherhood) was at all times herein mentioned required, obligated, and under a legal contractual duty to represent the plaintiff * * * and to prosecute to a final conclusion * * both administratively and judicially, his claim * * * and the plaintiff was obligated and under a contractual duty to refrain from undertaking, in his own behalf * * * the prosecution, either administratively or judicially, of any such claim.' '* * * the plaintiff was required * * to execute and deliver * * * to the defendant a power of attorney in writing, authorizing and empowering the defendant and its duly accredited officers and agents as his agents and attorneys in fact (emphasis added) * * * to present, fully process and handle to a conclusion * * * in court if necessary * * * the claim on behalf of the plaintiff for restoration to service * * * reimbursement of wages lost by him as a result of the wrongful discharge.'
The complaint further alleges the defendant undertook to and did prosecute the plaintiff's claim through the various administrative stages necessary to establish his rights. The employer refused to obey the order of the National Railroad Adjustment Board to reinstate the plaintiff to his former position and to pay his lost wages. The plaintiff, in effect, alleges the next and final step to restore his rights and secure his wages was by petition to the District Court of the United States for the Eastern District of North Carolina as provided in § 153, subd. 1(p) of the Railway Labor Act. By way of limitation, however, the Act provides, § 153, subd. 1(q), that the action 'shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after.'
Finally, the plaintiff alleges, paragraphs 20 to 24, inclusive, that by written power of attorney he gave to his agent, the defendant brotherhood, the exclusive right to prosecute his claim administratively and judicially, and that the defendant having full knowledge of the two years' limitation, breached its contract to institute the action, and that he thus lost his right to compel the carrier to reinstate him and pay his wages.
As its first ground of demurrer, the defendant says: The brotherhood cannot be held responsible for the acts of its agents for the reason the agents are likewise the plaintiff's agents, he being a co-principal by reason of membership in the brotherhood. As Authority the defendant cites the following cases: Kordewick v. Brotherhood of Railroad Trainmen, 7 Cir., 1950, 181 F.2d 963; Duplis v. Rutland Aerie, No. 1001, Fraternal Order of Eagles, 1955, 118 Vt. 438, 111 A.2d 727; Marchitto v. Central R. Co. of New Jersey, 1952, 9 N.J. 456, 88 A.2d 851; Brotherhood of Railroad Trainmen v. Allen, Tex.Civ.App.1950, 230 S.W.2d 325; 148 Tex. 629, certiorari denied 1951, 340 U.S. 934, 71 S.Ct. 501, 95 L.Ed. 674; Atkinson v. Thompson, Tex.Civ.App.1958, 311 S.W.2d 250; De Villars v. Hessler, 1950, 363 Pa. 498, 70 A.2d 333, 14 A.L.R.2d 470; McClees v. Grand International Brotherhood of Locomotive Engineers, 1938, 59 Ohio App. 477, 18 N.E.2d 812; Hromek v. Gemeinde, 1941, 238 Wis. 204, 298 N.W. 587; Carr v. Northern Pac. Beneficial Ass'n, 1924, 128 Wash. 40, 221 P. 979; Martin v. Northern Pac. Beneficial Ass'n, 1897, 68 Minn. 521, 71 N.W. 701; Gilbert v. Crystal Fountain Lodge, 1887, 80 Ga. 284, 4 S.E. 905.
The rationale of the rule in the cases cited is succinctly stated by the Court of Civil Appeals of Texas in Brotherhood of Railroad Trainmen v. Allen, 230 S.W.2d 325, 327: 'The appellees and the other several hundred thousand members are principals, and we are of the opinion that one or more principals cannot sue their coprincipals and require them to respond in damages for the dereliction of duty of a joint agent. ' If we concede the soundness of the rule, it by no means follows that it applies to the plaintiff's case. The plaintiff alleges, in effect, that he entered into a contract with the brotherhood that it should be his agent with the exclusive right to prosecute his claim; and 'the plaintiff was obligated and under a contractual duty to refrain from undertaking on his own behalf * * * the prosecution, either administratively or judicially, of such claim. ' When liberally construed, the complaint alleges that the plaintiff was the principal and the brotherhood was his agent, with exclusive authority, to prosecute his claim.
The plaintiff contends this case does not involve the...
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