Graham v. Grand Division Order of Ry. Conductors, 18925.

• Citation: 107 S.W.2d 121
• Decision Date: 24 May 1937
• Docket Number: No. 18925.,18925.
• Parties: GRAHAM v. GRAND DIVISION ORDER OF RAILWAY CONDUCTORS et al.
• Court: Court of Appeal of Missouri (US)

107 S.W.2d 121

GRAHAM v. GRAND DIVISION ORDER OF RAILWAY CONDUCTORS et al.

No. 18925.

Kansas City Court of Appeals. Missouri.

May 24, 1937.

Rehearing Denied June 14, 1937.

Appeal from Circuit Court, Henry County; Charles A. Calvird, Judge.

"Not to be published in State Reports."

Action by W. S. Graham against the Grand Division Order of Railway Conductors and others. From an adverse judgment, plaintiff appeals.

Affirmed.

David B. Logsdon, of Kansas City, Vance Julian, of Clinton, and V. E. Phillips, of Kansas City, for appellant.

Winger, Reeder, Barker & Hazard, of Kansas City, and Grimm, Elliot, Shuttleworth & Ingersoll, of Cedar Rapids, Iowa, for respondents.

CAMPBELL, Commissioner.

Plaintiff's petition alleged that the defendant Grand Division Order of Railway Conductors was a fraternal organization consisting of grand and subordinate lodges; that its members were conductors employed on the several railroads throughout the United States; that said order was governed and controlled by its constitution and bylaws made and revised at regular conventions as provided in its constitution; that one of the purposes of the organization was to enter into agreements relating to working conditions, rates of pay which involved the seniority rights of the employees on their respective railroads, and that the defendants were authorized to make contracts and working agreements for the protection of its class of workers in maintaining seniority rights; that plaintiff on or about July 1, 1910, was employed by the Kansas City, Clinton & Springfield Railway (hereinafter called railway), a railroad corporation operating a line of railway approximately 154.8 miles in length between Olatha, Kan., and Ash Grove, Mo.; that on and after July 1, 1898, said line of railway paralleled a line of railway operated by the St. Louis-San Francisco Railway Company (hereinafter called Frisco), running from Kansas City, Mo., through Clinton, Mo., to Springfield, Mo., and that said two lines of railway served many common points; that on or about December 24, 1913, plaintiff was promoted to the position of conductor of the railway and thereafter worked in that capacity until about July 11, 1935; that on or about July 6, 1919, plaintiff became a member of the "defendant organization"; that before June 15, 1924, certain portions of the Frisco Railway between Kansas City and Springfield were abandoned, and the trains of said railway were operated over a portion of the lines of the railway between Harlan Junction and Tracy Junction at or near Vista, Mo.; that on or about June 15, 1924, a portion of the line of the railway was abandoned and trains of the railway were operated over the railroad of the Frisco, a distance of approximately 11.6 miles; that on the date last aforesaid the railway was taken over for operation and control by the Frisco and certain consolidations made with respect to station agents and yard switching at common points on the two lines of railway, and by reason thereof operation of that part of the railway taken over by the Frisco, all of the independent working agreements of the Frisco became effective and binding upon plaintiff and other employees of the railway; that thereafter the Frisco continued to operate the lines of the railway which were thereafter known and referred to as the Osceola Sub; and that certain parts of the sub railway were abandoned and the trains of the sub were operated over the Frisco at points between Belton, Mo., and Ash Grove, Mo., until about July 5, 1935, when in obedience to an order of the Interstate Commerce Commission the said Osceola Sub, except as to parts over which the Frisco trains were operating, which parts included the line between Harlan Junction and Tracy Junction, approximately 2½ miles in length, and between Deepwater, Mo., and Lowry City Junction, Mo., approximately 9 miles in length, were totally absorbed and permanently abandoned, except several miles of trackage which is still being used by the Frisco; that section 62 of the laws of Order of Railway Conductors was as follows: "Whenever one railroad is absorbed or leased by another railroad the conductors on the road absorbed or leased shall retain their right and seniority as heretofore on the road absorbed or leased. When it becomes necessary to readjust the service of the merged roads, the trains and runs shall be manned by conductors of the respective roads in proportion, as nearly as practicable, to the mileage run on the territory of each."

The petition further alleged that immediately after the Osceola Sub was taken over by the Frisco in 1924, a volume of work was diverted from said sub to the adjoining parallel line operated by the Frisco and known as the Clinton Sub; that pursuant to the provisions of the laws of the Order of Railway Conductors, plaintiff made application to the local lodge and to the general chairman of the Order of Railway Conductors in which he requested that a single seniority district be maintained for the two adjoining parallel districts; that since there was still in existence 110 miles of the track of the railway, a separate seniority district was maintained therefor; that thereafter on or about July 5, 1935, the Clinton Sub was absorbed or abandoned, "although during the period aforesaid when the St. Louis-San Francisco Railway Company acquired the Osceola Sub and thereafter the absorbing or abandonment, a certain portion of the trackage over which the Osceola Sub was operated was and still is used by the acquiring railroad, until on the said date petitioner was notified to turn in his transportation and company property; and in direct violation of the `seniority' and employment rights which plaintiff acquired during his twenty-five years of continuous, satisfactory service with the said Railway, he was dismissed from his position as conductor and although repeated demands have been made, both upon the Order of Railway Conductors and through its properly authorized agents and through the Railway Company, he has been denied the right of restoration to his employment and to the proper allocation of his `seniority' right as is provided by the Constitution as herein set forth."

The petition further alleged that the defendants were acting for and in behalf of their members and other employees who came under the same class of service; and that the action of defendants in refusing to adjust the rights of plaintiff was arbitrary, unlawful, and in disregard of his rights; that he had fully complied with the rules and regulations of the organization; that defendants unlawfully and maliciously conspired and acted together to prevent plaintiff from obtaining his rightful position as an employee of the Frisco, and as a result thereof plaintiff has been unlawfully removed from his rightful position as a conductor; that unless defendants are enjoined from unlawful interference with the rights of plaintiff and are ordered to enforce the regulations of the Order of Railway Conductors for the protection of its members, they will continue to deprive plaintiff of his employment. The prayer follows: "Wherefore, petitioner prays this court that the defendants be enjoined from unlawful interference with the rights of the plaintiff herein and that a mandatory injunction be issued directed to the defendants and each of them, compelling and requiring that the provisions of the Constitution and By-laws be carried out, and that proper division of the `seniority' district on the said Kansas City, Clinton & Springfield Railway Company, together with the seniority district of the St Louis San Francisco Railway Company, be divided and allocated in accordance with the Constitution and By-laws and the rights of this plaintiff and others falling within the same class be enforced, and for such other and further relief, temporary and permanent, as to this court may seem just and proper in the premises."

The separate answer of the defendant Grand Division Order of Railway Conductors was a plea in abatement in which it was stated that it was a voluntary unincorporated association and labor union, organized outside of the State of Missouri, and further stated facts sufficient to show that it was a fraternal society. The second count of the answer pleaded matters in defense to the merits of the action.

The answer of the defendant Order of Railway Conductors, Lodge No. 650, was a plea in abatement, alleged, in legal effect, the same facts as were contained in the plea in abatement of its codefendant.

The reply to the answer of the defendant Grand Division Order of Railway Conductors denied that said defendant was a voluntary unincorporated association and labor union; alleged that the said defendant was an organization possessing powers and privileges not possessed by individuals or partnerships, and that article 2 of its constitution adopted May 7, 1934, was as follows: "The Grand Division shall be composed of the following members: The President, the Senior Vice-President and eight additional Vice-Presidents (one of whom shall be a citizen of the Dominion of Canada and who shall also serve as Dominion Legislative Representative for the Dominion of Canada), the General Secretary and Treasurer; the Grand Inside Sentinel (who shall be appointed by the President from the Board of Directors), the Grand Outside Sentinel and the Trustees, all of whom (except the Grand Inside Sentinel) shall be elected by ballot triennially except as hereinafter provided; all Past Presidents and permanent members, so long as they remain members of Divisions under the jurisdiction of this Grand Division; one representative from each Division except as hereinafter provided."

The reply further alleged as follows:

"Further, Article 2, beginning at line 90 thereof of the said Constitution provides as follows:

"The Grand Division shall be known as the Grand Division of the Order of Railway Conductors of America and it shall have exclusive...