Gregg v. Starks

• Citation: 188 Ky. 834
• Parties: Gregg v. Starks, et al.
• Decision Date: 01 October 1920
• Court: Court of Appeals of Kentucky

188 Ky. 834

Gregg v. Starks, et al.

Court of Appeals of Kentucky.

Decided October 1, 1920.

Jefferson Circuit Court.

DAVID R. CASTLEMAN for plaintiff.

ARTHUR B. BENSINGER and JOHN VERSER CONNER for defendant, William Pennybacker.

GROVER SALES and BRUCE & BULLITT for defendants, L. & N. R. R. and B. M. Starks.

MOTION FOR AN INJUNCTION BEFORE JUDGE E. S. CLARKE— Motion sustained.

By this action, pending in the Jefferson circuit court, plaintiff seeks to enjoin the defendants, Louisville & Nashville Railroad Company and its general manager, B. M. Starks, from displacing him as conductor on its passenger trains between Louisville and Bloomfield, Kentucky, known as trains Nos. 55 and 56, in favor of defendant, William Pennybacker, and the latter from accepting that run.

A motion for a temporary injunction was refused by the judge of the lower court before whom it was made and plaintiff has renewed that motion before me, in the consideration and determination of which, I have had the assistance of Chief Justice Carroll, Judges Thomas and Quin, who concur in this opinion.

Plaintiff's right to this particular run is claimed under two provisions of what he contends is the contract of the defendant railroad company with all of its conductors.

Pennybacker, who only of the defendants has filed answer or brief on the motion, contends: (1) That under the contract he, rather than plaintiff, is entitled to the run in controversy; (2) that a decision to that effect by the Railway Board of Adjustment, No. 1, organized under transportation act of 1920, is conclusive of his right thereto; (3) that plaintiff is not entitled to the benefits of the contract, and (4) that plaintiff will not suffer irreparable injury; has an adequate remedy at law and is not entitled to an injunction.

The facts, about which there is no dispute, are: Gregg has been in the employment of the railroad company for twenty-six years and for the last twenty years as a passenger conductor. He holds now and has held for the last two years the regular passenger run in controversy. Pennybacker has been employed by the company for thirty-one years, the past twenty-five years as a regular freight conductor; and by extra passenger service had qualified for a regular passenger run before this controversy arose.

On February 10, 1920, the railroad company, as required by the contract in question, posted a bulletin that, beginning February 20th, a regular work train would be established; and Pennybacker being the senior applicant was assigned to it.

This train was annulled February 28, 1920, and on March 6th Pennybacker filed application with the company for Gregg's run which the company declined to grant. On April 24th, 1920, an agreed statement of facts, the same in substance as above stated, was entered into between Pennybacker and the railroad company and by their mutual agreement to which Gregg was not a party, the right of Pennybacker under the contract to the run was referred to Railway Board of Adjustment No. 1, organized under the federal control act of 1918. Upon submission to that board, as shown by a copy of the decision filed with defendant's answer, it was held, without assigning the reasons therefor, that defendant was entitled to the run. The railroad company then gave notice to Gregg that Pennybacker would be given the run and this action followed. Gregg, if ousted by Pennybacker, can assert his seniority to the passenger run held by conductor Vanarsdale between Louisville and Lexington, which pays the same as the run in controversy.

For convenience we will consider defendant's contentions in the order in which we have stated them, supra.

1. The two provisions of the contract in controversy, the fourth paragraph of section (b) and section (j), are found in article 26 headed "Seniority and Filling Vacancies" and read: "Conductors displaced on account of reduction of crews, or other causes, will be permitted to exercise their seniority rights to any run held by a junior conductor, section (j) to govern passenger service."

(j) "Conductors will be required to participate in extra passenger work before being permitted to exercise their seniority rights to permanent passenger vacancies."

Except for the reference therein to (j), section (b) would unquestionably sustain defendant's contention because otherwise by its unambiguous terms it gives any conductor, freight or passenger, a seniority right to any run in either freight or passenger service "held by a junior conductor." But this entire section very clearly was not intended to mean that because it expressly provides that section (j) shall govern passenger service. The latter section is therefore the important factor in determining this controversy over a passenger run. For Pennybacker, it is insisted that section (j) means only that a freight conductor must qualify for passenger service by extra work in that department before he may exercise his right of seniority to a passenger run; that when so qualified, he may exercise that right to any run in the passenger service held by a junior occupant regardless of whether there is a vacancy or not. It is contended for Gregg that such a construction of section (j) entirely ignores and disregards the last three words thereof, namely, "permanent passenger vacancies." He contends that these words must be considered and that when considered, the section as a whole can only mean that the right of a senior freight conductor to a regular passenger run is confined to permanent passenger vacanies and cannot be exercised where there is no vacancy as is the case here. We must assume that these words were intended to have some force and we are unable to attribute to them any meaning whatever except that given them by plaintiff; nor does counsel for defendant suggest anything else they could mean, but insists they have no qualifying effect whatever. To this we cannot agree, but must hold, that by its terms a freight conductor, qualified for passenger service, can not enter that service by displacing a junior occupant of a regular passenger run but must await a vacancy when by reason of his seniority he will be given the run in preference to junior passenger conductors applying therefor.

2. The Railway Board of...