Gunther v. San Diego & Arizona Eastern Railway Co.

• Decision Date: 15 April 1958
• Docket Number: Civ. No. 2080.
• Citation: 161 F. Supp. 295
• Court: U.S. District Court — Southern District of California
• Parties: F. J. GUNTHER, Petitioner, v. SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY, a corporation, Defendant.

161 F. Supp. 295

F. J. GUNTHER, Petitioner, v. SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY, a corporation, Defendant.

Civ. No. 2080.

United States District Court S. D. California, S. D.

April 15, 1958.

Hildebrand, Bills & McLeod, Oakland, Cal., Charles W. Decker, San Francisco, Cal., for petitioner.

Gray, Cary, Ames & Frye, James W. Archer, Eugene L. Freeland, San Diego, Cal., Burton Mason, W. A. Gregory, Harold S. Lentz, San Francisco, Cal., for defendant.

WEINBERGER, District Judge.

Plaintiff has asked this Court for an order (1) "enforcing the award and order of the National Railroad Adjustment Board, First Division, in said Adjustment Board proceeding, Docket No. 33-531," (2) "For an order of this Court requiring defendant to reinstate petitioner to active service on the `run' to which his seniority entitles him under said Agreement," (3) "For damages in the amount required to compensate petitioner for wages and other monetary contractual benefits lost by reason of the premises,"

Plaintiff alleges jurisdiction of this Court exists under the provisions of 45 U.S.C.A. § 153(p), and this appears to be the sole ground upon which jurisdiction is urged.

Subsection (o) of said section provides that in case of an award by the Board in favor of petitioner, the division "shall make an order, directed to the carrier, to make the award effective" and subsection (p) provides that "if a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner * * may file in the District Court of the United States * * * a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board * * *". The subsection further provides that "on the trial of such suit the findings and order of the division * * shall be prima facie evidence of the facts therein stated * * *". "The district courts are empowered, * * * to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board."

The complaint sets forth in full the "findings, award and order" of the Board, as Exhibit "A"; in effect the findings recite that shortly after his 71st birthday plaintiff was disqualified from service by the company's chief surgeon on the basis of a physical examination by a company physician and that later, the carrier's chief surgeon, after an examination, determined that plaintiff should not be returned to service. The plaintiff was then examined by another physician of his own choosing, and appealed to the Board for reinstatement with seniority rights unimpaired and pay for all time lost.

The Board stated:

"Since determination of the facts necessary to enable the Division to make proper award on such issue requires expert medical competence, it has not been unusual, where adequate showing has been made of ground for challenge of carrier's decision, for the Division to provide for a neutral board of three qualified physicians, one chosen by carrier and one by the employee and the third by the two so selected, for the purpose of determining the facts as to a claimant's disability and the propriety of his removal from service. In such case the Division predicates its award upon the findings of the board of physicians." (Emphasis supplied.)

The findings continue:

"While the statement of claimant's physician now submitted is generally equivocal we think that when considered in connection with his prior report and that of carrier's medical superintendent, it discloses sufficient substantial disagreement as to claimant's physical condition to justify further check up and inquiry by such a neutral board of physicians.

"If the decision of the majority of such board shall support the decision of carrier's chief surgeon the claim will be denied; if not, it will be sustained with pay pursuant to rule on the property from October 15, 1955, the date of the letter of Dr. Hall showing disagreement with the findings of disqualification by the company physicians.

"Award: Claim disposed of per findings."

The Act creating the National Railroad Adjustment Board represents a considered effort on the part of Congress to provide effective and desirable administrative remedies for adjustment of railroad-employee disputes growing out of the interpretation of existing agreements. Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 243, 70 S.Ct....