Hanson v. CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.
| Citation | 282 F.2d 758 |
| Decision Date | 27 September 1960 |
| Docket Number | No. 12970.,12970. |
| Parties | Milton P. HANSON, Plaintiff-Appellant, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Alex B. Cameron, Dale George Waterman, La Crosse, Wis., for appellant.
Ralph M. Hoyt, Milwaukee, Wis., John S. Coleman, La Crosse, Wis., T. G. Schuster, Chicago, Ill., S. R. Stroud, Madison, Wis., C. W. Krohl, Andrew C. Scott, Chicago, Ill., for appellee, Chicago, B. & Q. R. Co.; Eldon Martin, Chicago, Ill., of counsel.
Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
Plaintiff brought action in the District Court against The Chicago, Burlington and Quincy Railroad Company; The Grand Lodge of the Brotherhood of Locomotive Firemen and Enginemen; Guard Rail Lodge No. 168 of the Locomotive Firemen and Enginemen, La Crosse, Wisconsin; M. L. Schlegel, La Crosse, Wisconsin; Mr. R. B. Franke, La Crosse, Wisconsin; and V. E. Secrest (General Chairman of the Brotherhood of Locomotive Firemen and Enginemen, Chicago, Illinois); to compel the Chicago, Burlington and Quincy Railroad Company to reinstate him to active service on its working list; to restrain The Grand Lodge of the Brotherhood of Locomotive Firemen and Enginemen and Guard Rail Lodge No. 168 of the Locomotive Firemen and Enginemen, and the officers, agents and employees of each, from interfering with Plaintiff's contract of employment with the Railroad. He also prayed judgment in the amount of $57,600 as damages and $30,200 as punitive damages.
Plaintiff alleged that he had been employed by the Railroad from December, 1942, until October, 1953, when the Railroad had refused to fulfill its duties under his contract of employment. In his brief, Plaintiff explains that the Railroad removed him from service pursuant to an award of the First Division of the National Railroad Adjustment Board. In his Complaint he asserted that he had reaffirmed his membership in the Brotherhood by paying union dues and delivering an application for membership, but that he had not been notified of acceptance or rejection; that nevertheless the Brotherhood had failed to represent him and had interfered with his employment with the Railroad.
The Railroad moved to dismiss this pleading on the ground that it failed to state a claim on which relief could be granted. The other defendants (except V. E. Secrest who had not been served) filed a joint answer in which they asserted that the Complaint failed to state a claim against them on which relief could be granted and failed to show that the Court had jurisdiction of the subject matter.
The District Court dismissed the Complaint on the ground that it failed to state a claim, that it alleged no grounds upon which the District Court had jurisdiction of the subject matter, and that there was no diversity of citizenship in that Plaintiff and three of the Defendants appeared on the face of the pleading to be residents of Wisconsin.
Plaintiff then moved to amend that order by vacating it as to the Railroad and the Brotherhood and by allowing Plaintiff to file an amended Complaint against the Railroad and the Brotherhood. The amended Complaint, which Plaintiff sought to file, alleged diversity of citizenship only between Plaintiff and the Railroad. The prayer for relief was similar to that in the original Complaint.
The District Court denied the motion. It is from that denial that Plaintiff appeals.
Although Plaintiff refers to a contract, the sole indication of its terms consists of his Exhibit A, a Memorandum of Agreement between the Railroad and the Brotherhood, attached to the proposed amended Complaint. This Agreement provides that during the first 45 days of active service, an employee will be considered "temporary" and that status as a "permanent" employee begins only after 45 days of temporary service. Plaintiff alleges no consideration for his employment as a fireman other than the stipulated wage for his services as rendered. In such circumstances, where there is nothing to fix the...
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