"That he had been in the railway business as fireman and switch engineer for about 25 years. That in 1902 he came to Palestine and went to work for the International & Great Northern Railway in his said position. That he had never had any charges filed against him, and had never been discharged from any railway service in his life, and that he was thoroughly satisfying and satisfactory to the railway company and to the receiver, and that he was giving satisfactory service, and that there had never been any difference or disagreement between him and his employer. That his employer was not objecting in any way whatsoever to him, or to his service. That he was a member of the Brotherhood of Locomotive Firemen and Enginemen, and had so been for more than 20 years. That the Brotherhood of Locomotive Firemen and Enginemen was a voluntary association with a right to do business in Texas, with its head office and place of business in Cleveland, Ohio. That the defendant Brotherhood of Locomotive Engineers was likewise a voluntary association with the right to do business in Texas, and with its head office and place of business in Cleveland, Ohio. That the defendants W. S. Carter and W. S. Stone were respectively the heads of said organizations. That the defendants M. E. Montgomery and C. V. McLaughlin were, respectively, the assistant chief and the vice president of said organizations. That the defendant R. C. Dunlap is the general chairman of the grievance committee of the B. of L. F. & E. for the I. & G. N. Railway, and an agent of said brotherhood. That the defendant B. P. Myers is the master mechanic of the I. & G. N. at Palestine. That the defendant M. Milton is the secretary and agent of the local lodge of B. of L. E. at Palestine, and that the defendant C. R. Wahlers is the local chairman and agent of the B. of L. F. & E. at Palestine. That the defendant T. E. Lord is the General Chairman of the Grievance Committee of the B. of L. E. That the I. & G. N. Railway Company, through its receiver, has an agreement with and uses union men, and that such union men are members of the B. of L. E. and B. of L. F. & E., and that it works and employs as engineers and firemen in its switchyards at Palestine only such men as belong to said organizations. That since the year 1915, and particularly during the years 1920 and 1921, the receiver and the railway had and kept an agreement with the said two organizations of railway operatives, a copy of which agreement was attached to the plaintiff's petition. That the railway and its receiver and agent and employees are guided and controlled in the matter of its employees and hours and seniorities by said agreement between the railway and its receiver and the said unions, and that the said railway and its receiver are guided and controlled as to seniorities of its engineers and firemen and switch engineers by the orders of the said union organizations.
"That prior to 1913 the B. of L. F. & E. was the union which furnished the firemen on the I. & G. N. in the Palestine division, and the engineers who operated switch engines in the switchyards of said railway in Palestine. That the B. of L. E., prior to 1913, was the union which furnished engineers on the locomotives used on the I. & G. N. Railway on the road and outside of the switchyards. That in 1913 these two unions made a joint agreement whereby the jurisdiction over switch engineers, effective July 1, 1913, was to be turned over to the B. of L. E. That simultaneously with such turning over the B. of L. F. & E. was to furnish to the B. of L. E. a list of switch engineers in the order of their seniority, one man for each job. That this joint agreement was to become effective upon the American railways as such different railway systems adopted it, and that it in fact became effective and operative on the I. & G. N. Railway in October, 1918. That such joint agreement so effective was a part of the agreement between the I. & G. N., through its receiver, and the said unions, B. of L. F. & E. and B. of L. E., and was a vested right of the appellant, and a property right belonging to him and fixing his status, and for which he had given a consideration, and that such agreement could
not be abrogated or changed without his consent, which he had not given. That prior to such agreement of 1913, and prior to its adoption by the receiver of the I. & G. N. in 1918, the B. of L. E. had no jurisdiction or supervision over the B. of L. F. & E.
"That prior to 1913, and all of the time from then up. to October, 1918, he was operating a switch engine in the Palestine division of said railway, and as such switch engineer and firemen he had the right to go out upon the road at a higher and increased compensation, but that he gave away such right for and in consideration of the right to become what was known as a `fixture.' That at the time of the taking effect of said joint agreement on the I. & G. N. in October, 1918, he was a fireman, and there was offered to him by the said unions, as a condition precedent to the taking of jurisdiction over the Palestine switchmen by the B. of L. E., the right to become a `fixture' in said switchyards, who could not be `bumped,' or displaced, by any road engineer who might conclude to quit the road and come into the switchyards, and that such offer was made to him in writing by said unions, and that he accepted such privilege and right, and be- same sixth in a list of 12 `fixtures,' who could not be displaced by road engineers. That being sixth on said `fixtures' left but five who were ahead of him in the right to have positions in the switchyards with advantageous hours, and that as a result thereof he was performing his eight hours per day in the daytime. That such `fixture' agreement and contract and understanding was approved by the Grand lodge officers, and by the general chairman of the two unions, and that as a result thereof he was working at a day position in said yards from 8 o'clock in the morning to 4 o'clock in the afternoon. That such hours were suited to his age and physical condition, and that he was giving thorough satisfaction to his employer and to his associates, and that no one was objecting or complaining, but that on November 5, 1920, without any cause whatsoever, but merely for the purpose of giving the position which he held to road engineers, giving their names, who wished to have switchyard positions, the unions caused the appellant to be displaced or `bumped' from said position to night positions, when it was necessary for him to go to work at midnight and work until 8 o'clock in the morning. That such hours of labor were quite undesirable, that they were difficult and hazardous, and, since the appellant was about 50 years of age, and nervous and subject to stomach disorders, that the same had interfered with his health and sleep, and had greatly damaged him in seriously and irreparably undermining his health. That it was necessary that he have regular hours of sleep and that he have such sleep in the nighttime, and that the midnight position broke into his hours of rest and injured his health. That the midnight position was of less pecuniary value, receiving much less pay, and that the loss was approximately $40 a month. That the railway and its receiver were quite willing and ready to replace the appellant in his original position, and would do so if allowed to do so by the said unions, but that the said unions persisted in an unjust position and attitude to prevent the appellant from keeping and having his said advantageous position as a `fixture.' That the said unions had ordered the railway to displace the appellant with said road engineers. That his right to become and remain a `fixture' over the said number was purchased by him, and was a right vesting in him from the consolidation of his union with the B. of L. E., and by his giving over his right to go on the road, and that there was no power or authority to divest him of said property right. That he was a man of family, owning his own home and residence in Palestine. That he knew no other business than said railway business. That he had spent nearly 25 years in that business, and that the right to remain in the employ of said railway so long as it was satisfactory to said railway in the said business was invaluable to him. That when said displacement and injustice took place he appealed to the councils of his unions as provided by the constitution and by-laws of the said unions, but that the said unions had fraudulently and purposely refused to undo the wrong or to replace him, but had persisted and continued in their orders and determinations to deprive him of said property rights and of said position which he had earned and which was his."
