Kordewick v. Indiana Harbor Belt R. Co.

• Decision Date: 13 January 1947
• Docket Number: No. 9120.,9120.
• Parties: KORDEWICK et al. v. INDIANA HARBOR BELT R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

157 F.2d 753 (1946)

KORDEWICK et al. v. INDIANA HARBOR BELT R. CO.

No. 9120.

Circuit Court of Appeals, Seventh Circuit.

October 19, 1946.

Rehearing Denied November 6, 1946.

Writ of Certiorari Denied January 13, 1947.

Gotthard A. Dahlberg and Sarsfield Collins, both of Chicago, Ill., for appellant.

Sidney C. Murray, Marvin A. Jersild and Victor L. Lewis, all of Chicago, Ill., for appellee.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

Writ of Certiorari Denied January 13, 1947. See 67 S.Ct. 502.

KERNER, Circuit Judge.

This action was brought by plaintiffs to recover money claimed to be due them by reason of defendant's violations of the provisions of a contract relating to plaintiffs' employment. Jurisdiction rested upon diversity of citizenship and the requisite amount in controversy. From a judgment dismissing the complaint on motion of defendant, the plaintiffs appeal.

The complaint in substance alleged that prior to August 13, 1926, a written agreement pertaining to wages, hours and working conditions was entered into by the General Managers Committee, representing various railroad corporations, and the Brotherhood of Railroad Trainmen. The complaint further alleged that plaintiffs were members of the Brotherhood and that as yardmen employees of defendant they were entitled to all the benefits of the agreement; that violations of the agreement began August 13, 1926, and ended on December 12, 1938; and that as a result thereof, some of the plaintiffs were deprived of a "minimum day" and others were required, in addition to their own work, to perform the work of those plaintiffs who had been deprived of their "minimum day."

In support of the motion to dismiss, defendant asserted inter alia that the action was barred by the five-year Statute of Limitations, ch. 83, § 16, Ill.Rev.Stat.1945. That section provides: "Actions on unwritten contracts, expressed or implied, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued."

Plaintiffs, however, contend that their action is an action for the breaching by defendant of the terms of the written agreement between the Committee representing the railroads and the Brotherhood, and they cite § 17 of the Statute of Limitations which provides in part as follows "Actions on * * * written contracts * * * shall be commenced within ten years next after the cause of action accrued." The question is whether plaintiffs' cause of action is based upon a written contract.

This is an action to recover wages; hence there can be no question that the law of Illinois governs its disposition, Huddleston v. Dwyer, 322 U.S. 232, 64 S.Ct. 1015, 88 L.Ed. 1246; Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 160 A.L.R. 1231, 89 L.Ed. 2079, and we must apply state statutes of limitations in accordance with the interpretations given to such statutes by the states' highest courts. Moore v. Illinois Central Railroad Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089.

Many years ago the Supreme Court of Illinois said: "A contract cannot be said to be in writing unless the parties thereto, * * * can be ascertained from the instrument itself. If the party to a written contract is not named therein, * * * the agreement is only partly reduced to writing, because parol proof must be resorted to in order to show with whom the bargain was made." The Railway Passenger & Conductors Benefit Ass'n v. Loomis, 142 Ill. 560, 567, 32 N.E. 424, 426. And in Mowatt v. City of Chicago, 292 Ill. 578, 582, 127 N.E. 176, 177, the court, after saying "that a written contract is one in which all of its terms are in writing; that a contract partly in writing and partly oral is in legal effect an oral contract," held that if parol evidence must be introduced to sustain the action the contract is not in writing under § 17 of the Statute of Limitations. See also Novosk v. Reznick, 323 Ill. App. 544, 551, 56 N.E.2d 318, and Orminski v. Hyland Electrical Supply Co., 326 Ill. App. 392, 62 N.E.2d 14; Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co., 7 Cir., 111 F.2d 875, cited by plaintiffs, is not opposite.

As we have observed, the contract upon which plaintiffs rely was entered into between the General Managers Committee and the Brotherhood of Railroad Trainmen. The complaint was filed on November 9, 1945. The claimed violations began August 13, 1926, and ended on December 12, 1938. Plaintiffs are not named in the contract and parol evidence would be necessary, therefore, to show the existence of any contractual relationship between plaintiffs and defendant, and to show that plaintiffs are or were at any time employed by defendant, and if plaintiffs had been employed by defendant, parol evidence would be necessary to show that plaintiffs had been employed in the type of work covered by the agreement between the Brotherhood and the Committee. Under these circumstances, we must hold that...