Kowalski v. McAdoo

• Decision Date: 11 July 1919
• Parties: KOWALSKI v. McADOO, Director General of Railroads.
• Court: New Jersey Supreme Court

107 A. 477

KOWALSKI

v. McADOO, Director General of Railroads.

Supreme Court of New Jersey.

July 11, 1919.

Appeal from District Court of Jersey City.

Action by Anthony Kowalski against William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued June term, 1919, before BERGEN, KALISCH, and BLACK, JJ.

Vredenburgh, Wall & Carey, of Jersey City, for appellant.

I. F. Goldeuhorn, of Jersey City, for appellee.

KALISCH, J. The question growing out of the facts of this case is whether the plaintiff, who, being in the employ of the Pennsylvania Railroad Company, having been arrested and convicted in a police court of Jersey City, upon a complaint alleging that he stole a pair of shoes from a car of his employer, and as a consequence of the accusation was detained in jail six or seven days awaiting a trial, can properly be charged with having left his employer's service voluntarily, and thus be debarred from recovering the wage increase provided by the defendant to be effective from January 1, 1918.

From the evidence in the case it appears that the plaintiff had worked for the railroad company about seven years. This particular employment from January 1, 1918, to May 15, 1918, was that of a gang leader. He was paid 32 cents an hour, and he worked 12 hours a day, including Sundays.

By virtue of General Order No. 27, dated May 25, 1918, and Supplement No. 4, dated July 25, 1918, issued by defendant, Director General of Railroads, the plaintiff claimed in the court below the increase to 58 cents an hour as the wage to be paid according to the order.

The provision of supplement No. 4 is as follows:

"The increase in wages and the rates established shall be effective as of January 1, 1918, and are to be paid according to the time served to all who were in the railroad service, or who have come into such service, and remained therein. A proper ratable amount shall also be paid to those who for any reason since January 1, 1918, have been dismissed from the service, but shall not be paid to those who left it voluntarily."

The only point made and contended for by counsel of appellant in the court below and now here was, and is, that the plaintiff has disentitled himself to any of the increase of wages from January 1, 1918, to May 15, 1918, because the plaintiff on May 15, 1918, was arrested and locked up for an alleged theft of the goods of his employer, and that this in effect was a voluntary leaving by the plaintiff of his employment.

The general tenor of the argument urged upon us to sustain this contention is that to permit the plaintiff "to recover retroactive back pay granted by the sovereign power as a reward for loyal service after that employe has robbed his sovereign" would practically allow "the plaintiff to take advantage of his own wrong and to found a claim upon his own iniquity."

There is no pretense that the plaintiff did not render loyal and efficient service to his employer from January 1, 1918, to May 15, 1918, before he committed the alleged theft. The fact that he was arrested and locked up on a criminal charge was wholly without any significance, unless it was shown that the plaintiff created the situation for the purpose of abandoning the employment of the railroad company. And this does not appear from the evidence. But, on the contrary, it appears that the plaintiff's arrest was caused by the railroad...