Ledford v. Chicago, M., St. P.&P.R. Co.

• Decision Date: 30 January 1939
• Docket Number: Gen. No. 40128.
• Citation: 298 Ill.App. 298,18 N.E.2d 568
• Court: United States Appellate Court of Illinois
• Parties: LEDFORD ET AL. v. CHICAGO, M., ST. P. & P. R. CO. ET AL.

298 Ill.App. 298

18 N.E.2d 568

LEDFORD ET AL.

v.CHICAGO, M., ST. P. & P. R. CO. ET AL.

Gen. No. 40128.

Appellate Court of Illinois, First District, First Division.

Jan. 16, 1939.

Rehearing Denied Jan. 30, 1939.

Appeal from Circuit Court, Cook County; John Prystalski, Judge.

Suit in equity by George W. Ledford and others against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company and others for an accounting and injunction. From a decree of dismissal, plaintiffs appeal.

Reversed and remanded, with directions. Soelke, Koehn & Loewy, of Chicago, for appellants.

Bruce S. Parkhill, M. L. Bluhm, and C. S. Jefferson, all of Chicago, for appellees.

MATCHETT, Justice.

Plaintiffs, on August 19, 1937, filed a complaint which was stricken on motion of defendants. By leave of court an amended complaint was filed. Defendants again moved to strike. Their motions were granted and the suit dismissed for want of equity.

From the amended complaint it appears plaintiffs (9 in number) were at times between August 5, 1925, and October 14, 1926, employed by the defendant railroad, or its predecessor (common carriers engaged in intra and interstate commerce), to serve as switchmen at its terminal yards in Chicago and at Bensonville, Illinois. Plaintiffs are skilled in such service, have devoted their lives thereto and are without other trade or calling. Continuously for years prior to and up to the time they entered upon this service there was in force and effect as to switchmen a general custom, usage and practice known as a system of seniority rights. This system became a part of plaintiffs' contracts of employment, was relied on, and established in the plaintiffs vested property rights. The railroad maintained a “Seniority Roster” showing the names of switchmen employed and the date of employment in the order of seniority. Switchmen who had served longest were entitled to appear thereon prior to employees whose hiring was subsequent. Under this system, after lay-offs by reason of slackness of work, upon resumption of work assignments were made from this roster and employees shown to be longest in service enjoyed a prior claim to be called to resume work superior to employees of the same class who were junior in service. At the time plaintiffs entered the service they had knowledge of this system, relied on it, were thereby induced to enter the employment and upon the dates entering into service, by mutual agreement the rights and benefits accruing to them under the system became an integral part and condition of the terms of their contracts. By this system plaintiffs were assured by the employer of the right to work as switchmen until they should attain the age of retirement under the Federal Pension Laws so long as they were available, ready, willing, capable and competent, subject only to possible lay-offs. Their employer further assured plaintiffs they would not be discharged except for cause.

The amended complaint avers that as their time of service lengthened the seniority rights of plaintiffs became more valuable in that opportunities for promotion were improved, the amount of pension to which plaintiffs would become entitled under the statutes of the United States was increased, and in consequence the seniority rights of plaintiffs became vested, valuable and continuing property rights of inestimable value.

The amended complaint specifically avers these seniority rights were not dependent upon membership in a labor union and that no working rule, express or implied, existed which required them to be or become or continue to be members of any labor organization. These seniority rights were recognized by the defendant railroad up to July 19, 1935. Plaintiffs have never quit their employment, have not been discharged or dismissed, but on that date were laid off only because of slackness of work. They have never been recalled although at all times available, ready, willing and competent, and although such work has since become available.

The amended complaint describes the seniority roster in detail, effective as of the dates of original employment, avers that the roster is in the possession of the employer and not available to plaintiffs. The amended complaint makes defendants the railroad, certain named members and officers of the Brotherhood of Railroad Trainmen, being officers and members of Majority Lodge No. 119 of the union, and avers on information and belief that because plaintiffs are not members of the Brotherhood they are subjects of its ill will and disfavor, and that these particular defendants, intending to deprive the plaintiffs of their right to work and with the intention to cause the employer to unfairly discriminate against them and in favor of members of their union who are junior to plaintiffs in point of service and in the matter of seniority rights, “by divers unfair arts, devices, threats and arguments, in divers meetings with said employer,in the absence of plaintiffs, unlawfully coerced and persuaded said employer, and wilfully and unlawfully combined, conspired and confederated together with said employer, its officers and agents, at divers times and places, unknown to plaintiffs, but since July 19, 1935, to deprive and defraud plaintiffs of their employment contract and their seniority rights, and to totally destroy plaintiffs' right to work and to their said seniority rights, to the great pecuniary loss and injury and prejudice of the plaintiffs.”

The amended complaint avers that soon after July 19, 1935, it became expedient for the defendant railroad to employ more switchmen at the Chicago Terminal; that an opportunity for such work existed and still exists there, but that, pursuant to the conspiracy described and in furtherance of it, the employer has ever since July 19, 1935, failed to recall any of the plaintiffs to work although they were entitled to be called under the system of seniority rights and were and still are available, ready, able and willing, etc.; that the employer, yielding to coercion, breached its contract of employment with plaintiffs and filled the positions formerly occupied by plaintiffs with switchmen who are junior in point of service, and defendants threaten and will continue this unfair discrimination unless restrained. In furtherance of the conspiracy, after plaintiffs were last laid off, the employer published a pretended roster affecting its switchmen and falsely and unfairly omitted any mention of plaintiffs' seniority rights. This roster is in the possession of the employer and therefore cannot be further described.

There are also recited at length unavailing efforts of plaintiffs to obtain redress, stating they have exhausted all reasonable efforts at conciliation and that equitable relief is the only adequate remedy; that plaintiffs have been deprived of continuous employment since October 17, 1935, which they would have had but for this unlawful discrimination and have lost average earnings of $176.76 per month, and have been compelled to seek and subsist on relief.

The prayer is that all switchmen employed at the Chicago Terminal since July 19, 1935, may be made parties; that their seniority rights may be determined and proper administration thereof provided; that the court will assume jurisdiction and construe plaintiffs' rights and agreements; that an account may be taken and a decree rendered for the amounts due to each of plaintiffs and that the writ of injunction issue against the defendant railroad commanding it to recognize the seniority standing of plaintiffs; that pending a final hearing a temporary injunction issue; that the members of the union and its officers, Hogan, Murphy and Michel, individually and as officers, may be enjoined from preventing the restoration of plaintiffs to their proper places on the roster, and that other and further relief may be granted.

In their motions to dismiss defendants specify as reasons therefor that the alleged seniority rights are not property rights such as will be enforced by a court of equity; that the plaintiffs seek to enforce a contract for personal service which cannot be done because of want of mutuality of remedy in the parties, because plaintiffs have an adequate and complete remedy at law, and because the cause of action is predicated upon an agreement for collective bargaining between the defendant railroad company and the Brotherhood of Railroad Trainmen, which provides for a method of settling disputes, which plaintiffs did not follow prior to bringing suit.

The Civil Practice Act has modified the practice in courts of equity. Section 33 (3) of the act, Ill. State Bar Stat.1937, chap. 110, p. 2389, § 157(3), provides that pleadings shall be liberally construed with a view to substantial justice; section 45 (1), Ill. State Bar Stat.1937, p. 2395, c. 110, § 169 (1), that all objections to pleadings heretofore raised by demurrer shall be raised by motion, and such motions shall point out specifically the defects complained of and shall ask for such relief as the nature of the defects may make appropriate, such as the dismissal of the action or the entry of the judgment where a pleading is substantially insufficient in law, or that a pleading be made more definite and certain in a specified particular, or that designated immaterial matter may be stricken out, or that necessary parties may be added, or that designated misjoined parties be dismissed, etc.; section 45(2), that where a pleading or division thereof is objected to by motion to dismiss, or for judgment, or to strike out the pleading because it is substantially insufficient in law, the motion must specify wherein such pleading or division thereof is insufficient; section 42 (1), Ill. State Bar Stat.1937, c. 110, § 166 (1), that if any pleading is insufficient in substance or form the court may order a more particular statement, and if the pleading does not sufficiently define the issues the court may order other...