Louisville & N.R. Co. v. Offutt

Decision Date12 June 1896
Citation99 Ky. 427,36 S.W. 181
PartiesLOUISVILLE & N. R. CO. v. OFFUTT.
CourtKentucky Court of Appeals

Appeal from circuit court, Warren county.

"To be officially reported."

Action by James T. Offutt against the Louisville & Nashville Railroad Company for breach of a contract of hiring. From a judgment for plaintiff, defendant appeals. Reversed.

J. A Mitchell, H. W. Bruce, and Wm. Lindsay, for appellant.

E. W Hines, Sims & Covington, and H. B. Hines, for appellee.

LANDES J.

The appellee, having been employed for a number of years as brakeman and freight conductor by the appellant on its road from Bowling Green, Ky. to Nashville, Tenn., was discharged in the month of April or May, 1890, for violating some of the rules of the company. Early in the month of July following there was a pending strike among the trainmen of the company at Wilder's Station, near Cincinnati, Ohio, when it became necessary for the company to procure men to take the place of the strikers, in order that it might be enabled to handle its freight traffic promptly. For this purpose, one W J. Stewart, who was at the time a "detective" or "special agent" in the employment of the company, was sent by Mr. Metcalfe, the general manager, to Bowling Green, and, under special authority conferred upon him by the general manager, proposed to hire the appellee to go to Wilder's, and work for the company in moving its trains, which had been stopped by reason of the strike, offering him $5 per day and his expenses for the time he might be thus employed. The appellee accepted this special employment, went to Wilder's on transportation furnished him by the company, worked for the company for two or three days, returned to Bowling Green after the trouble with the strikers was settled, and was paid for the whole time he was absent, including the days of his actual service, making eight days in all, the sum of $40. The appellee claims that, at the time he accepted the employment for the special service referred to, he asked Stewart that he might be restored to the position in the service of the company from which he had been discharged as above stated, and that Stewart then and there promised and contracted with him, in substance, that he should be restored to the position, and that he should keep it so long as he did faithful and honest work for the company. He claims that the same contract was made with him also by G. E. Evans, who was the superintendent of transportation in the service of the company, and whom he met at Wilder's, and subsequently, after the special employment was terminated, by Mr. Kellohn, who was the assistant general manager of the company. But each of these men denied in his testimony that he made any such bargain or contract with him; and it appears from the testimony of both Stewart and Evans that they had no authority to make any such contract for the company; that such authority did not appertain to the positions which they held; but that the employment of men for such regular service of the company was within the purview of the authority and duties of the division superintendents and their superior officers. But it appears from the evidence that the appellee was kept on the pay roll as freight conductor, with directions to wait until a place could be found for him, and that, besides the $40 paid to him for said special service, he received $46 as the balance of his pay for the month of July, and $80 for the month of August, and that on the 26th day of September, 1890, he received formal notice from the company that he would be allowed no more time, which was equivalent to a discharge from the service of the company.

This suit was brought by the appellee on the 11th day of October 1890, to recover pay for the time, to the 26th day of September, for which he had received no pay, and the sum of $10,000 damages for breach of the alleged contract for regular or permanent employment. There is no controversy between the parties as to the special employment of the appellee by Stewart for service at Wilder's, or as to the pay he was to receive, and did receive, therefor. But the alleged contract for regular employment is stated in the petition to have been made at the time the contract for the special service was made, and is set forth in these words, viz.: "*** And at said time the said defendant further agreed and promised and contracted with this plaintiff that when said strike was ended, and the regular trainmen returned to their work at said points, it would give to said plaintiff regular work as freight conductor on its road from Bowling Green, Kentucky, to Nashville, Tennessee, and would restore him to his old crew with which he had worked prior to his going to the state of Ohio, and that said regular work would continue so long as this plaintiff did faithful and honest work for the defendant." In an amended petition, the same statement of the alleged contract was substantially made, with this addition, viz.: "*** And that, as his compensation for such work, they would pay him at the rate of $95.00 per month, which said sum of $95.00 they agreed and promised to pay him monthly." The allegations of the petition and amendments were denied by the answer, and the issue thus made was tried before a jury in the court below in June, 1891; and, upon a verdict in favor of the appellee for $575, a judgment was rendered, which was reversed on appeal to the superior court, and the case sent back for a new trial. The second...

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    ...whom and on what terms they will work. Local Union 313 vs. Stathakis, (Ark.) 6 A. L. R. 894; In re Jones, 78 Colo. 80; Louisville Company v. Offutt, (Ky.) 36 S.W. 181; Boyer v. Company, 124 F. 246. Courts will not a man to serve another against his will, nor compel an employer to retain one......
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    ...employment and that if the parties had intended otherwise, the agreement would have included other provisions.19 Louisville & N.R. Co. v. Offutt, 99 Ky. 427, 36 S.W. 181 (1896), involved a strikebreaker who claimed he was promised that, after the strike ended, he would be reinstated in a po......
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  • Boatright v. Steinite Radio Corp., 266.
    • United States
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    • February 12, 1931
    ...1915D, 221; Roddy v. United Mine Workers of America, 41 Okl. 621, 139 P. 126, 127, L. R. A. 1915D, 789; Louisville & N. R. Co. v. Offutt, 99 Ky. 427, 36 S. W. 181, 59 Am. St. Rep. 467; Williston on Contracts, vol. 1, § 39; 39 C. J. p. 71, § 60. A contract of employment, which provides that ......
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