McGee v. St. Jos. Belt Ry. Co.

• Decision Date: 06 April 1936
• Docket Number: No. 18576.,18576.
• Citation: 93 S.W.2d 1111
• Parties: F.W. McGEE, RESPONDENT, v. ST. JOSEPH BELT RAILWAY CO., APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 1111

F.W. McGEE, RESPONDENT, v. ST. JOSEPH BELT RAILWAY CO., APPELLANT.

No. 18576.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from the Circuit Court of Buchanan County. — Hon. Sam Wilcox. Judge.

AFFIRMED.

Randolph & Randolph and Nile L. Vermillion for respondent.

Brown, Douglas & Brown for appellant.

SHAIN, P.J.

This is a suit for damages wherein the plaintiff's action is based upon an alleged breach, by defendant, of a contract of employment which, by its terms provided a working agreement between the defendant and representatives of a brotherhood of railroad employees of which plaintiff was a member.

The agreement in issue was negotiated on March 10, 1928. The agreement was signed by J.O. Barclay, who was then president of the defendant company, and was signed on behalf of the brotherhood yardmen by C.W. Shane, general chairman, and C.M. Banman, general secretary, and approved by F.W. McGee, secretary.

As the question herein involves seniority rights of the yardmen, we include clauses of the agreement that we conclude are most pertinent to the issue. Paragraphs (a) and (b) of Article XI are as follows:

"(a) Seniority rights of yardmen shall date from the day they first perform service in the yard as yardmen.

"(b) The right to preference of work and promotion will be governed by seniority in the service, the yardmen oldest in the service will be given preference if competent, but if considered not competent, he will be advised in writing if a letter is requested."

Article XIII is as follows:

`A correct seniority list shall be furnished the local chairman every six months, and a copy posted in the yard office to which yardmen shall have access at all times, and local chairmen shall be notified of all names removed from the list and cause of such removal."

Paragraphs (g) and (m) of Article XIV are as follows:

"(g) Yardmen will not be suspended or dismissed from service without cause. Yardmen suspended or dismissed will be given a hearing within five days, if application for a hearing is made in writing to the superintendent or general manager. At the hearing the yardman can be represented by any person of his choice. If suspension or dismissal is found unjust, he will be reinstated and paid for all time lost.

"(m) This agreement supercedes all previous agreements and shall be in effect until March 10, 1929, and thereafter subject to thirty days' notice by either party to the other of a desire to change or terminate the same or any party thereof."

The plaintiff herein entered the employment of the defendant as a yardman on November 7, 1918, and asserts his seniority rights as based on said date. Seniority rights under the agreement provides a preference in which the yardmen are to be called for service and permitted to work.

The plaintiff pleaded breach of the agreement as follows:

"Plaintiff further states that while said contract was in full force and effect, and in violation of said contract, and in violation of the first clause of Section 2 of Act of the 69th Congress of the United States known as `Railway Labor Act' which act requires of the defendant, its officers and agents that they exert every reasonable effort to make and maintain agreements with employees concerning working conditions, the defendant did on the 10th day of October, 1930, put into force and effect a changed, altered and modified seniority list, on which seniority list plaintiff's name appeared twenty-eighth in the order thereof and so far down on said seniority list from and after said date, that plaintiff has been deprived of the right to work in the order his prior seniority had entitled him to; that if the seniority list as it existed prior to October 10, 1930, had been maintained in force and effect by the defendant, plaintiff would have at all times from and after October 10, 1930, been entitled to work each and every day thereof at the rate and pay hereinbefore stated and would have earned the sum of Six Thousand One Hundred Sixty Three Dollars and Four Cents ($6163.04).

"Plaintiff states that by reason of the wrongful acts of defendant aforesaid, he has been deprived of an opportunity to work and that he has only been able to earn since said time the sum of Five Hundred Dollars ($500.00), although the plaintiff has made every reasonable and diligent effort to secure work; that by reason of the premises aforesaid, plaintiff has been damaged in the sum of Fifty Six Hundred Sixty-three Dollars and Four Cents ($5663.04)."

The defendant first filed a demurrer to plaintiff's petition, same being overruled the defendant joined issue by answer. The defendant in its answer admits that it entered into the contract of March 10, 1928, and embraces in its answer paragraph (m) of Section XIV (same set out in full above). However, concerning the said agreement, the defendant specifically denies, "that at any time it entered into such a contract with Local Lodge, Number Ninety-two or its duly constituted representatives, which was binding upon the plaintiff or which became terms if any contract of employment between the plaintiff and defendant." (Italics ours.)

The defendant further pleading states as follows:

"The defendant further states that the contract or agreement last mentioned was terminated and abrogated by Local Lodge Number Ninety-two Brotherhood of Railroad Trainmen, acting by and through its regularly constituted representatives, on or about the Tenth day of October, 1930, since which date said contract has been of no force and effect; that if said contract so terminated on or about the Tenth day of October, 1930, was ever binding upon the plaintiff or constituted any part of any contract of employment between him and the defendant, the same was terminated and abrogated as aforesaid by action of the same Local Lodge Number Ninetytwo, and its duly constituted representatives who made and entered into the same, and if said Lodge and its representatives had authority to, and could bind and contract for the plaintiff, which the defendant denies, its action in terminating said interest would also be binding upon the plaintiff.

"Further answering, the defendant states that while it did not change, alter, modify or put into effect any modified seniority list on the Tenth day of October, 1930, or any other date, as alleged in plaintiff's petition, said Local Lodge Number Ninety two Brotherhood of Railroad Trainmen, of which plaintiff was and is a member, did on or about that date, and assuming and representing to act on behalf of and with authority to bind the plaintiff, adopt and furnish to the defendant a revised and consolidated seniority list, consolidating into one list the names of all yardmen then working for the defendant and Union Terminal Railway Company, another railroad corporation of St. Joseph, Missouri, whose railroad operations were, with the consent of said Local Lodge Number Ninetytwo, and its representatives, consolidated with the railroad operations of the defendant.

"The defendant further states that the plaintiff ratified and adopted the action of said Local Lodge Ninetytwo and its representatives, to bind the plaintiff to act for and in his behalf, and recognized and admitted the authority of said Local Lodge Number Ninetytwo and its representatives, to bind the plaintiff in that regard, in that the plaintiff appealed in accordance with the rules and regulations pertaining to appeals in Brotherhood of Railroad Trainmen to the highest authority in said organization having jurisdiction and control over said Local Lodge Number Ninetytwo, and on said appeal the roster of employee and consolidated seniority list above referred to, so adopted and promulgated by said Local Lodge Number Ninetytwo, were upheld and affirmed and plaintiff's appeal therefrom denied.

"The defendant further states that from and after the prosecution and determination of the plaintiff's said appeal, referred to in the last paragraph hereof, the plaintiff continued to work for the defendant when his services were required as an `extra' employee or `extra board man,' and during such time and when services of extra board yardmen were required, the defendant offered employment to the plaintiff in the order of rotation provided for in said consolidated seniority list so fixed, established and promulgated by and at the instance of said Local Lodge Number Ninetytwo Brotherhood of Railroad Trainmen.

"Further answering, the defendant states that there never did exist any contract, written or oral, between the plaintiff and the defendant providing for any term or duration of employment of the plaintiff by the defendant, and that the plaintiff was at all times at liberty to terminate any such employment at will, and that the plaintiff never did have any contract of employment with the defendant of any specified duration or to continue longer than plaintiff's services were satisfactory to and required by the defendant.

"Further answering, the defendant states that by the act and consent of the plaintiff under the circumstances herein recited, he recognized the authority of the constituted representatives of Brotherhood of Railroad Trainmen to promulgate a revised and consolidated seniority list, and that by his action and conduct in prosecuting an appeal to the highest authority in said Brotherhood he recognized the jurisdiction and authority of such Brotherhood and its representatives to act in the premises, and that by his act and conduct in responding to subsequent requests by the defendant to work for it when his services were needed in the rotation established by such seniority list, he accepted and acquiesced in the provisions thereof and conditions thereby created, and that by his long continued acquiescence therein he is estopped to deny that he is bound thereby, and is estopped to maintain and prosecute this action."

Upon the issues so made up, there was a trial had before a jury which...