McGee v. St. Joseph Belt Ry. Co.

• Decision Date: 27 November 1937
• Citation: 110 S.W.2d 389,232 Mo.App. 639
• Parties: F. W. McGEE, APPELLANT, v. ST. JOSEPH BELT RAILWAY CO., RESPONDENT
• Court: Kansas Court of Appeals

110 S.W.2d 389

232 Mo.App. 639

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

Court of Appeals of Missouri, Kansas City

November 27, 1937

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

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Randolph & Randolph and Nilas Vermillion for appellant.

Brown Douglas & Brown for respondent.

OPINION

BLAND, J.

Plaintiff is employed by the defendant as a switchman at its railroad yards in St. Joseph, Missouri. He brought this action upon a contract entered into between the local Lodge of the Brotherhood of Railway Trainmen, of which plaintiff is a member, and the defendant. The particular part of the contract alleged to have been violated relates to plaintiff's rights of seniority. The case comes here as a result of the action of the trial court in sustaining defendant's motion for a judgment upon the pleadings, after the filing, by plaintiff, of his reply.

The contract in question provided that the right of preference of work and promotion should be governed by seniority in the service; that a correct seniority list should be furnished the local chairman every six months and a copy posted in the yard office to which the yardmen should have access at all times; that the yardman oldest in the service should be given preference, if competent, and if considered incompetent he should be advised in writing if a letter was requested; that yardmen should not be suspended or dismissed from service without cause and in case of suspension or dismissal he should be given a hearing; that the agreement should be in effect subject to thirty days' notice by either party of a desire to change or terminate said contract or any part thereof.

On December 15, 1933, plaintiff brought suit against the defendant alleging, among other things, that while said contract was in full force and effect, and in violation of its terms, defendant, on October 10th, 1930, changed and altered the seniority list so that plaintiff's name was wrongfully placed so far down that he was deprived of an opportunity to work in the order to which he was entitled; that if defendant had maintained the seniority list as it should have been maintained plaintiff would have been entitled to work each and every day after October 10, 1930. Plaintiff, in that suit, recovered a verdict and judgment in the sum of $ 4700, which judgment was affirmed upon appeal to this court. [See McGee v. St. Joseph Belt Ry. Co., 93 S.W.2d 1111.]

Subsequently, on July 31, 1936, plaintiff commenced the present action, alleging, in substance, that said contract was still in force and effect, claiming further breaches of it, making similar allegations as contained in his petition in the first suit and asking for damages in the sum of $ 5,091.96, the amount of earnings that plaintiff lost since the filing of the first suit.

Defendant filed its answer in which it set out the petition, the answer and judgment in the prior suit and pleaded that said judgment was a bar to the present action, and alleging that plaintiff had not been in the employ of the defendant since December 15, 1933 and had performed no service of any kind or character for it since said date.

The reply alleges that the judgment in the prior suit was not a bar to this suit for the reason that the contract was a continuing one, requiring defendant to call plaintiff to work in the order of his seniority each and every day while said contract remained in force and effect; that the damages recovered in the previous suit were not a bar to the recovery of damages in the present action because the previous action was only for damages suffered for failure to call plaintiff to work prior to December 15, 1933; that the previous action was not one for a total breach occasioned by the termination of the contract, or for discharge of plaintiff under said contract, but was occasioned by the failure on the part of the defendant to provide the plaintiff the right and opportunity to work in the order of his seniority from and after the 15th day of December, 1933 (or the date of the filing of the first suit.)

Thereupon, defendant filed its motion for judgment upon the pleadings, which, as before stated, the court sustained.

The sole question presented upon this appeal is whether the judgment in the former case bars a recovery in the present one, defendant contending that to permit a recovery in the present action would be violative of the rule against splitting a cause of action. Of course, the rule is well settled that a claim or demand cannot be split up or divided so as to be made the subject of different actions. [1 C. J., p. 1106.] The rule has no application where the demands arising out of a contract are separate and distinct. The law in reference to such matters is well settled but the courts have had great difficulty in determining whether given demands are single or separate and distinct. Of course, where there is an entirely distinct and separate contract the breach of one gives rise to a separate cause of action from one for the breach of the other, but the same contract may give rise to different causes of action either by successive breaches or by reason of the different stipulations or provisions of the contract. [1 C. J., pp. 1111, 1112.]

The rule applicable where an employee has been wrongfully discharged seems to the well settled in this state. Where the "servant is unlawfully discharged he may treat the contract as rescinded and sue on a quantum meruit for services actually rendered, or he may bring his action for damages for breach of contract. He may wait to do this until the term is ended, and recover his actual damages, or he may sue at once and recover his probable damage from the breach. But when he has elected his remedy and pursued it, a judgment in one action will be a bar to a further suit. A person discharged from services cannot, strictly speaking, recover wages for a constructive service. If he brings such an action and recovers, it must be regarded as an action for the breach of contract in wrongfully discharging him." [Soursin v. Salorgne, 14 Mo.App. 486, 488.] [See, also, Booge v. P. R. R. Co., 33 Mo. 212; Hume v. Miller Hatcheries, 51 S.W.2d 179.]

However, there is a difference between discharging an employee and retaining his services but preventing him from laboring, such as presented in this case. Where the breach of a contract is equivalent to a termination of it or putting an end to it, then, there is no question but that the breach goes to the entire contract and but a single cause of action arises thereon to the party damaged. "Whether a contract be single and entire or apportionable, if there is a total abandonment or breach by one party the other has a single cause of action upon the entire contract if he think proper to act upon the breach as a total one; the better opinion is that he is obliged to do so." [1 Sutherland on Damages (4 Ed.), p. 375.]

"In cases of contracts imposing a...