Moore v. Illinois Cent. R. Co

• Decision Date: 08 November 1937
• Docket Number: 32860
• Citation: 176 So. 593,180 Miss. 276
• Court: Mississippi Supreme Court
• Parties: MOORE v. ILLINOIS CENT. R. Co

176 So. 593

180 Miss. 276

MOORE v. ILLINOIS CENT. R. Co

No. 32860

Supreme Court of Mississippi

November 8, 1937

Division A

Suggestion of Error Overruled January 3, 1938.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by Earl Moore against the Illinois Central Railroad Company wherein defendant filed six special pleas, and demurrer to plaintiff's replication to the fifth plea was sustained. From a final judgment for defendant after plaintiff declined to plead further, plaintiff appeals and defendant cross-appeals. Reversed and remanded.

Reversed and remanded.

Chalmers Potter, of Jackson, for appellant.

This court, at the last term, in the case of McGlohn Gulf & Ship Island Railroad Company, 174 So. 250, has completely disposed of the questions raised by the st and second special pleas. In the McGlohn case, suit was filed by McGlohn, a conductor on the Gulf & Ship Island Railroad Company and a member of the Order of Railroad Conductors, for McGlohn's wrongful discharge by the railroad in violation of the contract had between the Order and the railroad. To the declaration the defendant demurrer and, among other grounds of demurrer, assigned that the contract was unenforceable for the reason that it was unilateral and lacked mutuality and terminable at the will of either party. The lower court sustained the demurrer, and in reversing the lower court anti in distinguishing between the Rape case, 136 Miss. 38, which was a contract between a single individual and the railroad, and a labor union contract, this court said: "We are of the opinion that the contract of the union was not void, for the reason that it is terminable at the will of either party. True it is that the employee was not bound to a state of servitude for life, and that the particular conductor here could have left the service if and when he pleased so to do. The contract, fairly interpreted, is that the railroad company agreed with these employees that the length of service of the particular employee, so far as the railroad was concerned, would be until a trial--completely under the control of the employer--should be had in accordance with Article 30 and might be terminated in the manner therein provided; in other words, while the railroad company, generally, may have the right to terminate the contract at its will, a solemn stipulation was made by it by which it is bound not to exercise such will in a summary manner, but in a certain well defined manner and by a stipulated course of procedure. We conclude that this section was a material, substantial part of this contract by which appellant was induced to enter into and continue in this employment, and a part of the promised consideration therefor.

"We think this stipulation takes the particular case from under the rule as announced in the case of Rape v. Mobile & Ohio R. Co., 136 Miss. 38, 100 So. 585, 35 A. L. R. 1422. In that case the employees of the railroad went on a strike during which time appellant applied and was employed by the railroad company, with the promise of a permanent position, but afterwards, when the strikers returned to work, was discharged. Rape contended that he had entered the service of the railroad company on an oral agreement of permanent employment. It was there held that the contract was terminable at the will of the railroad company, and, further, that it did not come within the exception because the contract of employment was not supported by an independent consideration moving from the employee to the employer."

While this case, in our opinion, disposes of the questions raised by the first and second special pleas in favor of the position we take, the decision of this court in the McGlohn case is strictly in line with modern thought and supported by the overwhelming weight of authority of modern cases.

Maisel v. Sigman, 205 N.Y.S. 807; Nederlandoch, etc., v. Stevedore Society, 265 F. 397; St. Louis B. & N. R. R. Co. v. Buckner, 5 S.W.2d 859; Y. & M. V. R. R. v. Webb, 64 F.2d 902; Galveston v. J. S. A. R. R. Co., 42 S.W.2d 475; San Antone & A. P. R. R. Co. v. Collins, 61 S.W.2d 84; Gary v. Central of Georgia, 141 S.E. 821; Johnson v. American R. R. Exp. Co., 161 S.E. 476.

The agreement between Brotherhood of Railroad Trainmen and defendant is a contract.

The rule in Mississippi is that where a question of discipline, policy, or doctrine is involved, the party to the contract must pursue the remedies provided for in the contract, but where a money demand is sought the plaintiff may immediately, and without regard to any requirement of the contract to exhaust his remedies as provided for in the contract, appeal to the courts for an adjudication of his rights.

Independent Order of Sons & Daughters of Jacob of America v. Wilkes, 53 So. 493; Eminent Household of Columbia Woodmen v. Ramsey, 79 So. 351; Eminent Household of Columbia Woodmen v. Payne, 88 So. 454.

We therefore take it that the rule is firmly established in this court that an attempt by the parties to require a person with a money demand to appeal to the higher officers of the Defendant corporation before he can institute a suit is contrary to the public policy and void, because the law, and not the contract, prescribes the remedy, and the parties have no more right to enter into stipulations fettering their rights to resort to the courts for their remedy in a given case, than they have to create a remedy prohibited by law.

We most respectfully submit that where the contract merely gives to the plaintiff the right of appeal and does not require him to perfect the appeal, that this is merely an additional right granted to the plaintiff by the contract and it is not obligatory upon him to exhaust his remedies provided in the contract before resorting to the courts.

Locomotive Engineers' Mut. Life & Acc. Ins. Assn. v. Higgs, 135 N.E. 353; Supreme Lodge v. Day, 49 P. 74; Supreme Lodge K. P. v. Andrews, 67 N.E. 1009; Bowers v. Sampson's Lodge of K. P., 1 N.E. 571; Voluntary Relief Dept. of Pa. Lines v. Spencer, 46 N.E. 47; Grand Lodge of Brotherhood of Railroad Trainmen v. Randolph, 57 N.E. 882.

We most respectfully submit that the position taken by the defendant railroad company is indefensible because, first, such a provision is contrary to the public policy of Mississippi, and secondly, the right of appeal as granted by the contract is merely permissive, not obligatory, and the plaintiff had the right to exercise it or not, as he saw fit.

The plea of res adjudicata is not maintainable under the pleading.

Among the necessary elements to render the adjudication in the former case a bar to the maintenance of the instant suit, these two elements must concur: first, there must be an identity of causes of action, and, secondly, there must be an adjudication on its merits in the former suit of the precise issues involved in the instant case. If either of these two elements is lacking, the former adjudication does not act as a bar or an estoppel to the maintenance of the instant suit.

34 C. J. 805-806.

There is no identity of causes of action in the two suits. All of the authorities lay down the rule that the most commonly accepted test as to whether there is an identity of causes of action between the former suit and the pending suit is whether the same evidence is necessary to sustain both judgments.

15 R. C. L. 964-5; Freeman on judgments (5 Ed.), page 1447, par. 687.

We most respectfully submit that if an identity of causes of action must concur between the two suits to render a plea res adjudicata a bar to the maintenance of the second suit, and, further, if the proper test of identity of causes of action is the test laid down in the above authorities there is no such identity of causes of action between No. 8232 and the instant suit as will bar the maintenance of the latter. Why do we say this? For the reason that there is not a single element of evidence necessary to maintain the allegations of the declaration the two suits, and to sustain a judgment thereon common between the two.

Freeman on Judgments (5 Ed), page 1457, par. 690,page 1630, par. 769, page 1636, par. 770; True-Hixon Lbr. Co. v. Thorn, 158 So. 909; Russell v. Place, 4 Otto 606, 24 L.Ed. 214; DeSollar v. Hanscome, 158 U.S. 216, 39 L.Ed. 956; Susi v. Davis, 97 A. L. R. 1222; Hardy v. O'Pry, 102 Miss. 213; Moore v. Chat. Elec. R. R. Co., 109 S.W. 497, 16 L. R. A. (N. S.) 978.

Opposing counsel contends that inasmuch as Moore as not bound by the contract between the labor union, of which he was a member, and the railroad company to perform any services that it is only when he becomes an employee and continues in the employment of the railroad company with knowledge of the existence of the contract with the union that a binding contract between Moore and the railroad becomes effective and that this is a verbal contract and governed by the three year statute of limitations instead of the six-year statute applicable to written instruments.

We most respectfully submit that this is not the law. The contract herein sued on was a contract in writing entered into by and between the brotherhood and the defendant for Moore's benefit. It has been held by this court that the contract entered into by the union and the rights secured by this contract, which is a written contract, are the individual rights of the members of the union, which may be enforced directly by the individual.

If the individual member of the union may maintain an action based upon a contract made by the union and if this contract is in writing, we most respectfully submit that the action is an action based upon a written contract made by another for the benefit of the plaintiff, and therefore governed by the six-year period of...