Moore v. Yazoo & M. V. R. Co.

• Decision Date: 16 March 1936
• Docket Number: 32063
• Citation: 166 So. 395,176 Miss. 65
• Parties: MOORE v. YAZOO & M. V. R. Co. et al
• Court: Mississippi Supreme Court

166 So. 395

176 Miss. 65

MOORE v. YAZOO & M. V. R. Co. et al

No. 32063

Supreme Court of Mississippi

March 16, 1936

Division A

1 CONTRACTS.

Breach of contract by one party thereto can be waived by the other.

2 CONTRACTS.

Acceptance of substituted contract after breach of original contract waives breach.

3. MASTER AND SERVANT.

Contract with switchmen's labor union respecting seniority rights of switchmen was breached when new seniority roster was promulgated and acted on by railroad which gave switchman who was entitled to No. 37, the number 57.

4. MASTER AND SERVANT.

Alleged breach of contract with switchmen's labor union respecting seniority rights of switchmen was waived by switchman's acceptance of work under new seniority roster promulgated in November, 1926, without making protest until 1932.

HON. J P. ALEXANDER, Judge.

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

Action by Earl Moore against the Yazoo & Mississippi Valley Railroad Company and another. From a judgment for the defendant, the plaintiff appeals. Affirmed.

Affirmed.

Chalmers Potter, of Jackson, for appellant.

The contract is not unilateral.

There are a large number of cases wherein labor union contracts have been discussed, and where the courts have upheld the same as against a plea of lack of mutuality.

Y. & M. V. R. R. Co. v. Sideboard, 133 So. 699; Maisel v. Sigman, 205 N.Y.S. 807; Nederlandoch v. Stevedores Society, 265 F. 397; St. Louis B. & M. R. R. Co. v. Bucker, 5 S.W.2d 859; Y. & M. V. R. R. Co. v. Webb, 64 F.2d 902.

The contract of employment is not one terminable at will.

Davis v. Davis, 151 N.E. 134; Y. & M. V. R. R. Co. v. Webb, 64 F.2d 902; St. Louis B. & M. R. R. Co. v. Bucker, 5 S.W.2d 956; Galveston v. J. S. A. Ry., 42 S.W.2d 475; San Antonio & A. P. Ry. v. Collins, 61 S.W.2d 84; Gary v. Central of Georgia, 141 S.E. 821; Johnson v. American Railway Express Co., 161 S.E. 476; Gnatt v. Southern Ry. Co., 118 S.E. 920.

The plaintiff's evidence is sufficient to go to the jury on the extent of damage.

The contract relied upon in lease contract does not defeat plaintiff's right.

Y. & M. V. R. R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669.

Moore did not fail to protest.

We respectfully submit that the action of Mr. McGeheo in protesting as local chairman and in carrying the protest from Harding, the local yard master, to the United States Mediation Board in Washington inured to Moore's benefit.

May & Byrd, of Jackson, E. C. Craig, of Chicago, Ill., and Burch, Minor & McKay, of Memphis, Tenn., for appellee.

The contract is unilateral.

There is ample authority for the contention that the contract is void for lack of mutuality.

Bolles v. Sachs, 37 Minn. 315.; M. K. & T. Ry. v. Bagley, 60 Kan. 424, 56 P. 759; Wilkinson v. Heavenrich, 26 N.W. 139; Morrow v. Southern Express Co., 26 S.E. 998; 9 Cyc. 327; Greenberry Dorsey v. Packwood. 12 How. 126, 13 L.Ed. 921; Piercy v. Louisville & Nashville Ry., 198 Ky. 477, 248 S.W. 1042, 33 A. L. R. 322; Y. & M. V. R. R. Co. v. Mitchell, 161 So. 860; Miss. Theatres Corp. v. Hattiesburg Local Union No. 615, 174 Miss. 439.

We submit that the contract between the Switchmen's Union and the railroad sued on in this case is one which is terminable at will under the decision of this court in the case of Rape v. M. & O. R. R. Co., 136 Miss. 38.

East Line & Red River Railroad Co, v. Scott, 72 Tex. 70, 13 Am. St. Rep. 758; St. Louis, Iron Mountain & Southern Ry. v. Mathews, 64 Ark. 398, 42 S.W. 902, 39 L. R. A. 467; Combs v. Standard Oil Co., 59 S.W.2d 525; 39 C. J. 71; Hudson v. C. N. O. & T. P. R. Co., 154 S.W. 47; Warden v. Hinds, 163 F. 201, 25 L. R. A. (N. S.) 529; Savannah F. & W. Ry. v. Willett, 31 So. 246; Bentley v. Smith, 59 S.E. 720; 1 Williston on Contracts, pages, 59 and 61; Morrow v. Southern Express Co., 28 S.E. 998; C. & G. E. R. R. Co. v. Dane, 43 N.Y. 240; L. & N. R. R. Co. v. Offut, 99 Ky. 427, 59 Am. St. Rep. 467; Elmore v. Atlantic, etc., Ry., 191 N.C. 182, 43 A. L. R. 1072; Boyer v. Western Union Tel. Co., 124 F. 246; Reasonor v. Watts, 51 L. R. A. (N. S.) 629; LaBatt on Master & Servant, page 328 sec. 89; 18 R. C. L. 494, sec. 4; 13 C. J., page 337, sec. 188, and page 341, sec. 192; Y. & M. V. R. R. Co. v. Webb, 64 F.2d 902.

Plaintiff's evidence is not sufficient to go to the jury on the extent of damage.

The contract relied upon in lease defeats plaintiff's right.

Moore received more than he was entitled to on the consolidated roster.

Y. & M. V. R. R. Co. v. Mitchell, 161 So. 860.

Moore failed to protest as provided by his contract.

Moore was lawfully discharged in February, 1933.

18 R. C. L., page 518; St. L. B. & M. R. R. Co. v. Booker, 5 S.W.2d 859; Adams v. Southern Pac. Co., 57 A. L. R. 1070; 9 C. J. 774, sec. 115; Memphis Trust Co. v. Brown-Ketchum Iron Works, 166 F. 398; Mitchell v. Dougherty, 86 F. 856; 39 C. J. 73, sec. 62; Independent Life Ins. Co. v. Williamson, 154 S.W. 409, 152 Ky. 818.

Argued orally by Chalmers Potter, for appellant, and by J. L. Byrd, for appellee.

OPINION

Smith, C. J.

This is an action by the appellant against the Yazoo & Mississippi Valley Railroad Company and the Illinois Central Railroad Company for an alleged breach of a contract of employment. On motion of appellees, the appellant's evidence was excluded, and the jury was directed to return a verdict for them, which was accordingly done.

The facts disclosed by the record, out of which the appellant's claimed cause, of action arises, are, in substance, as follows: Prior to June, 1926, the Alabama & Vicksburg Railway Company owned and operated a railroad, one of the termini of which was the city of Jackson, Miss., at which place it operated a switching yard. The appellant was employed by that company as a switchman in its Jackson yard; the relation between them being determined by a contract entered into with the company by the Switchmen's Union of North America, of which the appellant was a member. This contract provided for seniority rights of the members of the union employed thereunder, which right of seniority determined the assignment of members of the union under the contract to work for the railroad company. In June, 1926, and thereafter the Yazoo & Mississippi Valley Railroad Company and the Illinois Central Railroad Company were both operating railroads running through the city of Jackson, at which place the switching for both roads was done by the Illinois Central Railroad Company under an arrangement between them by which the Yazoo & Mississippi Valley Railroad Company paid the Illinois Central Company its proportionate part of the expenses incurred by it in doing this switching. In June, 1926, the Alabama & Vicksburg Railway Company leased its railroad to the Yazoo & Mississippi Valley Railroad Company. According to the appellant, this lease contract obligated the Yazoo & Mississippi Valley Railroad Company to assume and carry out the contract of the Switchmen's Union of North America with the Alabama & Vicksburg Railway Company, and the relations between the appellees, the evidence of which it will not be necessary to set forth, imposed a similar obligation on the Illinois Central Railroad Company.

It will not be necessary for us to determine whether or not this construction of the lease and of the relations between the appellees is correct, for, if it is, that fact would not affect the conclusion we have here reached.

This switching arrangement between the appellees was continued, and the Illinois Central received into its employment the switchmen, one of whom was the appellant, who had theretofore been working for the Alabama & Vicksburg Railway Company in its Jackson yard.

The Illinois Central Railroad Company on and prior to June, 1926 and thereafter, had a contract with the Brotherhood of Railroad Trainmen which provided for seniority rights of the members of the brotherhood somewhat similar to the seniority rights provided for the members of the Switchmen's Union of North America in the contract of that union with the Alabama & Vicksburg Railway Company. From June, 1926, to November, 1926, the appellant seems to have been given his seniority right under the contract with the Alabama & Vicksburg Railroad Company. In November, 1926, the Illinois Central, after a conference between its executive officers and those of the Brotherhood...