Pennington v. MISSOURI PACIFIC RAILROAD COMPANY

• Decision Date: 21 December 1956
• Docket Number: No. 15619.,15619.
• Citation: 239 F.2d 332
• Parties: Cassie S. PENNINGTON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Debtor, and the Debtor's Trustee, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

239 F.2d 332 (1956)

Cassie S. PENNINGTON, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Debtor, and the Debtor's Trustee, Appellees.

No. 15619.

United States Court of Appeals Eighth Circuit.

December 21, 1956.

Robert Kratky, St. Louis, Mo. (Bernard Susman, St. Louis, Mo., with him on the brief), for appellant.

Thomas T. Railey, St. Louis, Mo. (Russell L. Dearmont and Harold L. Harvey, St. Louis, Mo., with him on the brief), for appellees.

Before SANBORN, WOODROUGH and WHITTAKER, Circuit Judges.

WOODROUGH, Circuit Judge.

The appellant is a colored man who worked on the Missouri Pacific Railroad as a train porter from about 1917 to about February 29, 1952, when he retired. More than three years after his retirement, he filed an application in the Missouri Pacific Reorganization Proceedings for leave to file an intervening petition and claim therein against the Debtor Company and its Trustee. He attached to the application and made a part thereof a proposed intervening petition and claim in the nature of a class action for a declaratory judgment and for damages arising out of alleged wrongful discrimination against himself and other train porters on account of their race and color. All of the "train porters" are Negroes and the petition alleged that the "train porters" performed substantially the same class of work as the "white passenger train brakemen" employed on the railroad, and work additional to the work done by the "brakemen," but that solely by reason of discrimination on account of race and color, the "train porters" received considerably less pay than the brakemen for their work. The Reorganization Proceedings of the Missouri Pacific Railroad Company began in 1933 and it was alleged in the intervening petition that a differential in the wages paid the colored train porters and the wages paid the white brakemen continued during the trusteeship. The petition presents that the Trustee was an officer of the federal court and that discrimination on his part based on race or color of the employees was in violation of the Fifth Amendment of the Constitution of the United States. The prayer of the petition was for recovery of additional wages for appellant and for the train porters for the period that the Trustee operated the railroad and for declaratory judgment that train porters have been and are entitled to be paid the same wages as those paid to passenger train brakemen.

Guy A. Thompson, Trustee of Debtor, filed Suggestions in Opposition to the Application for Leave to File Intervening Petition. His principal objection to the intervention was the fact that the reorganization of the railroad was about to be finally terminated at the time that the power of the court was invoked to grant leave to file the petition of intervention. The Trustee referred to the record which shows that after some twenty-three years of administration, a Plan of Reorganization had finally been approved and thereafter confirmed, and before appellant's application to intervene was reached for decision, an order had been entered conditionally dismissing the Trustee and turning the railroad property over to the reorganized Missouri Pacific Railroad Company. That company assumed unpaid obligations of the Trustee and the Debtor and could be sued therefor in any court of competent jurisdiction.

The Trustee also denied liability of the Debtor or himself to the applicant for intervention and asserted that the proposed petition failed to state facts sufficient to constitute a justiciable cause of action.

The application for leave to intervene was filed October 19, 1955, and the Suggestions of the Trustee in Opposition on November 30, 1955. The issue as to the granting of leave was briefed on both sides and the time for filing the last brief was February 15, 1956.

On March 30, 1956, the court entered the order denying leave to intervene as follows:

"The Court having before it the application of Cassie S. Pennington for leave to file his intervening petition and his claim against the Debtor and the Debtor\'s Trustee, and having examined said application, heard the argument of counsel, studied the briefs of the parties, and being fully advised in the premises, Doth Order that said application be and the same is hereby denied."

This appeal has been taken to reverse that order but the appellee contends that the intervention was a permissive matter within the discretion of the court; that the intervention was not indispensable to the preservation or enforcement of appellant's claims; that appellant was in no wise adversely affected by the transfer of the Debtor's property to the Reorganized Company on the prescribed terms and conditions or by the judgments entered consummating the Reorganization Proceedings; that the order denying intervention did not purport to and did not make any final determination of any of the merits of the claims on which the application for intervention was based; and that the order was not a final order for purposes of appeal.

We think the position of the Trustee is sound and fully supported by the facts shown in the record and by the precedents.

There is no federal statute conferring an unconditional right upon the appellant here to intervene by reason of the claims asserted in his petition. Section 77, sub. c(13) of the Bankruptcy Act provides that "upon petition therefor and cause shown" any "interested party may be permitted to intervene." Title 11 U.S.C. § 205. It does not provide that such intervention shall be permitted as a matter of right. Rule 24 of the Rules of Civil Procedure, 28 U.S.C.A. defines the distinction...