Petty v. Missouri & Arkansas Ry. Co.

• Decision Date: 01 February 1943
• Docket Number: No. 4-6944.,4-6944.
• Citation: 167 S.W.2d 895
• Parties: PETTY v. MISSOURI & ARKANSAS RY. CO.
• Court: Arkansas Supreme Court

167 S.W.2d 895

PETTY v. MISSOURI & ARKANSAS RY. CO.

No. 4-6944.

Supreme Court of Arkansas.

February 1, 1943.

Rehearing Denied March 15, 1943.

Appeal from Circuit Court, Woodruff County; E. M. Pipkin, Judge.

Action by V. W. Petty against the Missouri & Arkansas Railway Company for reinstatement as a locomotive engineer and damages for breach of employment contract. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Rehearing denied; McHANEY and HOLT, JJ., dissenting.

Donald S. Martz, of Little Rock, W. J. Dungan, of Augusta, and W. R. Donham and Sam M. Wassell, both of Little Rock, for appellant.

C. E. Yingling, of Searcy, and V. D. Willis and W. S. Walker, both of Harrison, for appellee.

McHANEY, Justice.

On July 16, 1941, appellant filed the following complaint, omitting formal parts, against appellee in the Woodruff Circuit Court: "That from June 25, 1925, to December 3, 1935, the plaintiff was in the employ of the defendant as locomotive engineer; that on December 3, 1935, while plaintiff was on a list of active locomotive engineers employed by defendant, he was pulled from service and discharged by defendant without just or reasonable cause; that, at the time of his said discharge, plaintiff was working under an employment agreement made and entered into by and between defendant and its employees on August 8, 1935, and effective August 1, 1935; said agreement being entitled `Missouri and Arkansas Railway Company Schedule of Rules, rates of pay and working conditions to Engineers, Firemen and Hostlers'. That sections (d) and (e), respectively, of Article 32 of said agreement are as follows, to-wit:

"`(d) Enginemen shall not be discharged, suspended or demerits placed against their records until they have had a fair and impartial hearing before an officer of the Company. At such hearing they may be represented by an employee of their own choice or by the regularly constituted committee of their organization. The representative of the man involved in the hearing shall have the right to introduce witness and interrogate any witness giving testimony at the investigation. If found not guilty, he shall be returned to the service and paid for time lost.

"`(e) Enginemen shall have the right to appeal from any decision which involves discipline.'

"That, since his summary discharge as aforesaid, plaintiff has never been given the hearing provided for in section (d) of Article 32 of said employment agreement; that he has repeatedly and consistently demanded such hearing, and that defendant has at all times, failed, refused and neglected to give him such hearing; that, upon a fair and impartial hearing, it will be developed that no cause existed at the time of plaintiff's discharge, or prior thereto, to justify such discharge; that plaintiff has, at all times during his employment with defendant, and at all times since his said discharge, been ready, able and willing to continue in said employment; that, at the time of said discharge, plaintiff was earning on an average of $225.00 per month as engineer for defendant, and that, by reason of such wrongful discharge without just cause and without having been accorded the hearing as provided in said agreement, defendant has breached said contract of employment, and that, in consequence of said breach, plaintiff has suffered damages, as time lost, in the sum of Fifteen Thousand Seventy-five Dollars ($15,075.00); that suit was filed by the plaintiff herein against the defendant herein in the Boone County Circuit Court on the 3rd day of December, 1940; was the identical suit herein; that summons was issued on the filing of said complaint and immediately served on the defendant; that said suit remained continuously pending in said Court until the — day of July, 1941, when a voluntary non-suit was taken by the plaintiff; and that this suit is therefore filed within the period permitted by the laws of the State of Arkansas.

"Wherefore, plaintiff prays judgment against the defendant for reinstatement; for damages, as time lost resulting from defendant's breach of said contract of employment, in the sum of Fifteen Thousand Seventy-five Dollars ($15,075.00); for his costs herein expended, and all other proper relief."

Appellee demurred to this complaint on two grounds, 1, that it does not state facts sufficient to constitute a cause of action; and 2, that it shows on its face that, if a cause of action is stated, it is barred by limitations. The court sustained the demurrer. Appellant declined to plead further and his complaint was dismissed. This appeal is from that order.

A number of arguments are made by appellant for a reversal of this judgment and a similar number by appellee for its affirmance. Pro and con it is argued by the parties, (1) that this is a suit in tort for damages and that the three year statute of limitations applies, Sec. 9134, Pope's Digest; (2) that since appellant alleged no written contract of employment with appellee, but only a written contract of employment for the whole class of engine employees, the contract is oral and the three year statute, Sec. 8928, applies; (3) that the contract between appellee and its employees set out in the complaint was in writing and that the five year statute, Sec. 8933, applies; and (4) that the contract or the particular provision thereof set out in the complaint as Sections (d) and (e) of Article 32 thereof, is unilateral, lacking in mutuality of obligation, and is unenforcible. These are interesting legal questions, but we pretermit a discussion of all of them except the last.

In beginning the discussion of this point (4), as above stated, learned counsel for appellant, in their brief, state: "In filing this appeal, appellant realizes that the holding in the case of St. Louis, I. M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 [903, 39 L.R.A. 467], is against him. In order for appellant to obtain a reversal in the case at bar the majority opinion in the Matthews case, supra, should be overruled. While there are several essential differences between the facts in that case and the one at bar, (Matthews having had a hearing) the legal question of mutuality of obligation in a contract is the same".

In that case Matthews was an engineer and was working under a contract with the company, Article 1 of which provided: "No engineer shall be discharged or suspended without just and sufficient cause, and, in case an engineer believes his discharge or suspension to have been unjust, he shall make a written statement of the facts in the premises, and submit it to his master mechanic, and at the same time designate any other engineer who may be in the employ of the company at the time on the same division; and the master mechanic, together with the engineer last referred to, shall, in conjunction with the superintendent, investigate the case in question without unnecessary delay, and give a prompt decision; and, in case the aforesaid discharge or suspension is decided to have been unjust, he shall be reinstated, and paid half time for all the time lost on such account". He was discharged and sought reinstatement under said Article 1. This was denied him, without cause as he alleged. He sued for damages and recovered judgment for $500. In an opinion by Mr. Justice Battle, the judgment was reversed. The court said: "Appellee, for a stipulated consideration, agreed to serve appellant in the capacity of an engineer. There was no contract as to the time he should continue to serve. Appellant agreed to pay him according to certain rates for his services, not to discharge him without just cause, to promote him according to certain grades of service, and, when it saw fit to reduce the number of its engineers, to discharge them in the order of their juniority in service, first discharging the youngest, and then the next, and so continuing until the number should be sufficiently reduced. There might have been in these promises an implied undertaking on the part of appellant to retain appellee in its service so long as he should serve it acceptably as an engineer, unless he should be sooner discharged in the manner indicated. But we fail to discover any evidence of an agreement on the part of appellee to serve any specified time. Hence there was no contract that he would serve, and that the appellant would employ him, for any stated time, — the agreement of both being necessary to fix the time of service, — and, consequently, no violation of a contract by the discharge of appellee before the expiration of any particular time."

We see nothing in this holding that runs counter to any well-established rule of the law of contracts. On the contrary it appears to us to be in harmony with the rule of mutuality of obligation. The fact that it was decided 45 years ago and by a divided court, Chief Justice Bunn dissenting, is not sufficient to justify overruling it. Decisions of other courts are cited to support the decision made, and our investigation discloses that there are a number of decisions of courts of last resort since that time and up until quite recently that are in accord with it. One of such cases is Louisville & N. R. Co. v. Bryant, 263 Ky. 578, 92 S.W.2d 749, decided March 27, 1936. That case reviews a number, if not all, the former cases of the Court of Appeals of Kentucky holding to the same effect as our Matthews case, some of them being: Hudson v. Cincinnati, N. O. & T. P. R. Co., 152 Ky. 711, 154 S.W. 47, 45 L.R.A.,N.S., 184, Ann.Cas.1915B, 98; Norfolk & W. R. Co. v. Harris, 260 Ky. 132, 84 S.W.2d 69; Clay v. Louisville & N. R. Co., 254 Ky. 271, 71 S.W.2d 617; Western Union Tel. Co. v. Ramsey, 261 Ky. 657, 88 S.W.2d 675, 103 A.L.R. 541. In that Bryant case the court said [263 Ky. 578, 92 S.W.2d 752]: "It is difficult to perceive any logical reason why that principle should not be applied as between employer and employee in contracts for service of the nature and kind here involved the same as...