Petty v. Missouri & Arkansas Railway Co.
Citation | 167 S.W.2d 895,205 Ark. 990 |
Decision Date | 01 February 1943 |
Docket Number | 4-6944 |
Parties | PETTY v. MISSOURI & ARKANSAS RAILWAY COMPANY |
Court | Supreme Court of Arkansas |
Appeal from Woodruff Circuit Court; E. M. Pipkin, Judge; affirmed.
Judgment affirmed.
Donald S. Martz, W. J. Dungan, W. R. Donham, and Sam M. Wassell, for appellant.
C. E Yingling, V. D. Willis, and W. S. Walker, for appellee.
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 & Arkansas Railway Company Schedule of Rules, rates of pay and working conditions to engineers, firemen and hostlers'; that §§ (d) and (e), respectively, of art. 32 of said agreement are as follows, to-wit:
'(e) Enginemen shall have the right to appeal from any decision which involves discipline.'
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, § 9134, Pope's Dig., applies; (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, § 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, § 8933, applies; and (4) that the contract or the particular provision thereof set out in the complaint as §§ (d) and (e) of art. 32 thereof, is unilateral, lacking in mutuality of obligation, and is unenforceable. 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 that case, Matthews was an engineer and was working under a contract with the company, art. 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 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 he has 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:
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 L. & 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; N. & W. R. Co. v. Harris, 260 Ky. 132, 84 S.W.2d 69; Clay v. L. & 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: ...
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Petty v. Missouri & Arkansas Ry. Co.
... ... No. 4-6944 ... Supreme Court of Arkansas ... February 1, 1943 ... Rehearing Denied March 15, 1943 ... Page 896 ... 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 ... ...