Piercy v. Louisville & N. Ry. Co.

• Decision Date: 23 March 1923
• Citation: 248 S.W. 1042,198 Ky. 477
• Parties: PIERCY ET AL. v. LOUISVILLE & N. RY. CO. ET AL.
• Court: Kentucky Court of Appeals

248 S.W. 1042

198 Ky. 477

PIERCY ET AL. v. LOUISVILLE & N. RY. CO. ET AL.

Court of Appeals of Kentucky.

March 23, 1923

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by one Stanfill against the Louisville & Nashville Railway Company, S. J. Piercy, and others. Judgment for plaintiff and defendants Piercy and others appeal. Affirmed.

Arthur Bensinger and J. Verser Conner, both of Louisville, for appellants.

Bruce Bullitt & Gordon, Grover G. Sales and David R. Castleman, all of Louisville, for appellees.

TURNER C.

This appeal involves the seniority rights of a conductor on the Louisville & Nashville Railroad.

Appellee Stanfill was for many years prior to 1922 an employé of that company, and for 15 years or more had operated as passenger conductor a fast daylight train, running between Cincinnati Ohio, and Knoxville, Tenn., known as No. 32-33.

The Company operated between those points three regular passenger trains, each way each day; the through fast daylight train (No. 32-33) one each way, a local daylight train running each way (No. 37-38), and a night train each way (No. 31-34). The daylight fast train is regarded as the most desirable assignment, and for reasons not necessary to point out it manifestly is.

This fast daylight run (No. 32-33) had been assigned to and operated by Stanfill for many years before there were what are known as senority rights recognized or provided for between the Louisville & Nashville Railroad Company and its employés. In 1916 there were certain modified seniority rights recognized and provided for by an agreement between the company and its employés, but for the first time full seniority rights were provided for during the period of federal control of railroads, and the contract so made with the federal authorities was thereafter on March 1, 1920, ratified, approved, and adopted by the Louisville & Nashville Railroad. That contract provides:

"Seniority of conductors will date from the date of examination, employment or re-employment on their respective seniority districts."

And--

"All permanent vacancies, including new runs, shall be advertised or bulletined for ten days before assignments are made; the senior conductor making application shall be given preference--fitness and ability to govern--on their respective divisions to such vacancies or runs."

From these provisions it is perfectly plain that the seniority rights ordinarily were intended to apply to the seniority districts, which seniority districts were coextensive with the several divisions of the Louisville & Nashville Railroad. The passenger trains referred to between Cincinnati and Knoxville operated over two divisions of the Louisville & Nashville Railroad, the Kentucky division from Cincinnati to Corbin, Ky. and the Knoxville division from Corbin to Knoxville. The mileage from Cincinnati to Corbin is 64 per cent. of the distance from Cincinnati to Knoxville, and the mileage from Corbin to Knoxville is 36 per cent. of such distance; so that these passenger trains, operating between Cincinnati and Knoxville, were engaged in what is known as interdivisional service. As to this interdivisional service, the contract of seniority provides:

"When runs are operated over two or more seniority districts, conductors on districts involved will exercise seniority on the mileage percentage basis, based on miles run over each seniority district."

And this controversy revolves around an interpretation of this latter provision. For some years prior to the contract of March 1, 1920, and thereafter up to January, 1922, on these interdivisional passenger trains from Cincinnati to Knoxville, there were employed six conductors from the Kentucky division and three from the Knoxville division, it requiring nine conductors to operate these trains because of the necessary rest period or "lay-off" on account of the length of the run. Of these nine conductors, three were assigned to train No. 32-33, the fast day light passenger trains, three were assigned to the local daylight passenger trains, and three to the night passenger trains. Of the three assigned to the fast daylight train (32-33) two were from the Kentucky division and one from the Knoxville division, and that one was appellee Stanfill, who was the senior conductor on the Knoxville division.

Stanfill is a member of a subordinate lodge or subdivision of the Order of Railroad Conductors, organized on the Knoxville division, and when he was placed on this through run his residence was at that end of the line; but, his lay-overs being at the other end of the line, he changed his residence and removed his family to Covington, to that his periods of rest might be spent at his home.

In 1921 there was an agitation in the Order of Railroad Conductors, or the subdivision of that order involved on these two divisions, looking to such a change in the administration of these trains as would enable those conductors assigned on these runs from the Knoxville division to spend their "lay-over" or rest period at that end of the line. To this action Stanfill strenuously objected, he at the time being a member of the Knoxville subdivision of the Order of Railroad Conductors, and it appears that for the time being the agitation stopped. But the same was renewed in the fall or winter of 1921, and finally, in January, 1922, the railroad company, in response to requests from the Order of Railroad Conductors, entered an order, the effect of which was, as to Stanfill, to transfer him as conductor from the desirable daylight run which he had had for a number of years, and to which his seniority entitled him, to the night run between Cincinnati and Knoxville. This order appears on its face to have been made by the Railroad Company "on request of the conductors," but in fact it was made in response to request from the Order of Railroad Conductors, which request was earnestly objected to by Stanfill, upon the ground that it operated to deprive him of his seniority rights under the contract. Neither in the order making this change, nor in this record, is there a suggestion of any other reason for the entry of this order. In fact, the railroad company, which is a party to this action, appears to be wholly neutral in this controversy as between the conductors involved, and has filed no answer, and has filed no brief in this court.

In this action by Stanfill against the railroad company and the other conductors involved, under the provisions of the Declaratory Judgment Act (Acts 1922, c. 83), the lower court held there was a valid and binding contract between Stanfill and the railroad...