Smithey v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY

• Decision Date: 20 January 1955
• Docket Number: Civ. A. No. 2749.
• Citation: 127 F. Supp. 210
• Parties: Virginia S. SMITHEY, Plaintiff, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

127 F. Supp. 210

Virginia S. SMITHEY, Plaintiff, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant.

Civ. A. No. 2749.

United States District Court, E. D. Arkansas, W. D.

January 20, 1955.

Reinberger & Eilbott, Pine Bluff, Ark., Gerland P. Patten, Little Rock, Ark., for plaintiff.

Ned Stewart, Texarkana, Ark., for defendant.

TRIMBLE, Chief Judge.

This suit was filed on February 8, 1954, by the plaintiff for damages allegedly resulting from a breach of contract with the defendant.

Plaintiff alleges that she was employed on or about January 27, 1948, as a railroad telegrapher and worked in this capacity until she was discharged on or about February 20, 1949.

Plaintiff in her complaint sets forth Article 27 of an agreement entered into between the defendant and the Order of Railroad Telegraphers on or about December 1, 1934. The Article set forth is entitled "Discipline and Grievances".

She alleges that she was wrongfully discharged and that she exhausted her administrative remedies in an effort to obtain reinstatement.

On February 26, 1954, the defendant answered the complaint admitting the employment and discharge of the plaintiff, but denying that the discharge was wrongful. Defendant admits that an agreement was entered into by the defendant and the Railroad Telegraphers as alleged in the complaint, but denies that the plaintiff exhausted her administrative remedies under the contract.

Defendant further answering denies that the plaintiff has been damaged and affirmatively alleges that the complaint fails to state sufficient facts to constitute a cause of action and that the court is without jurisdiction; that the Railway Labor Act, 45 U.S.C.A. § 151 et seq., is applicable and that the plaintiff's pleading fails to set out any claim upon which relief can be granted by the court.

Subsequently, on October 27, 1954, defendant filed a motion to dismiss plaintiff's complaint or in the alternative for summary judgment.

In the motion to dismiss, defendant states that the plaintiff's alleged cause of action is barred by the statute of limitations. Defendant takes the position that the three year statute of limitations in Arkansas, § 37-206, Ark.Stats.1947, is applicable and says that since the alleged wrongful discharge was February 20, 1949, and the complaint was not filed until February 8, 1954, it is consequently barred by limitations.

Plaintiff takes the position that the basis of the complaint is a written contract, to wit: the contract above mentioned between the defendant and the Order of Railroad Telegraphers.

If the action is based upon a written contract, the statute of limitations would not bar the action until the end of five years after the date of discharge, or until February 20, 1954.

It is, of course, admitted that the plaintiff's signature does not appear on the contract or agreement entered into by the defendant and the Order of Railroad Telegraphers representing the employees of the company. The most that can be said of the 1934 agreement, I think, is that it is a conduit whereby the plaintiff and all other employees similarly situated became the beneficiaries of the provisions thereof, but plaintiff herself is unknown so far as may be discovered in an examination of the contract.

It is necessary, therefore, that parol testimony be used to show any contractual relationship between the plaintiff and the defendant. The contract referred to in the complaint, therefore, only constitutes a portion of the contractual agreement or relationship between the plaintiff and the defendant. Plaintiff finds herself in the position of having to rely upon not only the contract pleaded, but upon oral testimony to complete her contract. It is a well established rule of law that a contract partly in writing and partly in parol is verbal. White v. Southern Kraft Corporation, 8 Cir., 132 F.2d 381; Izard v. Connecticut Fire Ins. Co., 128 Ark. 433, 194 S.W. 1032.

In reaching the conclusion that a contract partly in writing and partly in parol was a verbal contract and, therefore contrary to the provisions of the Statute of Frauds, in the case of White v. Southern Kraft Corporation, supra 132 F.2d 382, Judge Stone of the Eighth Circuit Court of Appeals said:

"The case of Izard v. Connecticut Fire Ins. Co., 128 Ark. 433, 194 S.W. 1032, determines against this contention of appellant. Therein, the court stated: `The contract cannot rest partly in writing and partly in parol, for unless the writing is complete on its face the undertaking is dependent upon the terms of the oral contract, although statements in writing may be admissible to prove the oral contract.' 194 S.W. at page 1033. Also see Blodgett Const. Co. v. Watkins Lumber Co., 158 Ark. 75, 249 S.W. 574, 577."

The principle likewise applies in determining whether or not a contract falls under the three year statute of limitations or the five year statute of limitations.

I reach the conclusion, therefore, that so far as the plaintiff's right to maintain this suit depends upon the 1934 agreement above mentioned, it is upon a verbal contract.

Plaintiff has filed as an exhibit in the case a photostatic copy of her application for employment which bears the date of January 26, 1948. Other dates are stamped and written on the application. The Medical Department rating is dated by the examining surgeon 1-26-48 and by the chief surgeon 1-27-48. There is the stamped impression of the Office Superintendent of personnel dated February 3, 1948, and a date written by someone undisclosed of March 15, 1948. The page of the application which contains the description of the person applying for employment bears the signature of the general superintendent on the line headed "Approved". I am unable to find any provision of the application that would serve to make it a completed contract of employment, either by itself or when considered in conjunction with the 1934 agreement. It still requires testimony to establish employment of the plaintiff by the defendant, and it is presumed that the transactions which resulted in the employment were verbal. At any rate, the plaintiff does not claim that there were any other written instruments involved in her employment than the agreement of 1934 and her application for employment.

The conclusion I have reached in this case that the employment involved was the result of a verbal contract does not mean that the statute of limitations bars the action, because plaintiff originally filed suit against the defendant on February 19, 1952, which was within three years of the date of her discharge. She took a nonsuit of this action on February 16, 1953. The present action was filed on February 8, 1954, and that brought the action within the provisions of Section 37-222, Ark.Stats.1947.

In support of defendant's motion to dismiss or for summary judgment it is argued that the contract sued on is a unilateral contract and, therefore, unenforceable. The case of Petty v. Missouri & Arkansas R. Co., 205 Ark. 990, 167 S.W.2d 895, decided February 1, 1943, is cited in support of this argument of the defendant, and if it is to be followed, the result would be the dismissal of the complaint for lack of mutuality.

It is the view of the plaintiff that the contract which she alleges was breached was not an Arkansas contract. It may be true that if the 1934 agreement could be said to be a completed contract it would be one that was executed in the State of Texas. If the application of the plaintiff for a position constituted a contract within itself, or constituted a completion of the contract, it might be said to be a Texas contract, a Missouri contract or an Arkansas contract, depending upon the place where the final act necessary to constitute employment took place.

However,...