St. Louis, B. & M. Ry. Co. v. Booker

• Decision Date: 20 June 1926
• Docket Number: (No. 8870.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: ST. LOUIS, B. & M. RY. CO. v. BOOKER.
• Court: Texas Court of Appeals

287 S.W. 130

ST. LOUIS, B. & M. RY. CO. v. BOOKER.

(No. 8870.)^*

Court of Civil Appeals of Texas. Galveston.

June 20, 1926.

Rehearing Denied October 7, 1926.

Appeal from District Court, Harris County; Hon. Chas. E. Ashe, Judge.

Action by T. F. Booker against the St. Louis, Brownsville & Mexico Railway Company. From an order granting plaintiff a new trial after a directed verdict and judgment thereon for defendant, defendant appeals. Affirmed.

Andrews, Streetman, Logue & Mobley and James E. Kilday, all of Houston, for appellants.

Charles Murphy, of Houston, for appellee.

PLEASANTS, C. J.

This appeal is from an order of the court below granting appellee a new trial in a suit brought by him against appellant, in which the court had instructed the jury to return a verdict in favor of the defendant, and upon the return of such verdict had rendered judgment accordingly.

Plaintiff's petition alleges in substance: That on and prior to the 20th day of September, 1919, plaintiff was in the employment of the defendant as a car inspector. That on or about the date mentioned the Director General of Railroads, who was in charge of the operation of defendant railroad, and the Brotherhood of Railway Carmen of America, of which plaintiff was a member, entered into an agreement for the purpose of fixing rules, regulations, rates of pay, and the conditions under which plaintiff and his coemployees might enter in the service of the defendant, and the conditions under which they might be discharged from the service. That said contract, which was duly executed by the parties thereto before named, was made for the special benefit of plaintiff and those engaged in like service, and contained the following provisions:

"Rule No. 37. An employee who has been in the service of the railroad 30 days shall not be dismissed for incompetency, neither shall an employee be discharge for any cause without first being given an investigation.

"Rule 38. If it is found that an employee has been unjustly discharged or dealt with, such employee shall be reinstated with full pay for all lost time."

That this contract remained in full force and effect and was recognized as a binding contract between plaintiff and defendant until it was superseded by a later one made in the year 1923. That in violation of the terms and provisions of its contract with plaintiff, the defendant, on or about the 30th day of November, 1920, unjustly and without any cause or excuse discharged plaintiff from its service and refused to reinstate him upon application made by plaintiff to the proper officials of the company. That thereafter plaintiff and defendant agreed to submit the question of plaintiff's discharge and his right to reinstatement to the United States Railroad Labor Board. That in accordance with said agreement plaintiff and defendant did submit to the Railroad Labor Board the question of the justness of plaintiff's discharge and of his right to reinstatement. That after due notice of the hearing on the questions jointly submitted to it by plaintiff and defendant, with an opportunity for argument by both parties, the Labor Board, after full investigation and deliberation, decided, on or about the 19th day of November, 1921, that plaintiff was unjustly discharged and was entitled to be reinstated and to receive from defendant the amount due under his contract for the time he was debarred from defendant's service, less any amount he had earned in other employment during said time. That on or about December 9, 1921, after the receipt by it of the finding and award of the Labor Board, the defendant requested the plaintiff to return to work as soon as possible, and requested the plaintiff to file on or before a named date a statement of the time lost by him because of his wrongful discharge and of the amount earned by him in other employment during said time. That plaintiff complied with defendant's request and returned to work, and within the time allowed by the defendant filed the statement showing the time lost, and the amount earned by him in other employment, which statement shows that the amount due plaintiff under his contract of employment, after deducting therefrom the amount earned in other employment during the time his services were refused by the defendant, is the sum of $1,712.74. That:

"Though the defendant immediately complied with that part of the ruling of the United States Labor Board ordering the reinstatement of the plaintiff in his former position with seniority rights unimpaired, the defendant has failed and refused and continues to fail and refuse to pay the plaintiff the difference between the amount of money which he would have earned and the amount which he did earn, or any part thereof, though the plaintiff has made frequent demands and requests on the defendant and its general manager for the payment thereof. * * * That the agreement for the joint submission of the controversy between the plaintiff and the defendant was signed by the representative of plaintiff on the one hand and the general manager of the defendant railroad company on the other, and the plaintiff does not have at this time an original copy of said agreement to jointly submit the controversy, but the defendant has an original copy of said agreement, and the plaintiff now requests the defendant to produce said original agreement to submit the controversy, as between it and the plaintiff, on the trial of the cause or the defendant will offer secondary evidence thereof. The plaintiff also does not have an original copy of the award of the United States Railroad Labor Board, but says that the defendant has an original copy thereof, and the plaintiff requests the defendant to produce said original copy of the award of this case, or plaintiff will offer secondary evidence of the contents thereof.

"Wherefore plaintiff prays that defendant be cited to appear and answer herein, and on the hearing hereof the plaintiff have judgment for the sum of $1,712.74, together with interest thereon from November 19, 1921, and together with costs of this suit, and for such other and further relief as plaintiff might be entitled, for all of which he will ever pray."

The defendant answered by general demurrer and general denial, and by special pleas, in which it is averred in substance that plaintiff, after full investigation and hearing, at which plaintiff was present, was rightfully discharged because he was found guilty of violating the law by aiding in the illegal transportation of intoxicating liquor, "and is in no position to invoke the contract in question or to predicate his claim thereupon in connection with the supposed award of the United States Labor Board."

The facts and circumstances tending to show plaintiff's complicity in the unlawful acts charged against him by the defendant are set out in detail in the special plea:

"For further and special answer herein, defendant says, in reference to the award of the United States Labor Board, that said award was in disregard of the facts, and undertook to go further than the parties had authorized in the submission as made. Under no circumstances was the Labor Board authorized to require the railway company to pay to the plaintiff money that he had not earned. The order of the board that he be reinstated in the employment was reluctantly obeyed because of the desire of the railway company to have the good wishes and co-operation of the United States Labor Board; but the order to pay the plaintiff money for which he had performed no service was, after due consideration, repudiated, and the railway company held itself not to be bound thereby, as it had a legal right to do. Furthermore, in respect to the reinstatement of plaintiff as an employee, after this was accomplished, the plaintiff himself went out with the Shop Crafts in their illegal strike, contrary to the express findings and orders of the United States Labor Board. In consequence of such action, as well as for other reasons, he was not again re-employed.

"Wherefore, premises considered, defendant prays that plaintiff take nothing by his suit, and that defendant go hence without day and recover its costs."

Upon the trial a witness for plaintiff, D. B. Gray, testified in substance that in November, 1920, he was general chairman representing the Federated Shop Crafts on defendant railway, and that plaintiff was a member of the federation, and that it was the duty of witness to represent plaintiff in the controversy between him and the defendant. After hearing of plaintiff's discharge on November 20, 1920, he took up the matter with the proper officials of defendant railway, and he and Mr. Robinson, defendant's general car foreman, and who was representing the defendant in the matter, made an investigation of the charges against plaintiff and were unable to agree as to whether the charges should be sustained. In this situation, they submitted the matter to Mr. Choate, defendant's general manager, who sustained Mr. Robinson in the opinion that the charges were true and that plaintiff should be discharged, but because of the fact that the discharge had been made without any investigation, he paid plaintiff $116, the amount of his wages for the time elapsing between the date of his discharge and the date...