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

• Decision Date: 22 February 1928
• Docket Number: (No. 9098.)
• Citation: 5 S.W.2d 856
• Parties: ST. LOUIS, B. & M. RY. CO. v. BOOKER.
• Court: Texas Court of Appeals

5 S.W.2d 856

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

(No. 9098.)

Court of Civil Appeals of Texas. Galveston.

February 22, 1928.

Rehearing Denied April 12, 1928.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by T. F. Booker against the St. Louis, Brownsville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 287 S. W. 130.

Andrews, Streetman, Logue & Mobley, W. L. Cook, and W. M. Streetman, all of Houston, for appellant.

Charles Murphy, of Houston, for appellee.

PLEASANTS, C. J.

This suit was brought by appellee to recover of appellant the sum of $1,712.74, with interest from November 19, 1921, alleged to be due him under a contract of employment made with him by appellant.

The petition alleges, in substance:

That on and for several years prior to September 20, 1919, plaintiff was in the employment of the defendant as a car inspector; that on the date last mentioned the United States Director General of Railways, in control of the operation of defendant railway, entered into a written agreement with the employees of defendant, acting through their labor organization, by the terms of which it was expressly provided that no employee would be dismissed from the service of the defendant for any cause without an investigation of the cause of dismissal being first given the employee, and, if it be found that the employee has been unfairly discharged or dealt with, such employee should be reinstated with full pay for all time lost; that said contract between defendant and its employees remained in full force and effect until superseded by a subsequent contract entered into between the parties in 1923; that on or about the 30th day of November, 1920, the defendant summarily and without cause unjustly discharged plaintiff from its service; that plaintiff thereupon requested an investigation and reinstatement as provided in the contract before stated; that, after an investigation had by defendant, plaintiff was refused reinstatement, but, upon plaintiff's request, it was agreed by the general manager of defendant that the question of whether plaintiff was unjustly discharged and entitled to reinstatement should be submitted to the United States Labor Board; that defendant, "acting through its general manager, signed an agreement for a joint submission to the United States Railroad Labor Board in Chicago, Ill., and the plaintiff prepared therein his statement of the cause of said discharge, and undertook to explain the unjustness thereof, and the submission or agreement was likewise signed by the representative of plaintiff, which representative represented the plaintiff as well as plaintiff's organization, and was at that time employed especially to represent the plaintiff, to act as his representative and spokesman, so performing his duties, and said submission so jointly signed by the general manager of the railroad company upon the part of the defendant railroad company and the representative of plaintiff, was submitted to the United States Railroad Labor Board, and, after due notice of the setting, was submitted to the Labor Board for its decision, and by the introduction of proper evidence, with an opportunity for argument from both sides, and after careful and mature deliberation, the United States Railroad Labor Board on or about the 19th day of November, 1921, decided that the plaintiff was unjustly discharged and that he should be reinstated to his former position with seniority rights unimpaired, and that the railroad company, defendant, should pay the plaintiff for all the time lost, less any amount the plaintiff may have earned in other employment since the date of plaintiff's dismissal from the service of the railroad company, and on or about December 9, 1921, after the receipt of the ruling of the United States Labor Board, the defendant advised and requested the plaintiff to return to work as early as possible, and in compliance with said request the plaintiff did return to work, and the defendant likewise requested and allowed the plaintiff until a certain date to file a complete statement of the amount of the time lost and the amount of money which the plaintiff had earned in other employment, and within said time the plaintiff submitted to the defendant a full and complete statement, showing the amount of time he had lost, together with the amount of money he had earned in other employment, and the amount due plaintiff, being the difference between what he would have earned and of what he did earn, amounting to $1,712.74; that said claim showing the amount due plaintiff was presented to the railroad company the ____ day of December, 1921, and plaintiff offered to aid and assist in any manner possible in making the statement complete and full so that the same could be easily understood by the defendant, and, though the defendant immediately complied with that part of the ruling of the United States Labor Board ordering the reinstatement of the plaintiff to his former position with seniority rights unimpaired, the defendant has failed and refused and continues to fail and to refuse to pay to 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."

The defendant answered, pleading: (1) A general demurrer. (2) A general denial. (3) A special plea to the effect that plaintiff is not entitled to recover anything of this defendant by reason of the contract referred to by plaintiff as obligating the railway company under certain circumstances to pay an employee for loss of time while involuntarily off duty on account of an unjustified discharge, for the reason that, under the terms of said contract itself, there must be a finding by the designated railway official pursuant to an investigation to the effect that the discharge is not justifiable, and, while such investigation was held pursuant to the terms of said contract, no order by any party acting in pursuance to the terms of said contract was ever made requiring the railway company to reinstate plaintiff or pay him for any back wages for time lost. In this connection it was alleged that in the investigation pursuant to said contract it was duly and regularly ordered and adjudicated that plaintiff's discharge was justifiable; it reasonably appearing from the evidence there presented that the said Booker was in complicity with a gang of bootleggers who were utilizing railroad equipment in transporting liquor from Mexico into the United States of America in violation of law. (4) A special plea to the effect that plaintiff's discharge was for good cause involving circumstances which would have made it reprehensible if the railway officials had retained him in the services, in that, among other circumstances, plaintiff was discovered in the act of removing a panel in one of the water closets in a passenger coach, and it was found when said panel was completely removed that there was hidden behind the cooler and on the inside of said panel a number of quarts of tequilla, a highly intoxicating liquor manufactured in Mexico, and which evidently had been transported with the knowledge of the said plaintiff into this country for sale. And (5) a special plea to the effect that plaintiff was not entitled to recover anything by reason of the alleged award of the United States Labor Board.

The case was tried in the court below without a jury, and, upon the return of a verdict, judgment was rendered in favor of plaintiff for the amount claimed in the petition. This is the second appeal of the case. The opinion of this court on the former appeal is reported in 287 S. W. page 130.

The evidence upon the trial established plaintiff's employment and service for defendant as alleged in the petition, and his summary discharge from the service on November 30, 1920.

The contract before referred to between the Director General and the railroad labor organization, including the organization on appellant railroad of which the plaintiff was a member, contains the following provisions:

"Rule 35. Grievances: Should any employee subject to this agreement believe he has been unjustly dealt with, or any of the provisions of this agreement have been violated, the case shall be taken to the foreman, general foreman, master mechanic, or shop superintendent, each in their respective order, by the duly authorized local committee or their representatives.

"If stenographic report of investigation is taken, the committee shall be furnished a copy.

"If the result shall be unsatisfactory, the duly authorized general committee, or their representatives, shall have the right of appeal, preferably in writing, to the higher officials designated to handle such matters in their respective order, and conference will be granted within ten days of application.

"All conferences between local officials and local committees to be held during regular working hours without loss of time to committeemen.

"Rule 36. Should the highest designated railroad official or his duly authorized representative and the duly authorized representative of the employees fail to agree, the case shall then be jointly submitted in writing to the chief executive officer of the railroad and the chief executive officers of the railway employees' department of the American Federation of Labor for adjudication or final disposition. ...