St. Louis, Iron Mountain & Southern Railway Company v. Matthews

• Decision Date: 06 November 1897
• Citation: 42 S.W. 902,64 Ark. 398
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MATTHEWS
• Court: Arkansas Supreme Court

42 S.W. 902

64 Ark. 398

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MATTHEWS

Supreme Court of Arkansas

November 6, 1897

Appeal from Pulaski Circuit Court, First Division ROBERT J. LEA Judge.

Judgment reversed and cause remanded for new trial.

Dodge & Johnson, for appellants.

Common carriers are held to a strict accountability for the acts and defaults of their servants. 34 Ark. 613; 43 Ark. 298; 60 Ark 381. It is against public policy to make any contract whereby the railroad company would be in any way hindered or restricted in the discharge of the duty which it owes to the public to employ competent and careful servants. Such a contract is void. 22 W.Va. 600; 4 Humph. (Tenn.) 199; 4 Ohio 400-419; 56 Me. 455; 4 H. L. Cas. 1; Greenwood, Public Policy, 126, 306, 316, 320; Bishop, Non-contract Law, p 1074; ib. § 549; Bishop, Contracts, 473; 59 III. 138; 120 U.S. 663; 18 Pick. 472; 103 U.S. 261, 267, 273; 2 Wall. 45; 89 Ill. 351; 57 Mich. 394; Cooley, Torts, 607; 11 S.E. 829; 9 C. C. A. 664-5; 129 U.S. 657; 18 Pick. 472; 144 U.S. 233-4; 20 Wall. 451; 95 U.S. 660; 129 U.S. 440-1; 101 U.S. 71; 139 U.S. 51; 29 Kas. 169; 48 Ark. 460; 44 O. St. 476-9; 2 Bos. & Pull. 374; 3 Barn. & Ald. 183; 7 Me. 390; 3 Cush. 448; 21 Wall. 448; 101 U.S. 77; 139 ib. 34; S. C. 11 S.Ct. 478; 56 III. 365; 6 Col. 1; 45 Mo. 212; 29 Conn. 528; 27 S.W. 571; 30 S.W. 430; 17 C. C. A. 66; 129 U.S. 440-1; Rorer, Railroads, 833, 1179; 1 Dillon, C. C. 568; 43 N.Y. 149; 35 Mass. 219. The power of the officials of the railroad company to employ and discharge servants, as occasion arises, is a trust, reposed in them, laying on them a duty; and therefore such power cannot be delegated to or shared by others. 1 Mor. Corp. § 536; 2 Utah 344; Law Rep. 1 Ch. 561-3; 2 Sand. 39; 12 R. I. 161; 56 N.H. 341; 4 B. Mon. 186; 40 Me. 186; Hill, Trustees, 279; 31 L. T. Rep. 52; S. C. 9 Ch. 691; L. R. 1 C. P. 674; 21 L. J. Ch. 837. The contract is void for want of mutuality, because it makes it the duty of appellant to retain appellee practically for life, while it provides no guaranty that appellee will not abandon the service whenever he sees fit. 42 Hun, 532; 2 M. & P. 86; 5 Bing. 34; 9 Ad. & E. 693; 3 D. & R. 676; 5 B. & Ad. 109; 1 Cr. & J. 340; 17 C. B. 725; 23 L. J. C. P. 177; Addison, Cont. § 10. The question of whether plaintiff had asked for the investigation provided for is one for the jury.

Rose, Hemingway & Rose, for appellee.

The contract does not so hamper the power of the railway company as to be against public policy. The question of want of mutuality in the contract was not raised below, and cannot now be discussed. The evidence of appellants shows that they did not give the required investigation to the accident. The abstract of appellants does not set out the evidence and the contract fairly, and hence does not comply with the rules of this court.

BATTLE J. BUNN, C. J., dissenting.

OPINION

BATTLE, J.

On or about the 18th day of May, 1894, W. J. Matthews instituted this action against the St. Louis, Iron Mountain & Southern Railway Company. The complaint filed in the action is as follows: "The plaintiff is by profession a locomotive engineer, and has been such for many years, and for over four years past he has been in the employment of the St. Louis, Iron Mountain & Southern Railway Company as such locomotive engineer, working under a contract, a copy of which is herewith filed and made part hereof. By article 1 of said contract it is provided: 'No engineer shall be discharged or suspended without just and, sufficient cause, and, in case an engineer believe 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.'

"By rules 13, 14, 16, and 17 of said contract it is provided that engineers shall be employed and discharged in the order of their seniority, the oldest engineer in service being entitled to be first employed, and the youngest engineer in the service being subject to be first discharged in case the company should reduce its force.

"The plaintiff was one of the oldest engineers in the service of the company, and, there being no possibility of the requirements of the service being diminished to such an extent as ever to necessitate his discharge under the contract, his employment was for life, or during good behavior.

"The plaintiff was earning under that contract from $ 135 to $ 185 per month, and would have continued to earn that sum during the remainder of his natural life, but on the second day of January, 1894, in violation of said contract, and without cause, the plaintiff was by the defendant discharged from its service.

"Plaintiff has pursued the steps required by said article 1 for reinstatement, but the master mechanic of the defendant, acting under its orders, and without cause, refuses to reinstate him in the service.

"The plaintiff therefore prays judgment for the sum of $ 10,000."

Rules 13, 14, 16 and 17, referred to in the complaint, are as follows:

"(13) When, from temporary slackness of business, an engineer in road service is thrown out of employment, he will be reduced from passenger to freight service, from freight to pusher service, and. from pusher to switch-engine service, according to his seniority on the division. If it is necessary to lay off an engineer, the youngest engineer in switch engine service will be taken off. This not to apply to switch engineers who are not eligible to road or pusher service by reason of not having fired on the road, or having waived their rights to same.

"(14) During slackness of business, employment for surplus engineers will be found if possible on other parts of the system where needed, in preference to hiring new men, or promoting men already in service, with the understanding that whoever accepts such temporary transfer will be required to remain until business on his own territory justifies his recall by his own master mechanic. No man to be promoted, or engineer hired during absence of such transferred engineer, and while subject to recall to his own division, unless to meet an emergency or pressing demand of business; in which case such newly hired or promoted engineer shall hold no rights over the absent engineer. Men so transferred will hold seniority rights on their own territory for a period of six months only, unless the master mechanic of the territory to which they are transferred finds it necessary for dispatch of business to retain them for a longer period. Further, they have a preference, in accordance with seniority, to any engine becoming vacant on their own territory over extra men still remaining on said territory. If, after accepting such transfer, they return to their own territory before they are recalled by their own master mechanic, they shall be considered new men on said territory.

"(16) Promotions of engineers will be made according to seniority, from switch-engine service to pusher-engine service, if any on the division, and from pusher service to road service."

"(17) When a passenger engine becomes vacant, the oldest freight engineer on the division where the vacancy occurs is entitled to the same. When a freight engine becomes vacant, the oldest freight engineer in regular service on the division where the vacancy occurs is entitled to the same. When any run becomes vacant, and the engineer entitled to said run refuses same, he loses his right to this run only, but will retain his rights, according to seniority, to next vacancy that may occur. When a passenger run extends over two or more freight divisions, each division is entitled to representation pro rata upon said run, each freight division selecting a representative in turn as may be agreed upon by the divisions interested. In the absence of regular passenger engineer, when the extra passenger engineer is not available, the oldest freight engineer on the division shall be assigned to this service. Any freight engine becoming vacant for a period of fifteen days or more shall be given to the oldest extra freight engineer. No engineer shall be allowed to run on territory other than that to which he is assigned, except in case engineers assigned to such territory are not available. This shall not apply to System's officers' specials."

These rules, among others, were signed only by "Frank Reardon, Superintendent of Locomotive and Car Department," and "Geo. C. Smith, Assistant General Manager."

The defendant, answering, admitted that the defendant was a locomotive engineer, and was in its employ as such on the second day of January, 1894, and that it had entered into an agreement with the engineers in its employment, which became effective on the first of January, 1892, and was in force on January 1, 1894, and that article 1 of the agreement is set out in the complaint; but denied all the other allegations of the complaint, and averred that it discharged him from its service on the 2d of January, 1894, for gross negligence, and stated in what it consisted.

The issues in the case were tried by a jury. In the trial it was shown that the plaintiff was employed by the defendant as a locomotive engineer. It was admitted in the answer that the following article was a part of the contract:

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