St. Louis, Iron Mountain & Southern Railway Co. v. Broomfield

• Decision Date: 03 June 1907
• Citation: 104 S.W. 133,83 Ark. 288
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BROOMFIELD
• Court: Arkansas Supreme Court

104 S.W. 133

83 Ark. 288

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

Supreme Court of Arkansas

June 3, 1907

Appeal from Hot Springs Circuit Court; Alexander M. Duffie, Judge reversed.

Judgment reversed and remanded.

T. M Mehaffy and J. E. Williams, for appellant.

These actions were improperly consolidated by the lower court. Neither § 6075 nor § 6083, Kirby's Digest authorizes the proceedings adopted in this case, and the idea that the act of May 11, 1905, authorizes the consolidation of divers actions against one defendant is not supported by the act itself nor by the construction placed upon the identical provision by the United States Courts. Rev. Stat. U. S. § 921; 145 U.S. 293; 41 F. 249.

At various times this court has reversed for the consolidation of causes when the parties were not the same. 65 Ark. 216; 62 Ark. 616; 71 Ark. 339; 84 S.W. 1043. At common law the right to move for consolidation was limited to the defendant. The plaintiff could have such an order only by the defendant's consent, and in any case the court had a controlling discretion. Tidd's Practice, 614; 3 Serg. & Rawle, 262; 1 Woodward (Pa.), 189.

H. B. Means, for appellees.

Under the statute the causes were properly consolidated. Acts 1905, p. 798. The act only makes it the duty of the court to look to the causes of action and not to the parties. If the order of consolidation were erroneous, the cause would not be reversed for that reason unless prejudice resulted, and that is not shown.

2. Appellees having worked for no foreman except Ferguson, they had the right to presume that he alone had authority to discharge them. 3 Elliott on Ev. § 1635.

OPINION

HILL, C. J.

Morris Bloomfield, Harry Hill, Jack Taylor, Rufus Graham and George Turner, laborers in a section gang on appellant railroad, claimed to have been discharged on the 22d of December, 1905, from its service, and that their wages remained unpaid for more than seven days. They brought suit in a justice's court for the same and penalties, under section 6649 of Kirby's Digest. After judgment in the justice's court the cases were appealed to the circuit court, and there, upon motion, were consolidated. The trial resulted in separate verdicts in behalf of each of the plaintiffs. Before judgment the wages claimed to be due each plaintiff except Morris Broomfield were paid, and this left only the issue as to the penalties for the jury. In Morris Broomfield's case the issue whether there were any wages due him went to the jury, and they found $ 2.50 in his favor, and $ 247.50 as penalty. The jury gave each plaintiff a verdict for $ 247.50 penalty, and the railroad has appealed from judgments rendered on these verdicts.

1. Prior to the act of May 11, 1905 (Acts of 1905, p. 798), there could be a consolidation of actions only where there were several suits pending in the court between the same parties on causes of action which might be joined. Kirby's Digest, § 6083. The court then in its discretion might order such suits to be consolidated into one action. See construction of this statute in Garibaldi v. Wright, 52 Ark. 416, 12 S.W. 875, and Meehan v. Watson, 65 Ark. 216, 47 S.W. 109.

The act of May 11, 1905, is as follows: "When causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so." Acts 1905, p. 798. This is a copy of section 921 of the Revised Statutes of the United States, and said section, as construed in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 36 L.Ed. 706, 12 S.Ct. 909, leaves to the discretion of the trial court the consolidation of actions of like nature and relative to the same questions pending before the court, without reference to the identity of the parties and without restriction as to causes of action which might be joined in the same suit.

These actions grew out of the discharge of a section work crew by the same man at the same time and were of like nature and were relative to the same matter. It is only for the purpose of correcting an abuse of discretion in consolidating cases that the rulings of the trial courts are reviewable. The court finds no abuse of discretion in consolidating these cases. In fact, the statute seems to govern just such cases as these in order to save a repetition of evidence and an unnecessary consumption of time and costs in actions depending upon the same, or substantially the same, evidence or arising out of the same transaction.

2. The testimony of Broomfield shows that he is not entitled to recover any penalty. His testimony is hard to understand, and is full of inconsistent statements, which may be due to his lack of understanding of the questions more than anything else. He appears to be an ignorant negro. The substance of his testimony, as gathered from the record, is this: That he worked six days for the company as section hand in November, and when he received his pay for his November work, about the 18th of December, he received pay only for four days, leaving due to him $ 2.50 for two day's work at $ 1.25 per day; that he spoke to his foreman about the error, and the foreman promised to correct it, and said that he would turn the additional $ 2.50 due him into the time of one Turner, a fellow workman of his, and that it would be paid through Turner's account at the next pay day. To this Broomfield agreed.

It is impossible to determine definitely...