Union Pac. R. Co. v. Olive, 11200.
| Citation | 156 F.2d 737 |
| Decision Date | 16 July 1946 |
| Docket Number | No. 11200.,11200. |
| Parties | UNION PAC. R. CO. et al. v. OLIVE. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Leo A. McNamee and Frank McNamee, Jr., both of Las Vegas, Nev., for appellant.
Ham & Taylor, A. W. Ham, and Ryland G. Taylor, all of Las Vegas, Nev., for appellee.
Before GARRECHT, MATHEWS, and HEALY, Circuit Judges.
Appellee brought an action against appellants for damages in the sum of $64,742.08 for violation of the agreement hereafter described. Appellants answered, a trial was had, a verdict was rendered against appellants for $8,675.40, and judgment was entered on the verdict. From that judgment this appeal is prosecuted.
Appellee was an employee of appellants from May 9, 1925, to October 20, 1936. He was a carman — an inspector and repairer of cars. On February 25, 1934, he was injured while at work and was thereby disabled. He therefore applied for and obtained leaves of absence covering the period from February 25, 1934, to May 25, 1936. On and after June 3, 1934, he was a member of the Brotherhood of Railway Carmen of America. The Brotherhood was the duly authorized bargaining agency of its members. On November 1, 1934, it made an agreement with appellants for the benefit of its members. The agreement was in writing and was in effect at all times after November 1, 1934. Its pertinent provisions were:
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On or before May 25, 1936, appellee, claiming that he had recovered from his injury and disability, offered to return to work, but was not permitted to do so. This action was commenced on March 31, 1941. The complaint alleged, in substance and effect, that on May 25, 1936, and at all times thereafter appellee was ready, able and willing to perform his duties; that appellants suspended him from service on May 25, 1936, and, without any hearing or investigation, dismissed and discharged him on August 20, 1936; that he had requested appellants to reinstate him and to compensate him for time lost since May 25, 1936; and that they had failed and refused to do so. The answer denied these allegations, but the evidence showed or tended to show that they were true, except that, instead of August 20, 1936, the date of appellee's dismissal and discharge was October 20, 1936. Thus, in effect, the complaint alleged, and the evidence showed or tended to show, that the agreement of November 1, 1934,1 was violated by appellants on May 25, 1936, and continuously thereafter.
The answer alleged that appellee was notified on May 25, 1938, that he would be returned to work if he could pass the physical examination required of carmen. The evidence showed that appellee was notified that he would be returned to work if he waived his claim for compensation for time lost since May 25, 1936, and not otherwise.
The answer alleged that appellee refused to return to work except on condition that he be compensated for time lost since May, 1935. The evidence showed that appellee offered to return to work, unconditionally; that...
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