Ward v. Kurn

• Decision Date: 15 August 1939
• Parties: A. L. WARD, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF AND FOR ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

132 S.W.2d 245

234 Mo.App. 241

A. L. WARD, RESPONDENT, v. J. M. KURN AND JOHN G. LONSDALE, TRUSTEES OF AND FOR ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Springfield

August 15, 1939

Rehearing Denied September 14, 1939.

Appeal from the Circuit Court of Shannon County.--Hon. Will H. D Green, Judge.

AFFIRMED.

Judgment affirmed.

J. W Jamison and Ward & Reeves for appellants.

A. P. Stone, Jr., for respondent.

FULBRIGHT, J. Allen, J. P., absent; Smith, J., concurs.

OPINION

FULBRIGHT, J.

This suit was instituted in the Circuit Court of Texas County on August 19, 1935. The case was taken on a change of venue to the Circuit Court of Shannon County where plaintiff on January 4, 1938 filed his amended petition, upon which the cause was tried resulting in a verdict and judgment for plaintiff for $ 3000 from which judgment defendants appeal.

The cause of action as stated in plaintiff's petition is for an alleged breach by the defendants and their predecessors of a labor union contract, known as the Yardmen's Schedule. The date of the alleged breach being in December, 1932, or January, 1933, when the receivers for the railroad refused to return plaintiff to service as a switchman under his seniority rights under said contract, the receivers having been appointed and qualified in the Federal District Court for the Eastern District of Missouri, in November, 1932. The Yardmen's Schedule as revised, marked Exhibit A, is attached to and made a part of the petition, which specifically pleads paragraphs b, c and d of article 10 of said Schedule, paragraph c of article 15, paragraphs a, b, and c of article 17, and paragraph d of article 22.

Defendants filed their answer to plaintiff's amended petition admitting, among other things that the St. Louis-San Francisco Railway Company is and was at all times mentioned in plaintiff's petition a corporation, and up until the appointment of receivers and trustees was engaged in transportation as a common carrier of freight and passengers for hire in intrastate and interstate commerce; that by order of the District Court of the United States of the Eastern District of Missouri on or about November 1, 1932, the defendant, Kurn, was appointed receiver of said railway company and about November 5, 1932 defendant Lonsdale was appointed co-receiver; that by order of said court on or about September 26, 1933, Kurn and Lonsdale were appointed trustees of said company in bankruptcy proceedings under and as authorized by section 77 of the Bankruptcy Act of the Congress of the United States; that as such receivers and as such trustees defendants have managed and have operated the railway company and its property continuously since said respective dates. The answer admitted that about November 1, 1919 the railway company executed and entered into a written contract known as the Yardmen's Schedule with the Brotherhood of Railway Trainmen as the duly authorized agent of and for all yardmen in the employ of the railroad company; that the Yardmen's Schedule was revised about April 1, 1924, and that it was in existence as such contract up until the appointment of defendants as receivers and trustees; defendants deny that they have consented to or approved the Yardmen's Schedule as required and permitted by the orders of said Federal District Court, and deny that the Yardmen's Schedule is an existing contract, or ever existed, between them and the Brotherhood of Railway Trainmen; deny that they are obligated or bound to recognize or carry out the terms thereof as pleaded in plaintiff's petition. Defendants admitted that about June 30, 1925 plaintiff entered the employ of the railway company as switchman; that the Yardmen's Schedule attached to plaintiff's petition marked Exhibit A was a contract governing the wages and conduct under which plaintiff entered employment and was employed by the railway company; deny that same was binding upon the defendants as defendants in bankruptcy. The answer further denied that the paragraphs and parts of paragraphs in the Yardmen's Schedule set out in plaintiff's petition was applicable or controlled in the matters complained of in the petition, but that the Yardmen's Schedule then in force between the Brotherhood and the railway company and applicable to the laying off of men on account of reduction in force and returning them to service was controlled by paragraph d of article 10 of said contract. It is further admitted that plaintiff continued in the active service of the railway company as switchman until about December 27, 1931 when he was laid off and his services discontinued on account of reduction in force, and that plaintiff was not thereafter reemployed or returned to the service. The answer denied that such failure so to return plaintiff was on December 18, 1932 as alleged in the petition, and alleges that the railway company had cause on account of the incompetency and unsatisfactory service rendered by the plaintiff to refuse to return him to the service under the Yardmen's Schedule, on or about January 19, 1933. Defendants admitted they have not so returned plaintiff to service but deny they or the railway company broke or breached the Yardmen's Schedule; deny the said contract was binding upon them as trustees or receivers. The answer also challenges the jurisdiction of the trial court.

To this answer, plaintiff filed his reply denying all new matter therein and alleging that defendants, first as receivers and subsequently as trustees of the railway company, continuously from and after the respective dates of their appointments as such operated and are operating the railway company and its property under the Yardmen's Schedule as the contract of employment with the yardmen, and that the defendants at all times stated in the petition, recognized, adopted, ratified, affirmed, held out, assented and consented to, and do now recognize, assent and consent to said Yardmen's Schedule as the contract of employment with all yardmen in the employ of the railway company and the defendants, and that at all times mentioned in the plaintiff's petition plaintiff has relied upon said Yardmen's Schedule and the provisions thereof, and the plaintiff has been informed repeatedly by the defendants, their agents, servants and employees, that the Yardmen's Schedule was in full force and effect and governed the rights of the parties hereto, and that at all times mentioned in the plaintiff's petition the defendants have accepted the benefits which have accrued and are accruing to them under and by virtue of the Yardmen's Schedule, have never departed, nor sought to depart therefrom, and have never changed, nor sought to change the terms and provisions thereof, and that the defendants should, therefore, be estopped to deny that the Yardmen's Schedule has been in force since the dates of their respective appointments as receivers and trustees, or that said Yardmen's Schedule has been or is now binding upon them.

It appears from the evidence that plaintiff worked for the Frisco for a time in 1907 and subsequently for other railroads. He again entered the employment of the Frisco in 1925; was furnished a book known as the Yardmen's Schedule and worked for the company in reliance upon that contract. He kept the book until it was turned over to his lawyer prior to the institution of this suit; that in the language of railroad men a helper or switchman in the Springfield Yards where plaintiff was employed meant the same thing; that during the time he worked for the company no charge in writing was preferred against him nor was he ever accorded a hearing on any charge. It is further disclosed that he was laid off in December, 1931; that he was told at the time by the yardmaster that he was temporarily laid off with other switchmen and was never asked thereafter to turn in the lantern, switch key, or the book; that at the time plaintiff was laid off others had been laid off and others were laid off later; that several men with less seniority and who were junior to him were returned to the service in December, 1932, or January, 1933; that he kept in touch with the yards in Springfield, and that when business improved in December, 1932, they began to take men back into service who had been laid off on account of a reduction in force; that in January, 1933 plaintiff noticed others junior to him and with less seniority had gone back to work. He went to see Mr. Gustin, General Yardmaster, and told him about seeing junior men to him, at work. Mr. Gustin said he did not know why plaintiff had not been returned to work and he asked Mr. Gustin if the Schedule was still in effect. He told him it was, and that he could not do anything about it but advised plaintiff to see Mr. Coppage, Superintendent of Springfield Terminal. He saw Mr. Coppage and asked him if he (plaintiff) was going to work and said he had more seniority than some who had been put back to work and wondered if he was going to work, and Coppage said he did not know; that Mr. Gustin was handling the matter. He asked if the Yardmen's Schedule, which is in evidence, was still in effect and he said it was. He then saw Mr. Sisson, the Superintendent, who also told him that Mr. Gustin was handling the matter and would have to see him. No complaint was made by any of these men concerning incompetency, unskillfulness, or neglect of duty, and plaintiff was given no reason for not being returned to service in order of his seniority; that he had made only about three or four hundred dollars from January 1, 1932 until January 1 of this year although he had tried to get employment all this time.

It is further disclosed by the evidence that Mr. Gustin, the General Yardmaster,...