Williams v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 08 September 1947
• Docket Number: 40144,40145,40143
• Citation: 204 S.W.2d 693,356 Mo. 967
• Parties: Eldon Williams, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation, Consolidated With; Frank E. Thomas, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation, and Ervin S. Neis, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation
• Court: Missouri Supreme Court

204 S.W.2d 693

356 Mo. 967

Eldon Williams, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation, Consolidated With; Frank E. Thomas, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation, and Ervin S. Neis, Appellant, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation

Nos. 40144, 40145, 40143

Supreme Court of Missouri

September 8, 1947

Motion for Rehearing or to Transfer to Banc Overruled October 13 1947.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

W L. Cunningham, Phineas Rosenberg and Philip J. Close for appellants.

(1) Appellants' seniority rights on the Pecos Division were valuable property or contract rights. McCoy v. St. Joseph Belt Ry. Co., 229 Mo.App. 506, 77 S.W.2d 175; Brand v. Pennsylvania R. Co., 22 F.Supp. 569; Ward v. Kurn, 234 Mo.App. 241, 132 S.W.2d 245; Primakow v. Railway Exp. Agency, 56 F.Supp. 413; Crisler v. Crum, 115 Neb. 375, 213 N.W. 366; Dooley v. Lehigh Valley R. Co., 130 N.J.Eq. 75, 75 A.2d 335. (2) Respondent and the bargaining agent recognized and admitted that appellants had seniority rights as "hired" men on the Pecos Division: that appellants were not "borrowed" men on that division: and that Article XVII of the schedule did not apply to appellants. State v. Deak, 108 Mo.App. 292, 83 S.W. 315; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Schultz v. Moerschel Products Co., 142 S.W.2d 106. (3) The seniority rights guaranteed by the schedule are for appellants' benefit, even though non-members of the brotherhood. Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310; Yazoo & M.V.R. Co. v. Webb, 64 F.2d 902; Ill. Cent. R. Co. v. Moore, 112 F.2d 959; Hudson v. Cin. & L.C. Ry. Co., 152 Ky. 711, 154 S.W. 47. (4) These seniority rights belong to the appellants and not to the brotherhood or the bargaining agent. Ill. Cent. R. Co. v. Moore, 112 F.2d 959; Primakow v. Ry. Exp. Agency, 56 F.Supp. 413; Piercy v. L. & N.R. Co., 198 Ky. 477, 248 S.W. 1042; Stephenson v. N.O. & N.E.R. Co., 177 So. 509; Railway Exp. Agency v. Order of R. Tel., 137 F.2d 46. (5) These seniority rights, being appellants' exclusive, individual property, could not be waived, altered or destroyed by the bargaining agent or the brotherhood or respondent without appellants' consent. Piercy v. L. & N. Ry. Co., 198 Ky. 477, 248 S.W. 1042; Stephens v. Noschange, 199 S.W. 706; Primakow v. Ry. Exp. Agency, 56 F.Supp. 413; Ill. Cent. R. Co. v. Moore, 112 F.2d 959. (6) Because the acts of Keiser and Eastham in filing the protests against appellants' 1936 seniority dates and in taking appellants' 1936 seniority rights away retroactively at the protest hearing meeting held October 28, 1937, did not bind appellants since Keiser and Eastham were not appellants' agents authorized to represent appellants, but were adverse and hostile to appellants. Steele v. L. & N.R. Co., 323 U.S. 192, 65 S.Ct. 226; Elgin J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282; Primakow v. Railway Exp. Agency, 56 F.Supp. 413; Piercy v. L. & N. Ry. Co., 198 Ky. 477, 248 S.W. 1042; McFarland v. Dixie Machy. Co., 348 Mo. 341; Murphee v. Brotherhood, etc., 173 P.2d 926; Griffin v. Gulf, etc., R. Co., 21 So.2d 814; Alquist v. Alaska-Portland Packer's Assn., 39 F.2d 349; Morgan v. Aldridge, 114 Mo.App. 700, 91 S.W. 1024; 2 C.J.S., p. 1041, sec. 15; 2 C.J. 545, sec. 176; Natl. Labor Rel. Board v. Knoxville Pub. Co., 124 F.2d 875; Wallace Corp. v. Natl. Labor Rel. Board, 323 U.S. 255, 65 S.Ct. l.c. 241; McCoy v. St. Joseph Belt Ry., 229 Mo.App. 506, 77 S.W.2d 175; 2 C.J., pp. 692, 693, sec. 353. (7) Appellants' seniority rights are property within the protection of the Fifth Amendment of the Federal Constitution. The judgment of the court violates such provision in holding that appellants could be deprived thereof retroactively by a ruling of expediency without notice or opportunity of a hearing. Steele v. L. & N.R. Co., 323 U.S. 192, 65 S.Ct. 226; Nord v. Griffin, 86 F.2d 481, certiorari denied 300 U.S. 673, 57 S.Ct. 612; Griffin v. Chicago Union Station, 13 F.Supp. 722; Evans v. L. & N.R. Co., 191 Ga. 395, 12 S.E.2d 611; Stephenson v. N.O. & N.E.R. Co., 177 So. 509; Watson v. M., K. & T. Ry. Co., 173 S.W.2d 357. (8) All the evidence is undisputed and is insufficient to support the judgments for respondent and under such evidence each appellant is entitled to judgment against respondent. The court erred in not so finding and in not rendering judgment for appellants. Steele v. L. & N.R. Co., 323 U.S. 192, 65 S.Ct. 226; State v. Edwards, 345 Mo. 929, 137 S.W.2d 447; 2 C.J. 545, sec. 176; Secs. 114, 140, General Code for Civil Procedure, Laws 1943; Dodd v. M.-K.-T.R. Co., 353 Mo. 799, 193 S.W.2d 905.

John H. Lathrop, Sam D. Parker and William J. Milroy for respondent.

(1) At the meeting in Amarillo, Texas, October 28, 1937, the schedule upon which appellant's cause of action is based was interpreted, as therein provided, by the authorized representatives of appellant and respondent which interpretation is binding on appellant and all members of his group and under said interpretation he had only temporary seniority rights for a period of six months after October 17, 1936. Elder v. N.Y. Central Ry. Co., 152 F.2d 361; Lewellyn v. Fleming, 154 F.2d 211; certiorari denied, 67 S.Ct. 45; 142 A.L.R., p. 1059; O.R.C. v. Shaw, 119 P.2d 549; Elgin, Joliet & Eastern R. Co. v. Burley, 325 U.S. 711, 327 U.S. 661, 66 S.Ct. 721; Mosshamer v. Wabash, 191 N.W. 210; Long v. B. & O., 141 A. 504; Harris v. Mo. Pac., 1 F.Supp. 946; Aulich v. Craigmyle, 59 S.W.2d 560; Ross Lodge v. B.R.T., 254 N.W. 590; Ryan v. N.Y.C., 255 N.W. 365; Donovan v. Travers, 188 N.E. 705; Casey v. B. of L.F. & E., 266 N.W. 737; Franklin v. Pennsylvania, 193 A. 712; Hartley v. Bro. Clerks, 277 N.W. 885; B.R.T. v. Price, 126 S.W.2d 74; Webb v. C., R.I. & P., 136 S.W.2d 245; Noles v. Term. Assn., 154 S.W.2d 606; L. & N. v. Miller, 38 N.E.2d 239; Boblitt v. C.C.C. & St. L., 56 N.E.2d 348; Div. 525 v. Gorman, 133 F.2d 273; Elder v. N.Y.C., 152 F.2d 361; Earle v. Illinois Central R., 167 S.W.2d 15; Steele v. L. & N.R. Co., 323 U.S. 192. (2) Appellant is estopped from contending that he had permanent seniority rights from October 17, 1936, because, at the time he was working on the Pecos Division in 1936 and the first part of 1937, he knew he was a "borrowed" man and made no protest until after November 1, 1937. (3) Appellant has twice submitted his claim to the National Railroad Adjustment Board; the Board has twice considered the claim and held that appellant's claim had been disposed of in accordance with the Collective Bargaining Agreement between respondent and the duly designated bargaining agent of appellant. 45 U.S.C.A. 153, sec. 3(m); Berryman v. Pullman Co., 48 F.Supp. 542; Switchmen's Union v. Natl. Mediation Board, 320 U.S. 297; Austin v. Southern Pacific, 123 P.2d 39. (4) Appellant's authorities relate only to the general subject of established seniority rights and not to the issues in this case. Steele v. L. & N., 323 U.S. 192; Piercy v. L. & N. Ry. Co., 248 S.W. 1042; Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711; Nord v. Griffin, 86 F.2d 481; Griffin v. Chicago Union Station, 13 F.Supp. 722.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Appellants, Eldon Williams, Frank E. Thomas and Ervin S. Neis, each filed suit against respondent, The Atchison, Topeka and Santa Fe Railway company, seeking damages for a violation of seniority rights as locomotive firemen. The suits were consolidated for trial and submitted on an agreed statement of facts and some oral evidence offered by appellants. It was agreed that the Thomas and Neis cases would abide the result in the Williams case. At the close of the evidence respondent moved for judgment, which the trial court sustained. Appeals were taken to this court and the cases were consolidated. It was agreed that if appellants were successful the judgment in each case should be in the sum of $ 7,525, hence, appellate jurisdiction in this court.

Since it was stipulated that the Thomas and Neis cases will abide the result in the Williams case we will consider the latter case only. The history of Williams' employment by respondent, as disclosed by the evidence, is about as follows: Williams established a seniority status on the Panhandle Division of respondent's railroad lines as of June 26, 1926. It may be stated here that each division has its own seniority roster. Williams, at the time of the trial, was still holding that seniority date on the Panhandle Division and that seniority rating is not in dispute in this case.

Employees such as railway firemen and enginemen, in each division are divided into three groups: First, those in regular service, which of course are those holding the oldest seniority rights; second, those on the extra board who are called for service when there are no men on the regular board available for duty; third, those on furlough, consisting of those men not needed for service until there is room on the extra board. When there is a slack in business in a particular division of the railroad the men at the bottom of the list on the regular board may be pushed back to, or placed on the extra board and then the lowest on the extra board may become furloughed men and not considered in service. These furloughed men, however, do not lose their seniority. They must, when called, return to work within thirty days and are then placed on the extra board. When business on the railroad improves furloughed men are preferred over new men applying for work. The evidence reveals that it was the custom of the defendant railroad, in case all men on the regular board, the extra board and the furloughed men were put in service and more...