Wilson v. St. Louis-San Francisco Ry. Co.

• Decision Date: 10 March 1952
• Docket Number: No. 2,No. 42515,LOUIS-SAN,42515,2
• Parties: , 29 L.R.R.M. (BNA) 2568, 21 Lab.Cas. P 66,814 WILSON v. ST.FRANCISCO RY. CO
• Court: Missouri Supreme Court

Page 644

247 S.W.2d 644

362 Mo. 1168, 29 L.R.R.M. (BNA) 2568,

21 Lab.Cas. P 66,814

WILSON v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 42515.

Supreme Court of Missouri, Division No. 2.

March 10, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 14, 1952.

E. G. Nahler, J. L. Homire, C. H. Skinker, Jr. and W. W. Dalton, all of St. Louis, for appellant.

Forrest Boecker, Clayton, for respondent.

BARRETT, Commissioner.

In this action for damages for breach of a railroad-union contract in unjustly and wrongfully discharging the plaintiff as an engineer, the plaintiff, Omie R. Wilson, had recovered a judgment of $14,080.

The action and judgment are against the St. Louis-San Francisco Railway Company, a corporation, and at the outset of its appeal we are confronted with the claim that the court erred in not sustaining its motions and directing a verdict for the railroad for the reason that the plaintiff was never employed by the defendant corporation and, therefore, it did not discharge him. It is the appellant's contention that the employer-employee relationship never existed as between the corporation and the plaintiff. The basis of the contention is that during Wilson's tenure the railroad was operated by trustees and if there was any liability to the plaintiff it was upon the trustees and not the reorganized railroad corporation. In its answer the railroad corporation denied liability to Wilson and all the proof was that during the period in question Wilson was not employed by the railroad corporation, the corporation had no employees whatever, but that Wilson was employed by the trustees. But, despite the plea and these undisputed facts, volume thirteen of the proceedings concerning the reorganization of the railroad in the United States District Court, in the 'Consummation Order and Final Decree,' in paragraph 8.03, 'Transfer of Liabilities of Debtor Trustee,' it is recited: 'From and after the Consummation Date there shall be no liability on the Debtor Trustee for any obligations incurred by him in his official capacity as Debtor Trustee pursuant to the authority of this Court, but the Reorganized Company shall alone become and be liable for any and all such obligations in the place and stead of the Debtor Trustee and shall indemnify and hold the Debtor Trustee harmless against all such obligations and any failure on the part of the Reorganized Company to satisfy them.' The railroad sought to show by cross-examination of the Clerk of the United States District Court that enumerated lists of liabilities and obligations followed this paragraph, the inference being that other liabilities were excluded, but in the circumstances, as the trial court in effect instructed the jury, the question is not debatable and if there is any liability to the plaintiff it is now upon the reorganized corporation. Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 446; Texas & P. R. Co. v. Manton, 164 U.S. 636, 17 S.Ct. 216, 41 L.Ed. 580; 71 C.J.S., Railroads, Sec. 388(b), page 935.

Upon the merits of the appeal the railroad insists, first, that the controversy arose out of a railway labor agreement, a matter within the jurisdiction of the National Railroad Adjustment Board, to which the plaintiff's claim had been submitted, and that board having taken cognizance of the claim obtained exclusive jurisdiction, to the end that courts had no jurisdiction over the subject matter of the suit. The plaintiff's claim or grievance was handled by the local lodge of his union in a hearing before company officials and subsequently was filed by the General Chairman of the Grand Lodge with the National Railroad Adjustment Board where his claim was denied in an ex parte presentation and, therefore, it is urged that the plaintiff's claim and cause of action was res adjudicata and, accordingly, the trial court erred in not directing a verdict for the railroad. The difficulty with the railroad's argument is that the issues upon the record before us are not so simple. If these were the issues necessarily involved in the appeal, as the argument assumes, the railroad's contention would certainly be decisive. The subject of this action was a matter within the jurisdiction of the National Railroad Adjustment Board, 45 U.S.C.A. Sec. 153, but the mere fact that it was a claim or a grievance growing out of a labor agreement, or the mere fact that Wilson was a memeber of the union, did not in and of itself give the board exclusive jurisdiction. The plaintiff had the right of election to proceed before the board or to file this suit at common law, Moore v. Illinois Cent, R. Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, and the question involved here is whether he irretrievably made that election. It Wilson 'voluntarily' prosecuted and submitted his claim to the board, its denial would constitute a bar to his action for damages for breach of contract, Williams v. A. T. & S. F. Ry. Co., 356 Mo. 967, 204 S.W.2d 693; Michel v. Louisville n. r. c/o., 5 Cir., 188 F.2d 224; Kelly v. Nashville, C. & St. L. Ry. Co., D.C., 75 F.Supp. 737; Berryman v. Pullman Co., D.C., 48 F.Supp. 542, but the question here is whether as a matter of fact he did so present and prosecute his claim before the board that its action on the claim is a bar to this suit. More accurately the question involved here is whether Wilson 'in some legally sufficient way' irretrievably authorized his collective agent, the general chairman, to act in his behalf in presenting his claim to the board. Before the union may act in his behalf with conclusive effect authorization to so act must appear 'over and above any authority given by the statute'. Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 1298, 89 L.Ed. 1886, rehearing granted 326 U.S. 801, 66 S.Ct. 86, 90 L.Ed. 488; previous opinion adhered to and expanded 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928. Whether he gave that authorization, and whether he has sustained the burden imposed upon him, under the second Burley opinion, is an inference to be drawn from all the facts and circumstances as submitted in the railroad's instruction four. But the railroad, of necessity, insists that the facts of record show as a matter of law authorization to the general chairman to handle the claim, knowledge by Wilson that it was presented and decided and hence its conclusive effect. As a matter of fact the very thing that the majority of the Supreme Court of the United States, in the second Burley opinion, anticipated as not likely to occur has happened, for Wilson not only claims that he did not voluntarily present his claim to the board, but that he did not authorize the general chairman to present it for him and that he had no knowledge of its presentation or of the action of the board until long after the event. Whether the precise question is determinable as a matter of law or whether it was a question of fact resolved by the jury's finding requires a brief narration of the facts and circumstances.

On June 10, 1944 Wilson was the engineer on a freight train involved in a headon collision with another train near Stoutland, Missouri. As a result of the collision and in accordance with the union contract the railroad gave Wilson notice to appear before the assistant general manager 'with representative of you choice, for investigation in connection with accident fifth 34 and fifth 33 near Stoutland June 10th.' As a result of that hearing and a hearing before the general manager Wilson was dismissed from the railroad service. In those hearings he was represented by the general chairman of his union. Upon receipt of the company's letter of dismissal Wilson, pursuant to union procedure, took his grievance of dismissal up with his local lodge and the local voted to seek his reinstatement. The local chairman presented the claim and the company refused to reinstate him. Wilson says that the local chairman then turned the claim over to the general chairman, in August 1944, and he was likewise unsuccessful in his efforts to secure reinstatement by the railroad officials. Thereafter, on October 3, 1944, the general chairman gave notice to the National Railroad Adjustment Board and the railroad that Wilson's claim or grievance for reinstatement with pay for all time lost would be submitted to the First Division of the board, ex parte, in Chicago. In April 1948 the board denied Wilson's claim. There is no dispute concerning this sequence of events or occurrences except that Wilson categorically denies that he had notice or knowledge of the proceedings before the board or of its decision until after the event. He stated that he never received a copy of any letter, notice or document concerning the claim before the board.

He admits that he talked to the general chairman when the claim was turned over to the chairman in August 1944 but he says that the principal subject of conversation concerned awaiting the arrival of the Interstate Commerce Commission's report and investigation of the wreck. He said that the chairman talked about taking the case to the National Railroad Adjustment Board, but he said, 'I had sued the Locomotive Firemen and Enginemen for insurance claim before, so they were sore at me, so I told him that I wouldn't think of going to the Labor Board, because if the Frisco officials could get the representative of the Interstate Commerce Commission and entertain him so and he would give false report about me, why, they could sure fix me up; and five-men jurisdictional board representing the employees and five representing the railroad, and taking the one off, there would be your majority, and I said I wanted him to withdraw the engineers from service, and he wasn't going to do that for one man, and I said, 'Well, that affects all engineers on the Frisco system,' and I said, 'Forget about my case,' I would handle it myself through the courts.' He admits that at the instigation of the general chairman, on August...