Summary
In Moore v. Illinois Central R.R., 180 Miss. 276, 176 So. 593 (1937), a suit by employee against his employer for wrongful discharge, the contract provided for the presentation of grievances to the superintendent and then to the officers of the employer.
Summary of this case from Jenkins v. Schluderberg, Etc., Co.Opinion
No. 32860.
November 8, 1937. Suggestion of Error Overruled January 3, 1938.
1. MASTER AND SERVANT.
A contract between railroad and trainmen's union, which included wage schedules, was valid and prevented railroad from discharging trainman at will, and member of union could sue thereon, though he himself had not agreed to work for railroad for any definite time.
2. MASTER AND SERVANT.
In trainman's action against railroad for breach of contract of employment, seeking damages for railroad's allegedly wrongful discharge in violation of contract with trainmen's union, but not seeking restoration to employment, that trainman appealed from order of discharge but thereafter abandoned his appeal did not preclude recovery.
3. JUDGMENT.
Where judgment was rendered for railroad in trainman's action for damages because railroad had given trainman too low a place on seniority roster, wherein railroad's subsequent discharge of trainman was pleaded only as limiting damages, on ground of trainman's failure to file written protest within 30 days, such judgment was not res judicata in trainman's subsequent action against railroad for damages wherein wrongfulness of discharge was basis of recovery.
4. LIMITATION OF ACTIONS.
A trainman's action against railroad for damages for wrongful discharge contrary to contract between railroad and trainman's union was based on written contract with union rather than on verbal contract of employment, and hence was subject to 6-year rather than to 3-year statute of limitations (Code 1930, sections 2292, 2299).
APPEAL from the circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Chalmers Potter, of Jackson, for appellant.
This court, at the last term, in the case of McGlohn v. Gulf Ship Island Railroad Company, 174 So. 250, has completely disposed of the questions raised by the first and second special pleas. In the McGlohn case, suit was filed by McGlohn, a conductor on the Gulf Ship Island Railroad Company and a member of the Order of Railroad Conductors, for McGlohn's wrongful discharge by the railroad in violation of the contract had between the Order and the railroad. To the declaration the defendant demurrer and, among other grounds of demurrer, assigned that the contract was unenforceable for the reason that it was unilateral and lacked mutuality and terminable at the will of either party. The lower court sustained the demurrer, and in reversing the lower court and in distinguishing between the Rape case, 136 Miss. 38, which was a contract between a single individual and the railroad, and a labor union contract, this court said: "We are of the opinion that the contract of the union was not void, for the reason that it is terminable at the will of either party. True it is that the employee was not bound to a state of servitude for life, and that the particular conductor here could have left the service if and when he pleased so to do. The contract, fairly interpreted, is that the railroad company agreed with these employees that the length of service of the particular employee, so far as the railroad was concerned, would be until a trial — completely under the control of the employer — should be had in accordance with Article 30 and might be terminated in the manner therein provided; in other words, while the railroad company, generally, may have the right to terminate the contract at its will, a solemn stipulation was made by it by which it is bound not to exercise such will in a summary manner, but in a certain well defined manner and by a stipulated course of procedure. We conclude that this section was a material, substantial part of this contract by which appellant was induced to enter into and continue in this employment, and a part of the promised consideration therefor.
"We think this stipulation takes the particular case from under the rule as announced in the case of Rape v. Mobile Ohio R. Co., 136 Miss. 38, 100 So. 585, 35 A.L.R. 1422. In that case the employees of the railroad went on a strike during which time appellant applied and was employed by the railroad company, with the promise of a permanent position, but afterwards, when the strikers returned to work, was discharged. Rape contended that he had entered the service of the railroad company on an oral agreement of permanent employment. It was there held that the contract was terminable at the will of the railroad company, and, further, that it did not come within the exception because the contract of employment was not supported by an independent consideration moving from the employee to the employer."
While this case, in our opinion, disposes of the questions raised by the first and second special pleas in favor of the position we take, the decision of this court in the McGlohn case is strictly in line with modern thought and supported by the overwhelming weight of authority of modern cases.
Maisel v. Sigman, 205 N.Y. Sup. 807; Nederlandoch, etc., v. Stevedore Society, 265 Fed. 397; St. Louis B. N.R.R. Co. v. Buckner, 5 S.W.2d 859; Y. M.V.R.R. v. Webb, 64 F.2d 902; Galveston v. J.S.A.R.R. Co., 42 S.W.2d 475; San Antone A.P.R.R. Co. v. Collins, 61 S.W.2d 84; Gary v. Central of Georgia, 141 S.E. 821; Johnson v. American R.R. Exp. Co., 161 S.E. 476.
The agreement between Brotherhood of Railroad Trainmen and defendant is a contract.
The rule in Mississippi is that where a question of discipline, policy, or doctrine is involved, the party to the contract must pursue the remedies provided for in the contract, but where a money demand is sought the plaintiff may immediately, and without regard to any requirement of the contract to exhaust his remedies as provided for in the contract, appeal to the courts for an adjudication of his rights.
Independent Order of Sons Daughters of Jacob of America v. Wilkes, 53 So. 493; Eminent Household of Columbia Woodmen v. Ramsey, 79 So. 351; Eminent Household of Columbia Woodmen v. Payne, 88 So. 454.
We therefore take it that the rule is firmly established in this court that an attempt by the parties to require a person with a money demand to appeal to the higher officers of the defendant corporation before he can institute a suit is contrary to the public policy and void, because the law, and not the contract, prescribes the remedy, and the parties have no more right to enter into stipulations fettering their rights to resort to the courts for their remedy in a given case, than they have to create a remedy prohibited by law.
We most respectfully submit that where the contract merely gives to the plaintiff the right of appeal and does not require him to perfect the appeal, that this is merely an additional right granted to the plaintiff by the contract and it is not obligatory upon him to exhaust his remedies provided in the contract before resorting to the courts.
Locomotive Engineers' Mut. Life Acc. Ins. Assn. v. Higgs, 135 N.E. 353; Supreme Lodge v. Day, 49 P. 74; Supreme Lodge K.P. v. Andrews, 67 N.E. 1009; Bowers v. Sampson's Lodge of K.P., 1 N.E. 571; Voluntary Relief Dept. of Pa. Lines v. Spencer, 46 N.E. 47; Grand Lodge of Brotherhood of Railroad Trainmen v. Randolph, 57 N.E. 882.
We most respectfully submit that the position taken by the defendant railroad company is indefensible because, first, such a provision is contrary to the public policy of Mississippi, and secondly, the right of appeal as granted by the contract is merely permissive, not obligatory, and the plaintiff had the right to exercise it or not, as he saw fit.
The plea of res adjudicata is not maintainable under the pleading.
Among the necessary elements to render the adjudication in the former case a bar to the maintenance of the instant suit, these two elements must concur: first, there must be an identity of causes of action, and, secondly, there must be an adjudication on its merits in the former suit of the precise issues involved in the instant case. If either of these two elements is lacking, the former adjudication does not act as a bar or an estoppel to the maintenance of the instant suit.
34 C.J. 805-806.
There is no identity of causes of action in the two suits. All of the authorities lay down the rule that the most commonly accepted test as to whether there is an identity of causes of action between the former suit and the pending suit is whether the same evidence is necessary to sustain both judgments.
15 R.C.L. 964-5; Freeman on Judgments (5 Ed.), page 1447, par. 687.
We most respectfully submit that if an identity of causes of action must concur between the two suits to render a plea res adjudicata a bar to the maintenance of the second suit, and, further, if the proper test of identity of causes of action is the test laid down in the above authorities there is no such identity of causes of action between No. 8232 and the instant suit as will bar the maintenance of the latter. Why do we say this? For the reason that there is not a single element of evidence necessary to maintain the allegations of the declaration the two suits, and to sustain a judgment thereon common between the two.
Freeman on Judgments (5 Ed), page 1457, par. 690, page 1630, par. 769, page 1636, par. 770; True-Hixon Lbr. Co. v. Thorn, 158 So. 909; Russell v. Place, 4 Otto 606, 24 L.Ed. 214; DeSollar v. Hanscome, 158 U.S. 216, 39 L.Ed. 956; Susi v. Davis, 97 A.L.R. 1222; Hardy v. O'Pry, 102 Miss. 213; Moore v. Chat. Elec. R.R. Co., 109 S.W. 497, 16 L.R.A. (N.S.) 978.
Opposing counsel contends that inasmuch as Moore was not bound by the contract between the labor union, of which he was a member, and the railroad company to perform any services that it is only when he becomes an employee and continues in the employment of the railroad company with knowledge of the existence of the contract with the union that a binding contract between Moore and the railroad becomes effective and that this is a verbal contract and governed by the three year statute of limitations instead of the six-year statute applicable to written instruments.
We most respectfully submit that this is not the law. The contract herein sued on was a contract in writing entered into by and between the brotherhood and the defendant for Moore's benefit. It has been held by this court that the contract entered into by the union and the rights secured by this contract, which is a written contract, are the individual rights of the members of the union, which may be enforced directly by the individual.
If the individual member of the union may maintain an action based upon a contract made by the union and if this contract is in writing, we most respectfully submit that the action is an action based upon a written contract made by another for the benefit of the plaintiff, and therefore governed by the six-year period of limitation.
May Byrd, of Jackson, and Burch, Minor McKay, of Memphis, Tenn., for appellee.
Moore's contract of employment was unilateral and terminable at will.
Bolles v. Sachs, 37 Minn. 315; M.K. T. Ry. v. Bagley, 60 Kan. 424, 56 P. 759; Wilkinson v. Heavenrich, 26 N.W. 139; Morrow v. Southern Express Co., 28 S.E. 998; Greenberry Dorsey v. Packwood, 12 How. 126, 13 L.Ed. 921; St. Louis Iron Mountain Southern Ry. v. Mathews, 64 Ark. 398, 42 S.W. 902, 39 L.R.A. 467; East Line R.R. Railroad v. Scott, 72 Tex. 70; Davis v. Davis, 151 N.E. 134; Combs v. Standard Oil Co., 166 Tenn. 88, 59 S.W.2d 526; Rape v. Mobile Ohio R. Co., 136 Miss. 38; Hudson v. C.N.O. T.P.R. Co., 152 Ky. 711, 154 S.W. 47; Warden v. Hinds, 163 Fed. 201, 25 L.R.A. (N.S.) 529; Savannah F. W. Ry. v. Willett, 31 So. 246; Bentley v. Smith, 59 S.E. 720; 1 Williston on Contracts, 59 and 61; C. G.E.R.R. Co. v. Dane, 43 N.Y. 240; L. N.R.R. Co. v. Offutt, 99 Ky. 427, 59 A.S.R. 467; Elmore v. Atlantic, etc., Ry., 191 N.C. 182, 43 A.L.R. 1072; Boyer v. Western Union Tel. Co., 124 Fed. 246; Reasonor v. Watts, 51 L.R.A. (N.S.) 629; Labatt on Master Servant, page 328, sec. 89; 18 R.C.L., page 494, sec. 4; 13 C.J., page 337, sec. 188, and page 341, sec. 192; 9 Cyc. 327; 39 C.J., 71.
The labor union contract affords Moore no right of action.
We submit that under the authorities hereinbefore cited the contract or schedule between the railroad company and the Brotherhood of Railroad Trainmen was not such a contract as would afford Moore a right of action for an alleged breach of his individual contract of employment, and especially do we contend that insofar as such contract is executory no action will lie thereon in favor of Moore.
Having abandoned his appeal under the labor union contract, plaintiff cannot maintain this suit.
Mitchell v. Y. M.V.R.R. Co., 173 Miss. 594, 161 So. 860; Caulfield v. Y. M.V.R.R. Co., 127 So. 585; St. Louis, B. M. Ry. v. Booker, 5 S.W.2d 856; Adams v. So. Pacific Co., 204 Calif. 63, 58 A.L.R. 1066; Adams v. Southern Pac. Co., 57 A.L.R. 1070; 9 C.J. 774, sec. 115; Memphis Trust Co. v. Brown- Ketchum Iron Works, 166 Fed. 398; Mitchell v. Dougherty, 86 Fed. 856; 39 C.J. 73, sec. 62; Independent Life Ins. Co. v. Williamson, 154 S.W. 409, 152 Ky. 818.
The plea of res adjudicata was properly sustained.
Moore v. Y. M.V.R. Co., 176 Miss. 65, 166 So. 395; Bates v. Strickland, 139 Miss. 636; Dean v. Board of Sup'rs, DeSoto County, 135 Miss. 268; Vinson v. Colonial U.S. Mortgage Co., 116 Miss. 59; Harvison v. Turner, 116 Miss. 550; Hardy v. O'Pry, 102 Miss. 197.
The plaintiff's suit is barred by three-year statute of limitations.
Section 2299, Code of 1930.
Argued orally by Chalmers Potter, for appellant, and by J.L. Byrd, for appellee.
The appellant sued the appellee on an alleged breach of a contract of employment. The appellee filed six special pleas. Demurrers by the appellant to the first four pleas were overruled. The appellant replied to the fifth plea and a demurrer to his replication was sustained, as was also his demurrer to the appellee's sixth plea. The appellant declined to plead further, and judgment final against him was rendered.
The declaration alleges, in substance, that on and long prior to February 15, 1933, the plaintiff was a member of the Brotherhood of Railroad Trainmen, with which the defendant had entered into a contract which provided the rules, rates of pay, etc., for trainmen employed by it. That the plaintiff had been employed by the defendant as a trainman since June 2, 1926, and on November 13, 1926, the defendant, in accordance with its contract with the Brotherhood of Railroad Trainmen, published a seniority roster for its trainmen, giving the plaintiff No. 52 thereon. Under the provisions of the contract, the trainmen were given work by the defendant according to their seniority on this roster, and, among other things, the contract provided that no employee should be discharged by the defendant without just cause. That although the plaintiff had rendered the defendant faithful and efficient service, and was ready, willing, and able to so continue, he was arbitrarily discharged by the defendant on February 15, 1933, since which he has been unable to obtain employment, to the damages of the plaintiff in the sum of $3,000. The Brotherhood of Railroad Trainmen's contract was filed as an exhibit to the declaration, and is practically identical with the one under consideration in Moore v. Yazoo M.V.R. Co., 176 Miss. 65, 166 So. 395, and McGlohn v.v. Gulf S.I.R.R. (Miss.), 174 So. 250.
The first three of the appellee's pleas allege, in substance: The first plea, that the employment of the plaintiff was not for a definite time, and was terminable at will; the second plea, that the contract sued on is unilateral, there being no agreement on the part of the plaintiff to perform any services whatever for the defendant, and was without consideration; the third plea, that the contract sued on was not one of hiring between the plaintiff and the defendant, but was merely a schedule of wages governing yardmen and switchmen, and that by it no switchman was employed for any specific period, no switchman agreed to perform any service for the defendant for any specified time, and, therefore furnishes no basis for a recovery by the plaintiff.
These pleas seem to be, in fact, demurrers, but aside from that, the demurrers thereto should have been sustained under McGlohn v. Gulf S.I.R.R., supra, wherein the court held that a contract by a labor union with an employer, similar to the one here, was: (1) Valid; (2) that a member of the labor union which made the contract could sue thereon, although he had not, himself, agreed to work for the employer for any definite time; and (3) could not be discharged by the employer at will. That case was decided after the trial in the court below of the case now under consideration.
The fourth plea set forth a provision of the contract sued on, reading as follows: "(d) Yardmen or switchtenders taken out of the service are censured for cause, shall be notified by the Company of the reason therefor, and shall be given a hearing within five days after being taken out of the service, if demanded, and if held longer shall be paid for all time so held at their regular rate of pay. Yardmen or switchtenders shall have the right to be present and to have an employee of their choice at hearings and investigations, to hear the testimony, and ask questions which will bring out facts pertinent to the case. They shall also have the right to bring such witnesses as they desire to give testimony, and may appeal to higher officers of the Company in case the decision is unsatisfactory. Such decision shall be made known within three days at New Orleans and at other points ten days after the hearing, or yardmen or switchtenders shall be paid for all time lost after the expiration of three days at New Orleans and ten days at other points. In case the suspension or dismissal or censure is found to be unjust, yardmen or switchtenders shall be reinstated and paid for all time lost." It then alleges, in substance, that when the appellant was discharged on February 15, 1933, he was notified thereof, in writing, by the defendant's superintendent, whereupon the plaintiff notified the superintendent in writing that he desired a hearing on his discharge, which request was complied with by the superintendent. While the plea does not so allege, it is clear therefrom that the superintendent declined to reinstate the plaintiff, whereupon he gave written notice to the defendant that he desired to appeal from this ruling of the superintendent. The defendant, through its proper officers, advised the plaintiff that a hearing on this appeal would be accorded him on a named date, but the plaintiff failed to appear and abandoned his appeal, because of which he is without the right to maintain this suit.
The appellant is not seeking to be restored to the appellee's employment, nor does his complaint involve any question of discipline or policy arising under the contract. It includes only his right, vel non, to damages, because of his alleged discharge by the appellee, for the determination of which the courts are open to him without his having exercised his right to attempt to gain his reinstatement in the appellee's employ by appealing from its superintendent to his superior officers. Independent Order of Sons Daughters of Jacob v. Wilkes, 98 Miss. 179, 53 So. 493, 52 L.R.A. (N.S.) 817; Eminent Household of Columbian Woodmen v. Ramsey, 118 Miss. 454, 79 So. 351, and Eminent Household of Columbian Woodmen v. Payne, 18 Ala. App. 23, 88 So. 454. The demurrer to this plea should have been sustained.
The fifth plea is one of res judicata, and alleges, in substance, that on October 15, 1932, the plaintiff sued the defendant in the First district of Hinds county, in a cause appearing there as No. 8232, and on February 23, 1933, filed an amended declaration therein alleging that he had been given a lower place on the defendant's seniority roster, resulting in his being, in effect, discharged, by reason of which he had been damaged. After the filing of this amended declaration, the defendant filed the following third special plea: "Now comes the defendant, Illinois Central Railroad Company, by its attorneys, and for a further and special plea to the declaration herein, says that in any event, the plaintiff is not entitled to recover pay for any time after the 15th day of February, 1933, because it says that on said 15th day of February, 1933, it notified the said plaintiff, Earl Moore, in writing, that his services were no longer desired, and that his employment was at an end, and his said employment with this defendant did end on said date and any right the said Moore might have had to work for the defendant ceased on said date." To this plea, the appellant replied as follows: "And now comes the plaintiff and for replication to the third special plea of the Illinois Central Railroad Company heretofore filed herein says that nothing therein contained should defeat or prevent the maintenance of plaintiff's cause of action, because it is alleged in the declaration and in the exhibits annexed thereto under Article 17 of said Exhibit, the following, `No switchman will be discharged or suspended without just cause,' and said special plea does not allege that the said defendant, Illinois Central Railroad, had any sufficient cause of firing the said plaintiff who was a switchman and the said plaintiff does hereby allege and aver that the only reason that he was fired was because that he had filed this lawsuit seeking a redress of his wrongs in the defendants, and plaintiff avers that the filing of a lawsuit to compel the courts to perform their contracts is not sufficient cause within the meaning of said contract of employment. All of which the defendant is ready to verify." Issue on this replication was joined by consent, and the cause proceeded to trial resulting in a verdict for the defendant, and a judgment that the plaintiff recover nothing.
The replication of the plaintiff to this plea of res judicata sets forth; among other things, that: "It was alleged in said declaration, in suit No. 8232, and the following allegation constituted the gist of plaintiff's action herein, that the said defendants therein had breached a contract between the Switchman's Union of North America, of which plaintiff was, at the time he went to work for the Alabama Vicksburg Railway Company, a member, in that he had been given a lower place on the seniority roster of both defendants in their Jackson yards than the place to which he was entitled under the contract, yet plaintiff avers that the basis of his cause of action in said cause, to-wit, No. 8232, was breach of the contract originally entered into between the said Alabama Vicksburg Railway Company and the Switchman's Union of North America, for a failure of this defendant and the Yazoo and Mississippi Valley Railroad Company to give him the place upon the seniority roster to which he was entitled, the contract between the Switchman's Union of North America, and the Alabama Vicksburg Railway Company having been expressly assumed as alleged in the pleadings in said cause by the defendants therein, and all other matters alleged, either in the declaration or in any subsequent pleadings filed by either party thereto, did not form the basis of plaintiff's cause of action therein, but merely to show and explain the extent of damages suffered by said plaintiff, or any attempt by the defendants to limit said damages. That the cause of action between the Illinois Central Railroad Company and this plaintiff in said cause No. 8232, is in no way identical with the cause of action here sued on, because the cause of action here sued on is based not upon the Switchman's Union contract, but a contract between this defendant and the Brotherhood of Railroad Trainmen. The basis of this suit is not a failure to give plaintiff a place upon the seniority roster to which he conceived he was entitled, but is a suit for his wrongful discharge under a contract of hire. Plaintiff further alleges that said plea constitutes no defense because cause No. 8232 was decided by this court and affirmed by the Supreme Court [Moore v. Yazoo M.V.R. Co., 176 Miss. 65, 166 So. 395] upon the grounds that the contract therein sued on provided that within thirty days after the promulgation of the seniority list, the seniority list therein sued on having been promulgated in November, 1928, that any person not being satisfied with the number given him thereon should, within thirty days after the promulgation of said list, file a written protest; that this the plaintiff in cause No. 8232 failed to do personally within the time required by the contract between the Switchman's Union of North America and the Alabama Vicksburg Railway Company, and for that reason a directed verdict was rendered against said plaintiff, which was affirmed by the Supreme Court of the State of Mississippi, a copy of the opinion of the Circuit Court and the opinion of the Supreme Court both being attached hereto marked Exhibits `B' and `C' respectively, and prayed to be considered a part hereof as fully and completely as if copied herein, and the issue herein involved has never been decided upon its merits either by this court or any other court. All of which the plaintiff is ready to verify." The declaration in the former suit, filed as an exhibit to this replication, is in accord therewith.
It appears from the appellee's fifth plea that this discharge of the appellant was pleaded by it in the former suit, not in bar of the action, but only in bar of the right of the appellant "to recover pay for any time after the 15th day of February, 1933," the date of his discharge.
The appellee says that the wrongfulness, vel non, of the appellant's discharge by it on February 15, 1933, was one of the questions presented and litigated in the former suit, and was decided by the verdict and judgment there rendered.
The appellant admits that this question was presented in the former suit by the appellee's plea, but says that it did not and could not have entered into the verdict and judgment rendered; and, further, that the evidence necessary to support his there cause of action differed, in material aspects, from that necessary to support his cause of action here sued on.
It appears from the replication to this plea of res judicata, and from the opinions of the trial and the Supreme Court, to which both the appellant and the appellee, in their pleadings, refer, that the trial court directed the jury to return a verdict for the defendant, but, in so doing, did not and could not have considered and determined the wrongfulness, vel non, of the appellant's discharge by the appellee on February 15, 1933; and, further, that the trial court directed the jury's verdict only on the ground that the appellant had no cause of action because of his having been given the wrong number on the appellee's roster of workmen, and therefore could recover nothing. Had a recovery been allowed for the time intervening between the publication of the appellee's roster and the appellant's discharge on February 15, 1933, a different question would be here presented. The judgment in the former suit is not res judicata here.
We have left out of view the fact that the appellant here sues on a contract made with the appellee by the Brotherhood of Railroad Trainmen, and in the former suit on a contract made with appellee by the Switchman's Union of North America, the provisions of which are similar.
The appellant's demurrers to the first four pleas should have been sustained, and the appellee's demurrer to the appellant's replication to the fifth plea should have been overruled.
The appellee's sixth plea is to the effect that the appellant's cause of action is barred by section 2299, Code of 1930, the 3-year statute of limitations, for the reason that "the contract of employment between the plaintiff and this defendant was verbal, and the alleged breach of the contract occurred on February 15th, 1933, more than three years before the appellant's suit was begun."
The appellant's suit is not on a verbal contract between him and the appellee, but on a written contract made with the appellee, for appellant's benefit, by the Brotherhood of Railroad Trainmen; consequently, section 2299, Code of 1930, has no application, and the time within which the appellant could sue is six years under section 2292, Code of 1930. The demurrer to this plea, therefore, was properly sustained. This question was presented by a cross-appeal by the appellee.
Reversed and remanded.