Opinion
No. 35658.
September 25, 1944.
1. PLEADING.
On demurrer, doubtful allegations in declaration will be construed against the pleader.
2. MASTER AND SERVANT.
Provisions of agreement between Brotherhood of Railroad Trainmen and railroad restricting railroad's right to discharge trainmen, but stating that porters were not to have any trainmen's rights, were inapplicable to discharge negro porter who was not a member of brotherhood, and porter could not rely thereon in suit against railroad for wrongful discharge, in which he did not claim status of a trainman, but alleged that he had performed duties of a trainman.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
Jackson, Young Phillips, of Jackson, for appellant.
The amended declaration did not state a new cause of action and was therefore not barred by the statute of limitations.
Miller v. Phipps, 161 Miss. 564, 137 So. 479; Yazoo M.V.R. Co. v. Rivers, 93 Miss. 557, 46 So. 705; Broom v. Southern Railway in Mississippi, 115 Miss. 493, 76 So. 525; Cooper v. Allen, 57 Miss. 694; Easter v. Riley, 79 Miss. 625, 31 So. 210; Cox v. McLaughlin, 76 Calif. 60, 18 P. 100; Kuhn v. Brownfield, 34 W. Va. 252, 12 S.E. 519; Clinchfield Railroad Co. v. Dunn et al., 40 F.2d 586; Harris v. Singh (N.M.), 28 P.2d 1; Fonyo v. Chicago Title Trust Co., 296 Ill. App. 227, 16 N.E.2d 192; Mitchell v. Vulture Mining Milling Co. (Ariz.), 55 P.2d 636; Hanson v. Springfield Traction Co. (Mo.) 226 S.W. 1, 3; Daniel v. City of Tuscon (Ariz.), 70 P.2d 516; Abbott v. Chambers, Circuit Judge, 55 Mich. 410, 21 N.W. 911; Richardson v. Investment Co., 124 Or. 569, 264 P. 458; McEachin et al. v. Kinkaid, 99 Okla. 123, 225 P. 951; Frost v. Witter, 132 Cal. 421, 64 P. 705; Ball v. Lowe, 1 Cal.App. 228, 81 P. 1113; Mackroth v. Sladky, 27 Cal.App. 112, 148 P. 978; Hemmeon v. Amalgamated Copper Mines Co., 95 Cal.App. 400, 273 P. 74; Gallagher v. California Pacific Title Trust Co. (Cal.), 57 P.2d 195; Jones v. Wilton (Cal.), 65 P. 1357; Bolsinger v. Halliday, 4 Ohio App. 311; Holman Bros. v. Cusenary (Tex.), 268 S.W. 1064; Flaton, Riley Co. v. Roy Campbell Co. (Tex.), 270 S.W. 883; Wood v. Ingram (Tex.), 275 S.W. 397; W.T. Rawleigh Co. v. Lemon et al. (Tex.), 276 S.W. 1115; Reclamation Co. v. Sinnions et al. (Tex.), 293 S.W. 194; Houston Finance Corporation v. Steward (Tex.), 7 S.W.2d 644; Campbell v. City of Hackensack (N.J.), 179 A. 687; Seely v. Manhattan Life Ins. Co., 72 N.H. 49, 55 A. 425; Bickle v. Quinn (R.I.), 7 A.2d 890; First Bank Trust Co. v. Ramirez et al. (Tex.), 126 S.W.2d 16; Texas Pacific Coal Oil Co. v. Smith (Tex.), 130 S.W.2d 425; Martindale Mortgage Co. v. Crow (Tex.), 161 S.W.2d 866; MacBeth v. Reuninghoff (Ind.), 31 N.E.2d 665; Wilson v. Gregory, 189 S.C. 62, 200 S.E. 358; Ralph B. Slippy Eng. Corp. v. City of Grinnell (Iowa), 276 N.W. 58; Verdery v. Barrett, 89 Ga. 349, 15 S.E. 476.
The reason for a limitation on actions is in order that a defendant may have notice of the claim to which it applies within a certain specified time, and where a defendant has had full notice from an original pleading and process in a suit that a plaintiff claims certain specific legal rights and certain specific relief on account of the violation thereof by particular specified conduct on the part of the defendant, the reason for a limitation on the action does not exist, and, therefore, an amended pleading under such circumstances is not barred where the original pleading giving the notice and on which process was issued and served on the defendant were all filed and had prior to the date the bar of the particular limitation would have been complete.
Jennings v. Lowery Berry, 147 Miss. 673, 112 So. 692; Broom v. Southern Railroad Co., supra; New York Central, etc., Railroad Co. v. Kinney, 360 U.S. 340, 67 L.Ed. 294, 296; Wabash Railroad Co. v. Bridal, 94 F.2d 117; St. Louis, Santa Fe and Texas Railroad Co. v. Smith, 243 U.S. 630, 37 S.Ct. 477, 61 L.Ed. 938; Gainesville, Midland Railroad Co. v. Vandiver, 141 Ga. 350, 80 S.E. 997; Lanie v. Illinois Central Railroad Co., 140 La. 1, 72 So. 788.
Where a defendant pleads the exact subject matter of an amendment to the declaration in avoidance of the original declaration filed against it, and thereby admits the subject matter of such amendment, an amendment to the declaration setting up the very exact subject matter thus pleaded by the defendant in avoidance of the original pleading relates back to the filing of the original pleading so as to avoid the bar of the statute of limitations and defendant will not be heard to aver that the amended pleading is barred.
Caledonian Fire Ins. Co. v. Shepherd, 111 Miss. 175, 71 So. 314; Matthew F. Johnson, Executor, v. Stephenson Waters, Administrator, 111 U.S. 640, 4 S.Ct. 619, 28 L.Ed. 547; Union Pacific Railway Co. v. Wyler, 15 S.Ct. 877, 158 U.S. 285, 39 L.Ed. 983.
Since this is a suit in tort for damages for breach of the aforesaid obligation of the defendant not to discharge plaintiff without just cause, and in view of the fact that the exact language of this obligation of defendant is set out pro haec verba in both the original and amended declarations, and defendant's obligation is in the same language in both schedules, the exhibiting of the total schedules including all of the rules and regulations in the trade union contract, whether relevant or irrelevant, material or immaterial, was surplusage, and any amendment relating to such surplusage cannot affect the substantive rights of either party. There could be no new cause of action arising from such exhibits and therefore the bar of a limitation on the action would not apply.
Eastman Gardiner Hardwood Co. v. Hall, 137 Miss. 354, 102 So. 270; Myers Construction Co. v. Batson, 156 Miss. 689, 126 So. 822; Refuge Cotton Oil Co. v. Twin City Fire Ins. Co., 152 Miss. 522, 120 So. 214; Moore v. Illinois Cent. R. Co., 180 Miss. 276, 176 So. 593.
Under the authorities in this state both declarations state a cause of action, and the same cause of action against the appellee, this cause being the wrongful discharge of appellant by appellee on or about October 10, 1933.
Yazoo M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669.
May Byrd, of Jackson, Vernon W. Foster and Chas. A. Helsell, both of Chicago, Ill., for appellee.
The amended declaration in this cause did undertake to state a new cause of action. The first declaration alleged the making of a contract effective May 1, 1923, and alleged a breach of said contract occurring on October 10, 1933, and the declaration declares upon the terms and provisions of said contract effective May 1, 1923, and relies for recovery on the alleged breach of a provision of the contract, quoted in the declaration. In addition thereto there is exhibited with the declaration the said contract effective May 1, 1923. We say, therefore, that there can be no question but that the plaintiff in filing his original declaration based his case upon the contract effective May 1, 1923, and his right to recover under that declaration, if any right he had, depended upon the contract effective May 1, 1923, sued on and made exhibit to the declaration. If said contract, upon which he sued in his original declaration, was not in effect on the date of the alleged breach thereof, then he had no cause of action. By his amended declaration the plaintiff based his suit upon a written contract or agreement effective October 6, 1925, an entirely different contract, bearing a different date and materially different in several of the important particulars thereof. He bases his right to recover on his amended declaration upon the alleged breach of a contract effective October 6, 1925, and not upon any other contract. We say, therefore, that there are two separate and distinct contracts and two separate and distinct statements of fact which are not related and have no connection one with the other.
Cox v. American Freehold Land Mortgage Co. of London, 88 Miss. 88, 40 So. 739; Cooper v. Allen, 57 Miss. 694; Dinkins v. Bowers, 49 Miss. 219; Travellers' Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Illinois Cent. R. Co. v. Wales, 177 Miss. 875, 171 So. 536; Clark v. Gulf, Mobile Northern R. Co., 132 Miss. 627, 97 So. 185; Miller v. Phipps, 161 Miss. 564, 137 So. 479; Yazoo M.V.R. Co. v. Rivers, 93 Miss. 557, 46 So. 705; Broom v. Southern Ry. in Mississippi, 115 Miss. 493, 76 So. 525; Jennings v. Lowery Berry, 147 Miss. 673, 112 So. 692; Caledonian Fire Ins. Co. v. Shepherd, 111 Miss. 175, 71 So. 314; Eastman Gardiner Hardwood Co. v. Hall, 137 Miss. 354, 102 So. 270; Myers Construction Co. v. Batson, 156 Miss. 689, 126 So. 822; Refuge Cotton Oil Co. v. Twin City Fire Ins. Co., 152 Miss. 522, 120 So. 214; Moore v. Illinois Central Railroad Co., 180 Miss. 276, 176 So. 593; Union Pacific Railway Co. v. Wyler, 158 U.S. 285; Nelson v. First National Bank of Montgomery (Ala.), 36 So. 707.
We respectfully submit that the action of the court in sustaining the demurrer and dismissing the cause of action was correct for another reason, and that is that the contracts sued on and exhibited with the declarations, both original and amended, show that the plaintiff had and has no cause of action against the defendant by reason of the matters and things set out in the declaration. We have here a porter suing because he alleges he was discharged in contravention of the provisions of a contract between the labor union and the railroad company, yet the contract shows on its face that he was not to have any of the rights of a trainman. One of the rights of a trainman was that he should not be discharged without just cause. Since he is to have no rights of a trainman, then appellant, a porter, cannot invoke the contract which applies to the trainmen and which by its terms excludes porters. Not only was the plaintiff, Otis, not included in the contract, either by name or as one of a class, but his class of employees, to-wit: porters, were expressly excluded from receiving the benefits or rights of the contract conferred upon trainmen.
Yazoo M.V.R. Co. v. Sideboard, 161 Miss. 4, 133 So. 669.
If he had no cause of action, and this fact appears from the declaration, then the demurrer was properly sustained upon the familiar rule that a demurrer searches the record, applying to the first defective pleading. A demurrer opens all errors in the pleadings, and judgment thereon goes against the first bad pleader.
Miles v. Myers, Walk. (1 Miss.) 379; Haynes v. Covington et al., 9 Smedes M. (17 Miss.), 470; Tucker v. Hart, 23 Miss. 548; State, to Use of Clark, v. Bowen, 45 Miss. 347; Mississippi Centennial Exposition Co. v. Luderbach et al., 123 Miss. 828, 86 So. 517.
The question we decide in this case is whether appellant, Otis, plaintiff below, by the allegations of his declaration, brought himself within the provisions of an agreement between the Brotherhood of Railroad Trainmen, a labor organization of white men, and the appellee railroad, effective October 6, 1925. The question arose under demurrer and the trial judge decided it adversely to appellant. Both parties have also asked that we pass upon it on this appeal.
The basis of Otis' claim was his discharge as an employee of appellee railroad on October 10, 1933, which discharge, he says, was without just cause and in violation of the above agreement. His declaration contains this averment: "That on October 10th, 1933, and for a long time prior thereto, plaintiff was and had been employed by said railroad corporation in the capacity of a train porter, but during said period of employment the plaintiff had been required to perform and did perform in addition to his duties as train porter, the duties required of and commonly designated as a trainman."
He alleges that the foregoing agreement was in effect during the period of his employment, making it an exhibit to the declaration.
He then says:
"That although the plaintiff was not a member of said labor organization during his employment by the defendant, he performed the duties of a trainman, and, accordingly, became entitled to rely upon said contract and to the benefits thereof."
"That notwithstand the provision of said contract that the plaintiff, who by virtue of his employment was entitled to receive the benefits, should not be discharged without just cause, the defendant did on or about the 10th day of October, 1933, without just cause, arbitrarily discharge the plaintiff from its employment, and has since said date refused to retain or employ the plaintiff in its service, and although said plaintiff has diligently sought employment since said time, he has been unable to obtain any regular employment."
Having thus attempted to bring himself within the provisions of said union contract, he invokes especially the benefits of the following clause thereof: "(a) Trainmen or yardmen will not be demerited, suspended or discharged without just cause. When demerited, suspended or discharged they will be notified in writing the cause of such action and will be given a hearing within ten (10) days, provided written request is made on proper officer for such investigation, and will be notified result of investigation within ten (10) days thereafter. Ten days after notification of result of investigation will be allowed for the filing of an appeal to higher officials. If charges are not sustained the accused will be returned to the service and paid full time for all time lost. At investigations above described the accused will be privileged to call upon a fellow trainman of his own choosing to represent and speak for him."
The declaration also contains this statement: "That at the time of his wrongful discharge, as above set forth, and for a long time prior thereto, plaintiff was receiving from the defendant by virtue of his employment the sum of $90.00 per month. That a period of approximately six years has elapsed since the date of plaintiff's wrongful discharge by the defendant, and although plaintiff has diligently sought employment. . . ." The total amount for which suit was brought is $16,500, of which $6,500 is for lost wages and $10,000 is for "said wrongful discharge and breach of contract by the defendant."
The said labor agreement defines its members in these words: "The word `trainmen' referred to in these rules applies to Brakemen, Baggagemen and Flagmen; `yardmen' applies to Foremen and Helpers."
It sets out the monthly wages of those in the several classes, the lowest wage being more than $90 per month.
It contains many provisions controlling the hours of work, regular and overtime pay, size of crews, seniority and transportation rights, the order of promotion, grievances and complaints, — in fact, detailed and comprehensive rules and schedules regulating the services, duties and rights of its members both between themselves and between them and the railroad.
It is then stipulated in Article 38 (k) that: "White men are not to be used as porters nor porters to have any trainmen's rights."
Appellant is a negro man. Does the declaration bring him within the provisions of the foregoing union contract? We think not.
The declaration states expressly that Otis was employed during the entire time as a porter and he sues for a porter's wages. It is not stated how long he worked as a trainman, nor whether as a brakeman, baggageman, flagman, yard foreman and helper. What he did is not set out. The declaration is vague and indefinite as to what he did as a trainman. Doubtful and uncertain allegations therein will be construed against the pleader. It is a fair conclusion from its averments that whatever acts were performed by Otis other than as porter were incidental. The labor agreement states concisely and positively that porters are not to have any trainmen's rights.
Appellant relies mainly upon the case of Yazoo M.V.R. Company v. Sideboard, 161 Miss. 4, 133 So. 669, 670. That case is distinguishable from the case at bar in many vital respects. Sideboard worked as a brakeman from 1910 to 1914, and from 1914 to 1928 he performed the duties of porter and brakeman on a passenger train. He "was regularly required to perform, and did perform, the essential duties of a brakeman . . . and was at all times designated as a brakeman, and was paid brakeman's wages . . ." to February 27, 1925, when the railroad notified him he would thereafter be paid not the wages of a brakeman but the lesser wages of a porter. The court held that he was entitled to the wages of a brakeman. The holding was grounded upon these rights:
From June 1, 1918, to March 1, 1920, the railroads were being operated by the Federal Government under rules and regulations promulgated by the Government. One section of such rules provided that where colored brakemen were employed, both for passenger and freight service, the wages should be the same as those of white brakemen.
After the termination of Federal control on March 1, 1920, the Brotherhood of Railroad Trainmen executed a new agreement with the railroad, which contained as a part thereof the foregoing provision of the Federal rules, and on April 28, 1924, the union and the railroad entered into a new contract, which contained the above provision and which also provided: "Rights contained in this agreement shall be understood to apply for both white and colored employees alike . . . Road trainmen performing more than one class of road service in a day or trip will be paid for the entire service at the highest rate applicable to any class of service performed."
It will thus be seen that in that case Sideboard was recognized and treated as a trainman, and he sued for his wages as a trainman, which might be grounded, in the absence of a contract, upon a quantum meruit basis, and the union contract expressly provided that the rights thereunder applied both to white and colored employees alike; whereas, in the case at bar, Otis does not sue for wages as a trainman; it is not asserted that he had the status of a trainman, but the declaration states that at all times he was employed as a porter, and the very contract he invokes expressly denies to him the right he tries to assert. He does not state that he had a contract for a definite period and was wrongfully discharged before its expiration. His right rests solely and alone upon the union contract, and it expressly denies him any rights thereunder. Incidentally, though no point is made upon it, Otis does not claim that he made any request for a hearing under the clause of the union contract which he invokes. The lower court was correct in holding that the declaration states no cause of action. The plaintiff declined to further plead. The case is therefore affirmed.
Affirmed.