*1 of and G. Trustees L. Baron v. J. M. Kurn and John Lonsdale, F. Railway Company, a Corporation, for St. Louis-San Francisco 310. (2d)W. Appellants. 164 Two, July 28, Division 1942. September 8, Denied,
Rehearing appellants. E. Nahler and Ward <& G. Beeves
1203' *2 Stone, P. Jr., A. for respondent. Brown, curiae. amici Cole,
Thomas W. and Jacob J. W. Graves *3 BOHLING, presented for main contested issues C. The under facts and circumstances review, determination on this action is involved, (1st) plaintiff’s whether cause of stated are be by five-year Limitation; (2nd) whether barred our of and Statute action sued ex- cause of on ever accrued under provisions pleaded. pressed contract Other issues embrace 30, 1940, giving refusing April and of certain instructions. On F. Lonsdale, Baron M. as bank- L. sued J. Kurn and John G. trustees Railway ruptcy Company, corpo- St. Louis-San Francisco $4,860.54 (hereinafter designated Railway), damages, ration allegedly accruing May 1, April 1939, charg- 1935, 15, and ing Railway wrongfully failed return to work in rights Railway’s yards accord with Springfield his Schedule,” under contract known effective as the “Yardmen’s as of 1, 1919, 1, April 1924, November as of between said revised Railway Railway the Brotherhood of Trainmen. Plaintiff re- judgment $2,595. certification, upon covered The case reaches us following Judges Springfield the dissent one of the Court
1205 affirming judgment. Baron said majority opinion to the Appeals [See (Mo. App.), 153 W. Kurn S. 405.] ' right yard question of individual does Schedule,, provisions of the Yardsmen’s generally men to enforce the theory do not embrace discussion of theories and the issues right. underlying of this and other states have ad Courts reasoning employee may among others, that the vanced, enforce McCoy .was made. party a third for whose benefit it contract 514, Ry. Co., App. 506, (2d) 175, 229 77 S. W. Joseph Belt Mo. v. St. Ry. Co., App. 431, 435, ; F. Hall v. St. Louis-S. [2, 3] Annotations, (2d) 687, 689 Consult A. L. R. 28 W. [3]. 1302; Contracts, p. 1099, 41; R. Williston on 81 A. L. language (Div. If 379A. found in Burnetta v. Marceline Coal Co. 1904), 241, 250, to be construed that II, may rights union employee acquire labor contract contráct employer independent employ of his individual his ment, authority think it with the modern we out of trend of line longer respect. should not in that followed rights upon dependent are two contracts. He em- Plaintiff’s by ployed yardman, being December as a “helper.” contract, fixing classified as a This as an status em- ployee, by so far pleasure as shown the record terminable at the party. contract, Schedule, either other said Yardmen’s con- provisions relating wages, tains service, seniority to the conditions rights, suspension, discharge, et cetera of
employ. It was plaintiff, offered in evidence who relies its recovery, particularly for a Articles and 17. We quote: “(a)” Article 10: “. . “(b)” . are deemed im- [Sections
material are omitted.] *4 “(c) yard Reduction in force. When reduced, forces are men. involved will be in displaced the order seniority. of their vacancy When a occurs or new runs created, are the senior men will vacancy. have choice of run or “ (d) Yardmen laid off account reduction in force will be returned when to service forces are increased in order their seniority, pro- they vided return thirty (30) days actual service within from date their required, services are management good unless the has and sufficient cause for returning them to service in line with their seniority, in which event the committee will be informed reasons there-
for. This apply any Yardman laid off in force reduction sub- sequent to October 192.0.” understand the revision April [We was (d) addition of Sec. to said Article 10.] “ Article 17: (a) objections When charges against any or are made yardman, they shall be put writing convey and should a full statement of objections charges. or “ discharged, given'demerit or suspended be (b1) will not Yardmen inflicting punish- Before just cause. and sufficient
marks without assessing marks, dismissal, or demerit suspension ment in form of may They present investigation. be at hold will proper official employe of their a disinterested together with investigation days within five after investi- rendered will be All decisions choice. marks, or dismissal, suspension demerit In case of gation held. right have unjust, he within shall any thinks' sentence yardmen if by Superintendent. to his days written statement refer case ten his notice, the case have a- days receipt of shall this Within ten Company, at by proper which investigation officer of thorough desires, repre- he and also be may present if so he be investigation of his choice. case he is dis- any employe by 'disinterested sented right investigation, ap- shall have the he result of satisfied in the form punishment, In case of dismissal officers. general peal subsequently unjust, found to be inflicted suspension is or ’’ all regular at time lost. paid rates reinstated shall be throwing more of said Yardmen’s Schedule or Other testimony bearing on the issues are set out light the oral less margin.* * yardmen “(a) entering be Men the service as shall extra Article 15: created, vacancy permanent or new runs when oldest occurs until regular. . will made . . or men be extra man Seniority yardmen “(c) rights will date from the time enter yard terminal, given provided, extra men are their or turn actual service off of not, seniority board, if will local committee establish extra men. . . . for such yardmen employed “(g) will more be than can earn a No extra reason- in, compensation. Extra men will work first first out. . . able . compensation yardmen “(h) of the for extra will The reasonableness be proper of the B. of T. and local committee R. officer determined Company.” of the “(b) posted 22: Bulletins will be on bulletin or Article board bulletin book, kept yard office, assigned board will be at and bulletin each registered. extra men shall be . . . crews and “(d) service, permanent out Yardmen on leave absence or while created, permitted runs have occur new been will be vacancies to exercise seniority their on return to service.” granted will not Article 26: “Yardmen be leave of more absence for than days permission Manager of General 90 such leave of absence must be without and General Chairman and writing.” proper Company 27: “The of the will furnish officers Chairmen grievance committee B. of the local of all of R. T. correct list of names every ninety age days, of service list will posted on board or bulletin book.” be bulletin “Any yardman leaving Company will, Article 34: the service of the n given bearing stamp request, Company, his a letter the official Stating service, capacity employed term of in which his and whether he has discharged dismissed, or left the If been letter service of own accord. state therefor.” shall reasons n “Proper Company Article 35: officers will hear reasonable *5 complaints yardmen made individual or authorized committee the same, representing provided given B. of Company T.R. due notice shall be the subject writing complaint, special appointment and place made and of time same will be considered.” On account slack and inability business the yardmen of all the a living, to earn Railway'-was laying yardmen off in 1931. This known was as “reduction in force.” Plaintiff was on the extra board and was let out of July service on yardmen, 1931. Other having some superior having and some inferior rights to plaintiff, were also let out of service. Plaintiff thereafter was re-employed never or returned to the service of although other having seniority rights less were returned to service. He was never accorded investigation rights or other mentioned in of the Yardmen’s Schedule. they Plaintiff testified kept that a bulletin board at the office yards on they put men’s names were when were called for work; yard engine that a board with this was the time the would begin quit work regular and the names of the crew cards; on little many engines that regular as worked would have these men placed starting quitting captions time, those “and they then to list, off side of the board would have extra designate men extra had a different colored card also that were men. top The men were taken off of of this extra extra ” placed engine off; list and over men regular on laid that as these when July, 1931, he was laid off in force, on account of reduction in steady employment; he “on and did not have was the extra board” yards, kept track of the kept that thereafter he in touch boy call where get back and notified see when wduld board he placed back name had never been might reached; that his he May, 1933, plaintiff off in after it the board was taken seniority rights he. He testified yardmen working than noticed less Railway’s Master, and Yard Gustin, he saw General then Mr. him, told work; Mr. Gustin him that informed he available why witness he, Gustin, know inquiries, that did not in answer to Yardmen’s Schedule been called back work had not Coppage, Superin- suggested Mr. force; that he see Gustin still him Coppage told terminal; Springfield tendent Gustin; that he went and for him handled such to see Gustin matters why him did not know Gustin, again informed he back who he, Gustin, would see back to work and plaintiff had not been called Division, Sisson, and for Superintendent the Eastern Mr. afternoon; to locate Gustin back in that he unable come morning the next and Gustin told
that afternoon saw him but Sisson; the next time opportunity not had an see he had would; not seen but said he plaintiff went back Gustin had Sisson period years, that, times after over that he Gustin at various saw why he had not been returned and Gustin never did tell him discharged or that matter, or that had been what was time he was ease had been closed. Plaintiff also testified that dues since laid off he was behind his Brotherhood
1208 he did never and that union member then had not been Bailway Trainmen the Brotherhood representative talk to about the matter.. Bailway, of the testimony, on behalf Mr. and Gustin’s Coppage’s Mr. 1932, 7, March by.letter on notified plaintiff was that was to effect personally plaintiff when days thereafter or weeks and, a few within discharged from orally had been that he reinstatement, sought also unsatisfactory re-employed on account of and would be service and, as receiving the letter Plaintiff, however, denied ever work. discharged. orally he had been he notified supra, denied was stated merits, might on the fact bear issues far controverted so as these tes- plaintiff’s favor. Gustin jury determined stand seniority according their always had a men list tified that he 22, (b) and Sec. with Article him. was in accordance This before 27 of Yardmen’s Schedule. laid off plaintiff time was B. Eckles testified that Walter force, of the he was local Chairman on account of a reduction Terminal; Springfield T. at the B. of B. Committee Grievance laid men were he close track of whether the kept a union that as officer seniority according rights to their into off and called back service say that Schedule”; that had a in the number he the “Yardmen’s laid was reduced; plaintiff that after off he board was should be plaintiff that never would not plaintiff advised that re-employed; matter, not member plaintiff talk to him about and did T. of the B. of B. Bailway’s is that when testified first contention July, 1931, and had been taken off of the board in
that his name board, repeatedly of the and that had ever thereafter remained off May, 1933, Bailway with officers interceded after of the to be success, plaintiff’s returned to without service evidence established relationship action that his accrued and the cause master years prior 30, had been more than April servant severed five 1940, action, date of the and that the de institution five-year recovery by of Limitation fense of the Statute barred a plaintiff. 1014, (the five-year statute); 1939 R. S. Sec. [Consult (the ten-year 1013, statute); Lively v. 1939 Tabor, B. S. 341 352, 111 62, 976; W. A. L. R. Parker-Washington Mo. S. Dennison, 199, 1041; Rhodes, 267 Mo. Co. Herweck v. 29, (2d) 32; Roth, 1, 34 S. W. Lehner v. 211 Mo. 22 App. 833, 232, certification, W. 229 W. S. sustained on 174, S. W. 91.] applicability
Plaintiff not controvert the five-year does limi- subject tation if his cause of action to such defense. contends He that the of Article 17 complied were not and he Bailway discharged; him owed and con- continuous duty tinuing him to return seniority; service the order of his continuous repeated and breaches to do constituted that its failure so separate rise and distinct causes Schedule, giving Yardmen’s from every day failed and refused after each it so of action 1939, when said Yardmen’s Schedule May 1, 1933, April hence, right changed, and, that a existed revised, amended damages suit, to re date of sue April failure return sulting from the May April order *7 Ry. 232 Mo. Joseph Co., App. Belt McGee v. St. on Plaintiff relies Joseph Ry. Co., 235 Mo. 389; McGee v. St. Belt (2d) 110 S. 639, W. Kurn, 235 675; and Bradford v. Mo. 707, (2d) W. 133 S. App. (p. Bradford v. Kurn 1287 of 235 1282, (2d)W. 644. 146 S. App. (2d) ) 146 S. W. follows the McGee p. [2, 646 App., Mo. and 3] naught 707, (2d) 675) W. and there 133 S. adds (235 App. Mo. case instituted, against Joseph Ry. the St. Belt two actions McGee to. designated Railway), Belt for similar somewhat (hereinafter Co. contract between Belt of a similar somewhat breaches the Brotherhood. and 15, action, in 1933, instituted June resulted
McGee’s first against judgment Railway (233 Belt $4,700 a Mo. affirmance of by (2d) 1111). As 111, appeals, 93 W. stated court App. S. by damages Railway, occasioned McGee the Belt action for that agreement with the Brotherhood of which in of its McGee violation changing altering, 10, member, 1930, and on October awas wrongfully placed name was seniority list that McGee’s so down so far opportunity in an to work the order deprived that he was to which charging proper that the maintenance of entitled, said he was every day him work each and entitled subsequent list would have 233 l. 10, App. 113, 1930. Mo. c. 93 W. (2d) October S. to said [See (second case:) 232 1113; App. 641, Mo. 1. 110 and see c. W. l. S. c. l. 390, repeated App. 710, in c. 133 W. (2d) (2d) l. c. S. respect presented being ease no That issue to McGee l. c. 676.] e., discharged. service; Belt i. from the divorced action, July 31, 1936, instituted was on the second McGee’s same accruing damages between theory, 15, but for December 1933, up recovery July 31, 1936. The answer set in the first and action .the performed had bar, alleging that no for defendant 1933. 15, reply to December McGee’s subsequent charged (as does case) the instant that plaintiff’s petition in the contract was a con tinuing one, requiring defendant to call to work each and day employment remained every force; contract that first action covered damages accruing recovered those prior 15, 1933; to December and subsequent and the breach of on in the first action recovered was not contract for a total breach Mo. l. c. App. 651, 110 S. (2d) W. of the contract. l. c. 390; 235 [232 (2d) l. c. 711, 133 S. W. c. Cast App. Mo. l. nisi on defendant’s 676.] 1210 judgment pleadings, appealed.
motion on the McGee The court appeals judgment reversed the (232 remanded the cause Mo. App. 639, (2d) stating 389); question presented S. W. the sole judgment recovery was whether the first action a McGee’s barred (l. in his second action c. 642 respectively). [1, 2], court pleadings charged considered McGee’s contract of em that his ployment force; might was still in breaches the contract there fore continue; recovery and that in the action first occurring 10, 1930, breaches between October and December 15s 1933, action, sought damages and that the second for additional occurring 31, breaches 1933, July December 15, said 1936, (232 App. was not barred action. first Mo. 1. c. (2d) 110 W. App. 1. c. c. [7, see Mo. 1. 9]; (2d) 676.) recognized: 1. c. But the court also “However, there discharging employee is difference between an retaining preventing laboring, his services but him from presented in equiva case. this Where breach of contract is it, lent to termination of it no putting then, end there question goes but that the breach contract and but a entire single damaged.” (232 cause action arises thereon party to the App. 1. c. reasoning 110 S. W. c. [4].) ' opinion concerning said difficulties to be encountered on the measure *8 damages of brought had McGee but one action to recover his entire damages, past prospective. (232 App. 644, Mo. 1. W. c. 110 S. (2d) subject 1. c. 392 yardmen is to the observation that [10]), Railway wrongfully discharged Belt would found have the same respect with damages to the measure inescapable difficulties in the single of action stated in opinion cause said to breach exist of a equivalent contract to a termination of it. On the trial of McGee’s case, second the Belt offered no Among evidence. by testimony facts shown offered on McGee’s behalf evidence 1932, that McGee been seniority 1, had cut off of the list on June work; was not thereafter called for and the Belt contended striking that its McGee’s name from the list and failure years call for work for July more than four prior 31, 1936, effectively relationship terminated the of employer-employee. The opinion appeals court of states: “Plaintiff offered evidence which support allegations tended to pleadings” contained in his (235 App. 710, Mo. 1. (2d) c. 676); and, S. W. 1. c. “con sidering peculiar nature of the contract and of relationship existing between defendant and employees,” its that the record was left in a say, such the court state could not law, “as matter of that an employee was not during of defendant term for which damages (1. were allowed in this case” c. 713 respectively). arguendo The court mentioned that the Belt Railway could have employment ended under McGee’s “the unilateral contract and in- employment will;” definite term of ... at its it could by simply writing him employment terminated have McGee’s letter effect; discharged could without that it havé McGee reference agreement giving terms of with the Brotherhood and without to the its liability letter, subject, course, any wrongful him a respects; action in “we hold that if is such and also also not, fact, damages employee of defendant he cannot recover an holding failure to call him to work.” for defendant’s The rulings.
brought alleged here certiorari for conflict We con on Bailway by the Belt were not in fac sidered the cases cited similar say background; tual and stated: “We are not called wrong holding right or respondents whether were all these facts jury. a case for But we do rule the conclusion reached is made knowledge as to call for our not so variance facts universal City Shain, R. intervention under ex rel. Kansas So. Co. v. State (2d) loc. 919. supra, cit. S. W. cit. We find loc. decisions, conflict with our from which it follows that our writ of no hereby quashed.” be, ordered, certiorari ex rel. should [State Ry. (Banc), 1098, 1102, Joseph St. Belt Co. v. Shain (2d) 131, 133.] damages accruing stated the McGee cases involved As 15, 1933, and December and between December October July 31, 1936, respectively. Statute Limitation was opinion, not discussed and are of view the fact McGee offered we allegations tending support pleadings, of his evidence charge employment included contract of remained that his similarity necessarily effect, that of issues does not exist as to overruling require of McGee case as to result should we reach precise issue of the instant different result case applies Sparks Thompson discussion. This observation also (Mo. App.), 161 W. Bailway’s plaintiff, instant ease the evidence did not aid- only
who witness. Bailway agreed (d) under Sec. of Article to return a reduction in “in seniority” laid off on account of force order of their *9 management increased, good the has when the force “unless returning cause for not them in sufficient seniority, to service line with their in which event the committee will informed be reasons provisions (d) imposed therefor.” The unilateral of said See. no obligation plaintiff work; required contractual return to but to by alleged performance repudiator, e., Bailway’s the i. the in the plaintiff seniority, return of to service order of his before upon performance part. Bailway enter on his plaintiff could The he discharged; did not inform had been officials neither did discharged. sought him had not been Plaintiff inform he return May, 1933, reinstatement. he knew to service and not 1212
being seniority. order knew Ms returned to service in tbe of bis He seniority list, board. establish name was not on the did not He. Railway had informed local committee of reasons that the returning seniority, to in whether for not him the order of his good or not for and suffi- its failure return him to-service was was by supplied was not plaintiff’s cient void in evidence cause. This testimony on factual issue evidence. All the direct defendant’s Railway’s compliance (d). established the with said refraining ruling, provisions Assuming, expressly but from so notwithstanding provisions of Article applicable, 17 Article are force, relating yardmen off on account of reduction laid plaintiff, of and without notice to the-Railway, approval without .the readily Article 17 terminate provisions could as breach the of said employment provi- and indefinite term of as the plaintiff’s unilateral by 10, charged breached; Article to have been of said sions course, any plaintiff might (cid:127)subject, proper action institute wrongful by Railway. Lyons arising respect from act this Ry. Co., App. Belt Joseph v. St. [7], Railway Joseph Co., App. Belt 933, 942 McGee v. St. [7]; among (2d)W. other authorities. [1, 133 S. 3], required charges against yardmen provisions said Article inflicting etc., pun- writing, required investigation, an to be before dismissal, assessing or suspension demerit in the form ishment days after of a within marks, rendition decision five required the present, appeal, be privilege investigation, with provisions of the provisions (as well as certain etc. These contemplate margin) elimination set out in the Schedule Yardmen’s delays its in transactions of unreasonable yardmen. any, comply provisions with the failure, if of the slight breach Yardmen’s Article 17 was not 10 or inconsequential having pecuniary not an no It was trifle
Schedule. very It heart of his contract importance. reached to employ-, right deprived It him Yardmen’s Schedule. of his ment wages livelihood, payment and to work, for his demand earn to. employment and the contract of Yardmen’s Sched- under his therefor wrongdoer breached, per- either When a contract desires ule. injured may to continue. The party continue formance to always repudiator if the performance continue consents. Plaintiff 1931 on of a let of service in account reduction force. out impermanent employment contract of If his indeterminate by continuing virtue of thereafter considered Schedule, Railway effectively pre- Yardmen’s Article 17 of the performance plaintiff from further thereunder not re- vented turning indisputable there arose an breach of to service-and employment and the Schedule. Yardmen’s Ultimate contract of *10 performance Railway’s obligation charged of the to have breached been was due when plaintiff entitled to return to service said (d) May, 1933, breach, any, and the if occurred when it then perform. failed Ordinarily plaintiff’s to a cause action accrues thing defendant’s a failure to do the time and contracted, manner and a begins Statute of Limitation run to when may a logical suit be maintained therefor. It for to call is one something the breach of a contract say other than a breach or performance continued wrongdoer contract when the pre vented him performing. from further Generally, wrongdoer when a performance contract, injured breaches of a party required cognizance change in thereby take relation- created. This especially applicable should be preventing where the breach results further performance by injured party here; as and if Article 17 operated upon situation, the instant it should not extend the time taking cognizance beyond for period. reasonable Otherwise an employee duty would of that places upon be relieved law diligence to exercise reasonable injury (sometimes to avoid needless involving stated in duty contracts to be mitigate cases damages), would performing be considered as contract-breached such an preclude any extent as to such actual performance, and would be authorized to twenty institute action fifteen or years after breach employment of a readily contract as years agreement seven thereafter. The same that was involved in the eases, supra, McGee McCoy before the court Joseph St. Belt Ry. Co., 229 App. 506, 519, (2d) 175, 77 S. W. [10], was similar to the McGee the instant A judgment actions. for McCoy was set aside because clearly the evidence did not establish McCoy when would been have entitled to return service order seniority, of his observing: the court also “Nor is if definite specific long as to when or how reasonably he could hoped have to be rightfully recalled to work and therefore hold himself in readi work; only ness to this extent could he damages recover wages.” We, loss of therefore, are opinion fair minded man, knowledge with admittedly facts possessed by plaintiff, would long prior have concluded to, say April 30, 1935, approxi mately years two here involved had breached- the applicable, of Article if and in the it is circumstances duty court to so declare as a matter of law. See also Farm (Mo. Bisesi v. & Home S. & L. App.), Assn. may Plaintiff thereafter had an have action based on [8-11]. comply with failure if applicable, for cause,” discharging “just him without and sufficient Furthermore, with knowing he being was re turned to or reemployed, dealings the Railway were length. at arm’s The circumstances were such' put as to man
ordinary prudence inquiry required the exercise reasonable of diligence. Plaintiff never exhausted his available sources of -informa- (d), required inform the tion. Under Sec. the for not re- Grievance Committee the Brotherhood its reasons turning seniority. service in order of Plaintiff his inquiry made pointed never of the Brotherhood. It been often has upon out that public Statutes of Limitation rest reasons of sound policy promote society, in'that peace tend and welfare of safeguard against fraud and oppression compel settlement period origin within a after claims reasonable their and while the. memory They evidence remains fresh in witnesses. con- personal privilege say stitute the debtor to the debt is stale responsible a creditor hardship They for the entailed. bar the remedy, obligation. obligation The of a contract and the remedy it differ in origin. obliga- enforce time their The performance tion making arises of the contract and operates performance. anterior to remedy for the breach a performance cannot prior exist breach, to the operates and then preexisting obligation. Shelby to enforce County Bragg, 291, 300, states: of limitation "Statutes are favored in the law and cannot be avoided party seeking unless the brings strictly do so himself within exception. some ‘A party seek- ing to avoid the bar of the statute on account of fraud must aver and show that diligence he used due it, detect and if he had the discovery means of in his power, he will be held to have known it.’ A party . . . cannot avail himself of this exception to the statute where the discovering means of the truth were within power his were not used. . . . goes [Citations Plaintiff’s case omitted.]” no ignorance farther than of the facts.
The discussion assumes applicability of Article 17 of the Yard- Schedule; men’s and the result reached dispenses with the necessity considering óf any right in to invoke (d) expressly Article 10 authorizing a refusal yard- to return a man to service in the order of "good and sufficient cause” and defense of the Statute of Limitation in connection therewith. judgment is reversed. Westimes, G., concurs; Barrett, G., sitting.
PER CURIAM:—The foregoing opinion by Bohling, C., is adopted opinion as the of the court. All judges concur.