*1 1282
proving give damages, the best whieh the evidence nature Heinze, the case admits. and Loomis Ice Trans. Co. v. [Huse supra; Young Tilley, supra.] However, appears plaintiffs the sum court allowed expenses $71.20 Mr. Johnson’s automobile making in trip City return. Welfare, Texas, from Kansas Mr. Johnson testified he no kept account of the amount he ex- pended gasoline and oil. There no as to reason- Consequently, expenses ableness of trip. connection with the his we think he recover entitled to for this item. already plaintiffs judg-
The remittitur reduce made will the’ 25, 1939, August present $900 ment as of date suit was filed. covering required We think a further $36.40, remittitur should be paid notary taking the amount connection -with depositions Detroit, covering Michigan, $71.20, expenses Mr. driving Johnson made in connection with his automobile to City Welfare, Texas, return, Kansas or an additional total of $107.60. plaintiff, days,
Unless within ten file remittitur this court $107.60, said last-mentioned sum of will be re- Otherwise, versed and the cause remanded. it will affirmed. All concur.
OCTOBER, 1940. David P. v. Kurn and John G. M. Bradford, Respondent, Lons dale, Trustees of the St. Louis-San Francisco Appellants. 146 S. W. a Corporation, (2d) 644. City Appeals.
Kansas Court of December 1940. *2 Jerome Walsh, Boy Thomas B. Lawler and W. Bucher for re- spondent. E. Nahler, G. Henderson, Deacy Henderson, M. J. Thos. E. T)eacy, Henderson cO for appellants. Bvtofford *3 Bradford, defendants, SPERRY, Plaintiff, P. sued David C. in of the St. Lonsdale, Trustees
M. Kurn and John G. to a corporation. a Trial Louis-San-Franeisco moved defendants, whereupon plaintiff jury for resulted sustained, assigning as new trial. The motion was for weight of evidence. against was reason therefor that the verdict appealed. granting new From the order trial dispute plaintiff established that Facts about which there is no yardman by Francisco employed St. Louis-San working 1929; then in force written September 16, that there was Railway Company and the Brotherhood of agreement between the part con- Trainmen, which contract became Railway Company; employment with tract of date of his em- the terms of said contract worked under 17, 1930, when he ivas notified that ployment until November “extra, being due cut one, was board,” which containing the letter given a service he was business, and decreased following: he was force,” and leaving service—reduction “Beason to service. recalled never thereafter mentioned above “working agreement” sections Pertinent are as follows: in force. “(c) Beduction dis- reduced, the men involved yard are “When forces vacancy occurs or seniority. When their order of
placed or choice of runs men will created, senior new runs are vacancy. be returned in force will reduction account “(d) laid off Yardmen seniority, pro- their in order of increased forces are
to service when days from thirty (30) within they to actual service vided return good management has required, unless the date their are services line with returning them to service and sufficient cause reasons informed will be the committee seniority, in which event force reduction any Yardman laid off apply therefor. This subsequent to October 17.
“ABTIOLE “ man, any yard against charges are made (a) objections When or convey a full writing and statement put in should shall be objections charges. or given demerit discharged, or
“(b) suspended Yard men will not be inflicting punishment Before just marks without cause. sufficient asserting marks, prop- demerit dismissal, suspension or in form of *4 in- may at the investigation. They present be er official will hold of their choice. vestigation together employee awith disinterested investigation days is after All will be rendered within five decisions marks, any yard if dismissal, suspension held. In of or demerit case days ten right the within unjust, man he shall have thinks sentence Within by Superintendent. to to refer written statement his his case thorough a in- days notice, receipt ten of this the case shall of investigation Company, which vestigation by proper a of the at officer any by may desires, represented he if and also present he so be with In he dissatisfied employe disinterested choice. case is of his general right appeal investigation, he of to result of shall the suspension In form of dismissal or punishment, officers. unjust, is he shall be reinstated subsequently inflicted and found to paid regular ”... and at rates for all time lost. Eailway receivership
It went into undisputed is that the property appointed temporary and as trustees of the defendants were .1286 1933, 26, and appointed permanent on September
oil were trustees 28, 1933, are now charge and and have ever been in of October since under the United property its orders of States Court for the Eastern District of District Missouri. following stipulation offered in evidence,
The was and was admitted objection: without . .
“STIPULATION. hereby by stipulated agreed is parties “It and between the hereto that the St. Louis-San Francisco entered a contract with Brotherhood Trainmen upon into of 1st, 1919; that thereafter the November said contract was amended 1st, revised, 1924, and April or effective that said contract was in full time appoinment force and effect at the receiver for said company Louis; States that the United District Court at St. 1st, 1933, on thereafter and or about M. Kurn James and John October appointed G. Lonsdale were for trustees said com- by Court; pany, said Federal to that said contract above referred formally rejected been nor by trustees, has neither but as a matter of fact the trustees under this contract appointment 1st, since their became effective October Evidence on tended prove behalf to that he was “senior,” right employment, Pierce, to R. D. who was called January to work on or about 1,1934; that he was senior who McLaughlin, January 1, A. to to C. called work on about or seniority 1934; employees that list of 17, 1930, right as it existed on November established to be yardmen service, required, if and recalled to when more were before McLaughlin called; Pierce either or were at all ready, able, willing to for times work defendants until date 1939; trial, 15, December kept and that he had defendants informed availability times, as to his all whereabouts at report employment. but that he had been never notified He tending prove earnings, offered if also his he had been permitted January 1934, to work for defendants from and 1, after trial, substantially until date of would have been more than he had employment during been able to period earn at other of time. authority challenge court, Defendants first of the trial view particular case, grant facts evidence in this new trial. Supreme has said that: The Court long (Now 1929) standing R.
“Under statute of Sec. S. Mo. discretionary power grant trial has broad one new trial ground against evidence; verdict general the' that the and thé *5 by that judge rule is exercised the trial the discretion that respect disturbed, not be unless it be shown that a converse verdict could
1287 stand.” to permitted supporting [Davis not lack of evidence Johnson, 417, v. 332 Mo. 1.c. 421.] jury could the case Unless, therefore, the evidence in this under affirmed. must be plaintiff the have returned a verdict for of close at the demurrer, offered their Defendants that contend that contention of support have In case, the should been sustained. existing as employment contract of urge there no valid that 1933, 28, Railway October on Company and between the Railway bankrupt the when took the defendants over jury which upon ample We think Company. there exist. did employment could found that contract have such There (2d) Ry. Co., 133 W. Joseph v. St. Belt S. 675.] [McGee jury, the the being question sufficient evidence submit ground. demurrer on this properly could not sustain the granted such say that However, that even if it defendants Company and the contract did exist as between Rail- them, bankruptcy of the binding same could not be after the way obligations specifically unless assumed defendants Railway Company and working agreement between writing, filed mentioned, in Railway Trainmen, Brotherhood of above by Eastern approved and States District Court United adversely de- point District ruled of Missouri. This has been by position Appeals. Ward Springfield fendants’ Court Kurn, (2d) 245, that such S. W. 1. c. where the court held was, a contract, considered, be, here could and with the one identical by that became ratified the course of conduct of defendants so same writing- binding fully though on them as said ratification had been in as filed approved principle with and the court. We adhere to the there declared.
Lastly, urge defendants that there no substantial evidence actually tending- prove this and that ratified working employment, said contract under are They “working agreement” hereinbefore mentioned. contend distinguishes the facts in case from that of Ward evidence here this evidence, v. Kurn, supra. stipulation In the latter case there was 1. 249, agreed: e. wherein was Lonsdale, M. defendants,
“. . . Kurn and John G. first continuously subsequently as as from and after receivers respective such, appointments date of their as operating are the St. and its Louis-San Francisco property Schedule;’ and, under said ‘Yardmen’s that said defend- trustees, continuously ants, subsequently as receivers and respective such, and after the appointments dates of recognized to, recognize and consented and do now said ‘Yardmen’s yardmen Schedule’ as the contract of with all employ (Italics ours.) said defendants.”
Defendants stipulation contend that at bar fails they “continuously to state that from and after the dates respective appointments” operated under the “Yardmen’s working agreement. Schedule” or language
The stipulation in the case at bar is as follows: “As matter of fact the trustees have operated under this con- appointment tract since their 1st, became effective October language used in stipulation The liberally must construed and all inferences favorable to contention must be drawn therefrom when we consider with reference to a demurrer to the evidence. When so considered we think fair construction of the language used is that the trustees under that contract continuously from and after their appointment. purpose The of the stipulation dispense was to formality with the proof of this fact. Furthermore, disputed it is not that defendants called to work at employees least two other of the Company, immediately junior plaintiff, seniority accordance with their rating at set forth in rating schedule of such as introduced in evidence. It seems to generally many admitted that others have been also called. De- fendants admit that the “Yardmen’s Schedule” a part is of the con- tract of employees of those who them, been retained and of those who have since been they called service; they but have not adopted claim the con- except they tract as to those whom think employ. choose We cannot have the benefits of contract assuming without its burdens. They adopt part reject cannot it in Kurn, the balance. [Ward supra.]
We hold that demurrer properly overruled and that it was an abuse of discretion grant for the court to a new trial on the ground assigned. judgment
The is affirmed. Campbell, C., concurs. PER foregoing opinion CURIAM:—The Sperry, C., opinion court. The is affirmed. All concur.