Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division.
Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
ALSCHULER, Circuit Judge.
St. Clair, appellant, sued appellee, his former employer, to recover for alleged breach of contract of employment made by a wage agreement between the employer and the labor union of which St. Clair was a member. The verdict was for appellee, and the appeal is from the judgment thereon.
St. Clair had worked for this employer a number of years as a railroad conductor, but for some time prior to termination of his service he had been working as a brakeman, with seniority rights for resuming the status of conductor when the company's business warranted. He belonged to the Order of Railway Conductors, but while working as a brakeman the stipulated Schedule of the Railway Trainmen governed the relations between employer and employee. Rule 50 of the Schedule is set forth in the margin,*fn* and this controversy has to do largely with that part of it which provides: "Trainmen taken out of service or censured for cause, shall be notified by the Company of the reason therefor and shall be given a hearing within five (5) days after being taken out of service, if demanded, and if held longer shall be paid for all time so held at their regulat rates of pay." Provision is made for trainmen to bring witnesses, and for appeal to a higher officer if the decision is unsatisfactory; and it is specified that the decision shall be made known within three days after the hearing or the trainman shall be paid for all time lost after their expiration. Under these provisions the time lost, as specified, must be paid for regardless of the ultimate decision on the suspension or dismissal.
St. Clair ran out of Aberdeen, S.D. In April, 1928, he asked and was granted a furlough for ninety days beginning April 16, which time was subsequently extended. He went to Indianapolis, returning to Aberdeen and reporting for work August 28, whereupon, on that date, he was notified in writing that he was taken out of service due to statements made by him in a letter of April 20, 1928, copies of which he had mailed to the company's president, vice president, and general manager. On the same date he was advised, in writing, that a charge against him was pending in connection with statements made in the letter of April 20; and on the same date he was notified that an investigation would held in the trainmaster's office at Aberdeen, Wednesday, August 29, at 10 a. m. respecting the charge growing out of the sending of the letter of April 20. Thereupon St. Clair told the trainmaster that the time fixed was too short to prepare for the investigation, and the time was extended by agreement to September 3. On September 1 St. Clair wrote the trainmaster, saying: "This letter is to advise that the investigation as per your notice of August 28, 1928 arranged to be held of August 28, 1928 arranged to be held on September 1 is postponed, on account that the representative that I have selected to be present cannot be in Aberdeen on the date fixed. You will be advised in ample time when he can be in Aberdeen for this investigation."
Under date of September 2, 1928, the trainmaster sent a note directed "To the Superintendent Employment Bureau," saying: "The service of A. A. St. Clair, Conductor West H & D Division, Terminated on September 2, 1928. Dismissed account violation of Trainsmen's Schedule Rule 50."
Under date of September 11, 1928, St. Clair wrote to the trainmaster:
"I have information that my services for the C.M. St. P. & P. Railroad are dispensed with, in other words discharged under the date of September 2nd, 1928.
"This letter is for the purpose of protest, of any such entry being recorded on my service record."
St. Clair testified that after his discharge he took the case up with his union, which was authorized to represent him.
It seems that the general manager of the railroad was expecting to be at Aberdeen about May 6, 1929, and would then consider St. Clair's case. On May 7, Kennedy, general chairman of the Brotherhood, wired the general manager that he had had a talk with St. Clair, and that they desired the meeting postponed because it was impossible to get parties there. Kennedy also notified St. Clair of the postponement of the meeting. Afterwards, on July 12, 1929, appellee's general manager wired the general chairman of the Order of Railway Conductors, saying: "I would prefer that you set a date for the hearing; and when you have determined on a date, let me know and will advise if satisfactory."
Notwithstanding St. Clair's notice of September 1, 1928, peremptorily postponing the date of hearing from September 3 and saying he would advise when his representative could be in Aberdeen for the investigation, and the subsequent postponement of date of hearing by the officials of the union, and the notice to them to fix their own time for the hearing, no such date was ever fixed and no hearing was ever had.
Mr. Beeler, general chairman of the Order of Railway Conductors, testified that after the general manager had written suggesting that Beeler set the date for the hearing, Beeler wrote St. Clair asking him to set a date and give time for notice to permit witnesses to be present. His letter to that effect, dated May 4, 1931, is in evidence, bu the never heard from St. Clair after writing that ...