Appeal from the District Court of the United States for the Northern District of Indiana, Fort Wayne Division; Thomas W. Slick, Judge.
Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.
This was an action by appellee to recover damages for breach of an oral contract. The jury returned a verdict for $4500, upon which a judgment was rendered, and from that judgment this appeal is prosecuted.
The errors assigned and relied upon are (1) overruling appellant's demurrer to the complaint, (2) refusing to direct a verdict for appellant at the close of the evidence, and (3) failure to give to the jury appellant's requested instruction to find for the appellant.
The material allegations of the complaint are in substance as follows: Appellant, a railroad corporation organized under the laws of Maryland, had for many years operated its road through Indiana, where it owned and operated repair, machine, and construction shops at Garrett, in which a large number of men were employed. In 1911 appellee was employed by appellant as a machinist's helper in the repair shop, and continued in such employment until 1919, when he was transferred to the car department as a carman's helper, where he continued to work as such until July, 1922. In that month a general strike was called by the machinists and other crafts in the shops at Garrett and at all other points on appellant's line from Baltimore to Chicago, and appellee and all other members of his craft, and of the union organization walked out.
Thereafter, appellant, by Howard W. Mountz and the company's shop superintendent, Robinson, and by its officers and representatives in charge, requested and urged appellee to return to his work, and promised him that if he would do so during the pendency of the strike, appellant would provide permanent and continuous employment for him during his lifetime at the same wages received by him previous to the strike. Appellee accepted the promise and in reliance thereon returned to his work in August, at a daily wage of $4.72. He was retained in said employment by appellant, which acknowledged the same to be in consideration of its promise and agreement, until May 15, 1931, when he was discharged without cause or fault on his part. Appellee had performed his part of the contract and was at all times ready, willing and able to continue to do so, but was prevented by appellant from so doing. The complaint concluded with allegations of general and special damages resulting from the discharge.
It is suggested, rather than urged, by appellant, that the complaint is not sufficient to withstand the demurrer, because it lacks allegations showing that the persons alleged to have made the contract for appellant with appellee had authority to bind appellant. In oral argument, however, appellant conceded that the complaint was probably good as against the demurrer. With this admission, we quite agree, for if, as alleged, appellant by its representatives entered into the agreement, that allegation of necessity includes the further allegation that the representatives had authority to so bind appellant. If, however, this were not so, the complaint would still be sufficient to withstand the demurrer because of the further allegation that appellant subsequently ratified the acts of its representatives who entered into the contract. The authorities relied upon by appellant with respect to this assignment are not inconsistent with our conclusions. The demurrer was properly overruled.
The remaining questions depend for solution upon the proof that was introduced and the facts that must be conceded to have been found by the general verdict of the jury. They are summarized as follows: Appellee was employed by appellant in March, 1911, as a machinist's helper. In May he was put to work packing boxes on engines and drivers. In 1919 he became a tank tender, and his work continued until within a few days before the strike on July 1, 1922. At that particular time he was temporarily away. He owned a small farm of seventeen acres near Garrett, on which was a modern nine-room house, where he lived with his wife and five children ranging in age from five months to twelve years. They attended church at Garrett, and the children of school age attended school at Garrett. At the time of the strike, Howard W. Mountz was a member of the firm of Mountz and Brinkerhoff, local counsel for appellant. After the strike was called, Mountz called at appellee's home and in the presence of appellee's wife and children said that appellant wanted appellee to return to work; that they needed someone to break the ice so that the others would follow, and that if appellee would return to work the company would give him a lifetime job at the same wages that he had been getting. The wife refused to assent, and Mountz urged her to do so because her husband would then have a lifetime job, which he would need in order to educate his children. He further assured them that the company would protect him and his family. The next day appellee called at Mountz' office where Mountz repeated the promise to him of a lifetime job at his previous wage, and protection to him and his family, whereupon appellee agreed to return to work under those conditions. The next morning before daylight appellee went to the shops by a by-path so that the union pickets around the shops would not see him. The shops were surrounded by a high fence and guarded by over one hundred armed special police officers. There appellee was taken charge of by Robinson, hereinbefore referred to, who had formerly been a superintendent on the road, but at and for some time previous to the strike was an executive officer of the railroad, being the superintendent of fuels over the entire system of eleven thousand miles. At that time, there were no other persons at work except officials and strangers who were brought in and housed in coach cars and fed from a commissary in the shop yards.
On the night following appellee's return to work, his house was surrounded by union pickets who threatened to blow it up. They remained there all night, some staying on the porch, and the family was kept up all night by their threats. They returned to appellee's home the next night and conducted themselves in the same manner as before, threatening to blow up the house, to break the windows and to kill appellee's cow. The next morning appellee's wife, with her five months old baby, went over to the gate surrounding the shop yards. She sent for her husband and told him of the actions and threats of the pickets, and he told her he would go home. When he started to do so he was met by Robinson and one Sapp, who was chief of the railroad police at Garrett. Robinson urged him not to go home; that the damage had already been done; that the union men would have it in for him anyhow, and that he had a life job with the company if he would stay. Appellee insisted on going home and Robinson accompanied him, and conferred with appellee's wife. At that time, two dozen strikers were on a nearby overhead bridge watching the house. Robinson urged upon appellee and his wife the duty of appellee to return to work; that he had a life job and that it was necessary for him to rear and educate his children, and give them an opportunity, and if he would return, the company would protect him and his family from harm. Thereupon, appellee returned to his work.
The strike was settled in September, and the returning strikers immediately began to harass appellee. They put grease in his lunch, hid his tools, called him names and interfered with his work in order to make trouble between him and the company. As a result of this conduct, appellee went to consult Mr. Mountz at his office and Mountz gave him a letter to Robinson at Baltimore. He went to Baltimore but Robinson was not in and he delivered the letter to Robinson's clerk. He undertook to see vice-president Galloway, and waited all day for that purpose, but without avail. Upon his return he was reproached by the master mechanic, the general foreman and the division superintendent for going to Baltimore over their heads. The division superintendent told him they did not want him to do this any more and they would give him satisfaction, as he had orders from Baltimore to protect him and take care of him.
In 1926 appellee was furloughed. He consulted with the master mechanic, Short, and reminded him of his life contract with the company, and asked him if he should take the matter up with Baltimore. Short instructed him to return the next day. This he did and he was asked if he would take a job cleaning coaches at the depot, to which he replied that he would do anything to make a living so long as he was not discharged, and Short then told him he would not be discharged. The regular scale for cleaning coaches was thirty-nine cents an hour, but the company paid him fifty-four cents per hour for that work. In about three months the superintendent notified him that he was being paid fifty-four cents for work which should be paid for at the rate of thirty-nine cents per hour, whereupon, he wrote to the superintendent, and his wages were not cut.
He was furloughed again on May 15, 1931.At that time he reminded the division superintendent of the promise that had been made to him during the strike. Thereafter he made repeated applications to appellant for employment; he talked to Mountz, and again went to Baltimore and saw President Willard, but without avail. He was never afterwards given any work by appellant, although he was at all times ready, able and willing to return to work. He made repeated efforts to secure employment elsewhere, but he was black-listed by the unions at other plants. He was on furlough from May 15, 1931 to December, 1932, when he was discharged by appellant.
The verdict of the jury establishes the fact that the contract was made with appellee by Mountz and Robinson who for that purpose essayed to act as representatives of appellant. It must be conceded that in so doing, neither Mountz as local counsel, nor Robinson as superintendent of fuel for the entire system of appellant's railroad, acted within the scope of the duties of those respective employments. Even so, their duties may have been enlarged by appellant, under the exigencies of the situation then present, to such an extent as to authorize the contract; or appellant may have subsequently ratified the unauthorized contract, in which event it would be valid ab initio. The record discloses no direct evidence that the authority of ...