# Wilburn v. Missouri-Kansas-Texas R. Co. of Texas

> Court of Appeals of Texas · May 14, 1954 · 268 S.W.2d 726

URL: https://www.frixlaw.com/law-library/cases/9773525

## Case

- **Full name:** Wilburn v. Missouri-Kansas-Texas R. Co. of Texas
- **Court:** Court of Appeals of Texas
- **Decided:** May 14, 1954
- **Citations:** 268 S.W.2d 726; 1954 Tex. App. LEXIS 2611
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Young
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773525

## How later opinions describe it (automated extraction)

- stating that ―[a] contract will not be construed to limit the remedial rights of the parties unless such an intention is clear‖

## Opinion text

On Rehearing
On further consideration- of the record we have concluded that lack of jurisdiction of appellant’s alleged cause of action appears on face of his pleading as supplemented; with result that appellee’s motion for rehearing must be sustained, the prior order of reversal set aside, thereby affirming the judgment under review.
. The following general statement of principles has bearing on the entire controversy, as we now view it: (1) Where the parties to a contract agree on the remedy accruing on a breach thereof, the remedy agreed upon is exclusive. Buffalo Pitts Co. v. Alderdice, Tex.Civ.App., 177 S.W. 1044 (writ ref.). The given remedy, of course, must afford adequate relief. Powers v. Sunylan Co., Tex.Com.App., 25 S.W.2d 808 . “A contract will not be-construed to limit the remedial rights of the parties unless such an intention is clear. But when parties stipulate in a contract what the consequences of a breach of the agreement shall be, such stipulation if reasonable is controlling and excludes other consequences.” 12 Am.Jur., Contracts, sec. 458, p. 1042.
(2) “* * * ‘Collective labor agreement’ and ‘trade agreement’ are terms used to describe a bargaining agreement as to wages and conditions of work, entered into by groups of employees, usually organized into a brotherhood or union, on one *732 side, and groups of employers, or corporations, such as railroad companies, on the other side.” 31 Am.Jur. 872; referred to in Federal Statutes, 45 U.S.C.A. § 152 (1-6), as an agreement “concerning rates of pay, rules, and. working conditions” as distinguished from the individual contracts of employment thereunder, referred to, 45 U.S. C.A. § 152(8), as “the contract of employment between the carrier and each employee”. Such an agreement may contain many provisions relative to conditions under which labor is to be performed, but is not in itself a contract of employment. “It is only an agreement as to terms on which contracts of employment may be satisfactorily made and carried out. It is a mutual general offer, to be closed by specific acceptance. When negotiated by representatives of an organization, it is called collective bargaining, but ordinarily the laws of the order do not require the members to serve under it, but only that if they serve they will do so according to its terms.” Rentschler v. Missouri Pac. R. Co., 126 Neb. 493 , 253 N.W. 694, 698 , 95 A.L.R. 1 . “The contracts of employment arise when individual men present themselves, are examined touching their knowledge of the railroad rules and other things, and stand the required physical examinations, and are severally accepted as employees. * * * In the absence of any special agreement other-vise, every employment may be presumed to be on the basis of the collective agreement and to adopt its terms. * * * When the collective agreement, tacitly or expressly, is taken as supplying any or all of the terms of the service of a particular employee, it still is not the contract, but only a standard to which the parties have referred in making their parol contract. * * * ” Illinois Cent. R. Co. v. Moore, 5 Cir., 112 F.2d 959, 964 ; reversed by U. S. Sup. Ct. on other grounds (Limitation), 312 U.S. 630 , 61 S.Ct. 754 , 85 L.Ed. 1089 .
(3) The matter of physical fitness of a railroad employee to discharge his required duties is of vital concern to the employer, fellow-employees, and the public; and adequate rules for physical examination of employees (such as appellant here relies upon) are properly a part of the collective agreement. Minneapolis, St. P., etc., R. Co. v. Rock., 279 U.S. 410 , 49 S.Ct 363 , 73 L.Ed. 766 .
(4) Appellant’s tenure of employment would have been at will except for Art. 81 of the quoted contract, precluding a suspension or discharge “without just and sufficient cause.” San Antonio Fire Fighters’ Local Union No. 84 v. Bell, Tex.Civ.App., 223 S.W. 506 . Here, plaintiff-does not deny that the full text of Art. 81 is contained in defendant’s plea in abatement, and reads: “(a) No fireman or hostler will be suspended or discharged or unfavorable entries made against his record without just and sufficient cause and without being given an investigation; and in case a fireman or hostler is taken off his engine or run, he shall be given, a hearing within five days from the time he is taken off. When a fireman or hostler is required to attend investigations, he will be given sufficient notice in advance to have his local or General Chairman or some engineman of his choice present, who will be permitted to question all witnesses in the case. Where stenographic notes are taken, enginemen will be furnished with a copy of all papers, (c) Every fireman or hostler shall at the end of his investigation be informed whether or not he is guilty, (d) When a fireman or hostler is brought to trial for any offense, the charges shall be specific, he shall have the right to produce witnesses to testify in his defense at such investigation and to examine all evidence papers concerning his case, and to question all persons giving evidence in his case in person or through his Local or General Chairman or some engineman of his choice, (e) An engineman who feels that he has been unjustly dealt with will have the right to appeal to his superior officer, through his Local or General Chairman. If found not guilty, he shall be reinstated, or discipline corrected and be paid for time lost.”
When the pleaded sections of appellant’s collective agreement are examined, it is manifest that wholly unrelated subjects are dealt with; one having to do with the *733 employee’s physical condition; the other with his discharge or suspension on just and sufficient grounds as authorized by Rule 81; and that it is with reference to disciplinary action of the latter type that the claimant has been accorded an election of remedies. Such was the subject matter of Moore v. Illinois Cent. Ry., 312 U.S. 630 , 61 S.Ct. 754 , thereby distinguishing it from the later case of Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239 , 70 S.Ct. 577, 580 , where the court had occasion to say: “Moore was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases.” Under Form 296 of the bargaining contract (Examinations) on the other hand, a continuance of the employment is contemplated, providing a method for determination of physical fitness in such connection. Otherwise stated, a claimed violation by defendant of the provisions of Form 296 bears no such relationship to the terms of Rule 81 providing against a discharge or suspension without good and sufficient cause, as would justify a claim for breach of the entire contract of employment. At most, there would result merely a refusal of defendant Company to arbitrate, constituting a grievance referable to the National Railroad Adjustment Board in accordance with, the terms and intend-ments of the collective agreement, and by which appellant was bound.
Brief notice should be taken of the argument of respective counsel on this controlling issue of law. Appellee correctly states, we think, that appellant’s only remedy at common law would be by mandamus to compel a re-examination, in which connection the district court would be wholly lacking in the alternative authority of making any determination concerning plaintiff’s physical efficiency, or to issue a directive pursuant thereto for reinstatement and back pay. Appellant counters by invoking the well settled rule that the railroad company cannot stand upon the bargaining agreement which it has refused to perform, as a defense to his action for breach of the contract based on such refusal; citing Mallehan v. Texas & P. R. Co., Tex.Civ.App., 87 S.W.2d 771 ; Moore County Carbon Co. v. Whitten, Tex.Civ.App., 140 S.W.2d 880 (wrongful discharge cases involving disciplinary measures, as we view them). Also it is argued that in said common law action the trial court always has jurisdiction to determine a litigant’s physical condition by competent evidence, medical or otherwise. Applicability of appellant’s invoked rule must turn on the nature of defendant’s alleged breach or renunciation of contract, and of whether the bargaining agreement itself provides against the contingency complained of. If it does, that remedy must be pursued to the exclusion of all others. Appellee is an interstate carrier. “Under principle that ■right of Congress to regulate interstate commerce is superior to right of parties to contract with relation thereto, federal statute creating National Railway Adjustment Board became part of all contracts by railroad companies with their employees subsisting at time of its effective date. Railway Labor Act, § 3 [subd. 1] (i), as amended, 45 U.S.C.A. § 153 [subd. 1] (i).” (Emphasis ours.) Mansell v. Texas & P. Ry. Co., 135 Tex. 31 , 137 S.W.2d 997 , syl. 1. 1
*734 Appellant’s thesis that the cause of action alleged entitled him to a common law determination of whether or not on August 11, 1951 he was “physically fit and able to perform the duties of a fireman,” is well answered by appellee in the following: That such argument “ignores the fundamental distinction which exists in this cause; that the court is dealing with the express provisions of a Collective Bargaining Agreement, which is executed under an ■ act of Congress in the public interest. It is to the public interest, as well as to the interest of -other employees of the defendant, that the physical capacity for discharging the duties of the employment be maintained in accordance with the administrative procedure which has been provided for in the contract between the Brotherhood and the defendant. Since such administrative procedure requires a condition precedent and prescribes the remedy for any breach, the plaintiff is bound to pursue such contract in the appropriate tribunal. Where determination has been left to an administrative body by statute (and the contract in this case was executed pursuant- to a federal statute), it is not the province of -courts to substitute their judgment or encroach upon the administrative body. Gray v. Powell, 314 U.S. 402 , 62 S.Ct. 326 , 86 L.Ed. 301 ; Securities and Exchange Comm. v. Chenery Corp., 318 U.S. 80 , 63 S.Ct. 454 , 87 L.Ed. 626 .” And quite relevant to the instant situation, appellee further points •out on rehearing: “There is a wide difference between a discharge because of affirmative action and a disqualification on account of physical disability as expressed in the contract which has been plead by plaintiff. Under its provisions there could be no discharge on account of physical disqualification and therefore the. specific remedy was provided, namely, reinstatement to the position which the employee held in the event the physical disqualification was improperly made. It was never intended that a court should determine that physical disqualification was improperly made by virtue of the specific provision for arbitration by qualified arbitrators in the event physical disqualification occurred.”
The judgment under review is accordingly affirmed without prejudice to the right of plaintiff to present any grievance or dispute arising under his pleadings to the National Railroad Adjustment Board. 2
. If we may be permitted to consider the supplemental petition of plaintiff, it is evident that the controversy between the parties relates to their basic agreement of 'bargaining; each claiming controlling effect of differently dated and worded provisions — obviously a matter for interpretation by the National Railroad Adjustment Board whose “members understand railroad problems and speak tbe railroad jargon.” It is thus seen that the alleged breach of contract is not absolute and unequivocal, which is necessary to excusing performance by the party aggrieved. If such were not the law, says the Court in Armstrong v. Ross, 61 W.Va. 38 , 55 S.E. 895, 899 , “it would be a dangerous thing to stand upon a con *734 troverted construction of a contract. Every man would act at his peril in such cases, and be subjected to the alternative of acquiescing in the interpretation adopted by his opponent, or putting to hazard his entire interest in the contract. The courts have never imposed terms so harsh, •or burdens of such weight. It would amount to a virtual denial of the right to Insist upon an honest, but erroneous, interpretation.”
. Attached to appellee’s motion to dismiss appeal for want oí jurisdiction, are papers reflecting a decision by -a special Board of Adjustment of date Eeb. 15, 1954, adverse to the claim of Wilburn; which agency is purportedly acting under provisions of the National Railroad Adjustment Board. This Court can do no more than take notice of such subsequent proceeding in connection with the overruling of said motion of appellee.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773525. Public record. Not legal advice.