SOU. RY. CO. v. ORDER OF RY. COND. OF AM

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Docket Number

16254

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Railroads — Railway Labor — General Provisions — Definitions; Short Title

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SOUTHERN RY. CO. v. ORDER OF RY. CONDUCTORS OF AMERICA.

Messrs. Mitchell Horlbeck, of Charleston, and Elliott, Shuttleworth Ingersoll, and V.C. Shuttleworth, of Cedar Rapids, Iowa, for Appellant, cite: As to the Federal Railway Labor Act governing all railway labor disputes: 327 U.S. 661, 676; 281 U.S. 548; 300 U.S. 515; 330 U.S. 767; 167 F.2d 183; 77 F. Supp. 656; 77 F. Supp. 659; 357 Pa. 379, 54 A.2d 891. As to the Federal Railway Labor Act precluding judicial intervention in labor controversies of interstate railroads: 327 U.S. 540; 320 U.S. 323; 320 U.S. 297; 320 U.S. 338; 321 U.S. 50; 323 U.S. 192; 326 U.S. 561, 66 S.Ct. 322; 327 U.S. 661, 676; 326 U.S. 561; 156 F.2d 1; 159 F.2d 822; 164 F.2d 4; 323 U.S. 192. As to specialized administrative tribunals having primary jurisdiction in railroad labor disputes: 326 U.S. 561; 204 U.S. 426; 284 U.S. 474; 314 U.S. 402; 5 F. Supp. 612; 329 U.S. 287, 67 S.Ct. 207; 105 F.2d 1; 308 U.S. 522; 303 U.S. 41; 19 F. Supp. 607; 259 U.S. 285; 299 U.S. 393, 396; 284 U.S. 474. As to the National Railroad Adjustment Board having exclusive primary jurisdiction of the instant dispute: 327 U.S. 661; 326 U.S. 561, 66 S.Ct. 322; 230 U.S. 247, 267, 33 S.Ct. 916, 924; 326 U.S. 565, 566, 568; 164 F.2d 4. As to the Federal decisions being decisive: 66 S.Ct. 322, 326 U.S. 561; 169 F.2d 557; 136 F.2d 412; 321 U.S. 342; 35 Am. Jur. 485, Sec. 54 et seq.; 320 U.S. 323, 332, 337; 321 U.S. 50; 323 U.S. 192, 205; 280 U.S. 83; 300 U.S. 98; 14 Am. Jur. 291, Sec. 79; 230 U.S. 247; 218 U.S. 205; 327 U.S. 540, 544; 156 F.2d 1. As to the limits to the jurisdiction and power of the court to bar or foreclose rights of individual conductors through their collective bargaining agent: 325 U.S. 711; 169 F.2d 557, 559, 560; 300 U.S. 515, 545, 553, 554. As to error of trial judge in ruling that no other remedy existed: 330 U.S. 767; 101 F.2d 426. As to Congress creating the Adjustment Board as an inclusive plan to achieve uniformity and specialization of decision and eliminate accumulation of unsettled disputes: 325 U.S. 711, 726; 325 U.S. 711, 727, 728; 327 U.S. 661, 663, 664.

Messrs. Barnwell Whaley, of Charleston, Frank G. Tompkins, of Columbia, and Henry L. Walker, W.S. Macgill, and Sidney S. Alderman, of Washington, D.C., for Respondent, cite: As to an affidavit not being admissible in evidence: 126 S.C. 1, 119 S.E. 776; Wigmore on Evidence, 3rd Ed., Sec. 1709, 1636, 1678. As to the Court having jurisdiction to render a declaratory judgment in this case: 210 S.C. 121, 41 S.E.2d 774. As to decision on former appeal being the "law of the case" and the questions then decided being res adjudicate: 65 S.C. 410, 43 S.E. 884, 887; 164 S.C. 2, 161 S.E. 769, 774; 196 S.C. 51, 12 S.E.2d 545; 78 S.C. 105, 58 S.E. 955; 92 S.C. 354; 75 S.E. 542; 84 S.C. 193, 65 S.E. 1050; 128 S.C. 478, 123 S.E. 100; 93 S.C. 148, 76 S.E. 117; 201 S.C. 447, 23 S.E.2d 362; 210 S.C. 440, 43 S.E.2d 143; 203 S.C. 263, 17 S.E.2d 230; 171 S.C. 301, 172 S.E. 135; 118 S.C. 81, 109 S.E. 799; 171 S.C. 221, 171 S.E. 42; 111 S.C. 400, 98 S.E. 144. As to the state court having power to make a declaration of rights of the parties under a railroad collective bargaining contract: 191 P.2d 882. As to the Railway Labor Act providing an alternative and cumulative remedy: 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089; 263 Ky. 578, 92 S.W.2d 2d 749; 198 Minn. 203, 269 N.W. 407; 101 S.W.2d 114 (Mo.App.); 232 Mo. App. 639, 110 S.W.2d 389; 191 Ga. 395, 12 S.E.2d 611; 130 N.J. Eq. 75, 21 A.2d 334; 154 S.W.2d 417; 86 F.2d 481, 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879. As to the Railway Labor Act not ousting the jurisdiction of the courts to interpret and enforce an agreement between a carrier and its employees: 312 U.S. 630, 61 S. Ct. 754, 85 L.Ed. 1089; 124 F.2d 235, 249; 319 U.S. 732, 63 S.Ct. 1430, 87 L.Ed. 1694; 121 F.2d 808; 146 F.2d 62, 324 U.S. 872, 65 S.Ct. 1017, 325 U.S. 893, 65 S.Ct. 1183; 50 C.S.2d 292, 123 P.2d 39; (Tex.Civ.App.) 173 S.W.2d 357; (Tex.) 183 S.W.2d 716; 191 Ga. 395, 12 S.E.2d 611; (N.Y. Sup. Ct.) 183 Misc. 454, 50 N.Y.S.2d 313, 269 App. Div. 467, 57 N.Y.S.2d 65, 83 N.Y.S.2d 513; 56 F. Supp. 634; 191 P.2d 882; 169 F.2d 557; 63 F. Supp. 306, 308. As to the Railway Adjustment Board not being a specialized administrative tribunal having primary jurisdiction: 210 S.C. 121, 41 S.E.2d 774; 183 Misc. 454, 50 N.Y.S.2d 313; 83 N.Y.S.2d 513. As to the court's refusal to grant leave to amend the answer a second time being proper: 170 S.C. 86, 169 S.E. 843; 174 S.C. 537, 178 S.E. 139. As to the trial judge properly exercising his discretion in granting the declaratory judgment: 138 F.2d 121; Borchard, Declaratory Judgments (2nd Ed.) 499; 162 A.L.R. 756, 781, 782, Anno.; 191 P.2d 882.

Messrs. Mulholland, Robie McEwen, and Willard H. McEwen, of Toledo, Ohio, for Railway Labor Executives' Association, Amicus Curiae, cite: As to no decisions of the Supreme Court of the United States hold that a railroad carrier company may seek an initial interpretation of a collective bargaining contract in the Courts: 312 U.S. 630; 323 U.S. 192; 124 F.2d 235; 319 U.S. 733; 326 U.S. 561. As to the nature and reasons for the rule of prior resort: 204 U.S. 426; 259 U.S. 285; 281 U.S. 412; 284 U.S. 478; 307 U.S. 125; Stason, "Timing of Judicial Redress from Erroneous Administrative Action", 25 Minn. Law Rev. 560; 42 Am. Jur. 698; 303 U.S. 41; 28 F. Supp. 613; 106 N Y L.J. 1483; 182 Tenn. 236, 185 S.W.2d 525; 63 F. Supp. 411; 132 N.J. Eq. 210, 28 A.2d 41; (Calif. App.) 15 L.R.R.J. 915; 146 F.2d 62, 324 U.S. 872. As to the reason for applying the rule of prior resort to the Railway Adjustment Board: 300 U.S. 515; 46 Yale L.J. 567.

Messrs Mitchell Horlbeck, of Charleston, and Elliott, Shuttleworth Ingersoll and V.C. Shuttleworth, of Cedar Rapids, Iowa, for Appellant, in reply.

August 15, 1949.

PER CURIAM.

The well considered decree of the Court below, which will be reported, is affirmed for the reasons therein stated. It is only necessary, therefore, to discuss certain minor questions raised by the exceptions but not referred to or disposed of in this decree.

The Court below denied a motion by appellant to amend its answer by alleging that subsequent to the commencement of this action, this dispute was submitted by appellant to the National Railroad Adjustment Board where it is now pending. Appellant also offered in evidence, and the Court excluded, a certified copy of the file of the First Division of the National Railroad Adjustment Board relating to the claims of the conductors involved in this action which showed that these claims had been submitted to and were still pending before that body. It was held that the same controversy was pending before the National Railroad Adjustment Board constituted no defense to this action. Appellant challenges this ruling and further contends that this was a circumstance to be considered in determining whether the Court should enter a decree on the merits. It was held by this Court on the first appeal, 210 S.C. 121, 41 S.E.2d 774, that the courts had jurisdiction to determine this controversy and that the remedies provided by the Railroad Labor Act, 45 U.S.C.A. § 151 et seq., were not exclusive. The fact that this dispute had been submitted by appellant to said Board was shown by other testimony in the case and was no doubt considered by the Court below in determining whether it would enter a declaratory judgment. It has also been given due consideration by this Court. The error, if any, in refusing to allow the amendment and in excluding the testimony mentioned was, for the reasons stated, not prejudicial.

Appellant claims that the Court erred in excluding an affidavit by the Executive Secretary of the First Division of the National Railroad Adjustment Board which was offered for the purpose of showing the number of cases filed with that Division on behalf of the employees of the Southern Railway Company from December 9, 1935, to June 12, 1947, the number disposed of, either by awards entered or cases withdrawn, and the number still pending. This affidavit, and the number still pending. This affidavit does not purport to be a certified copy of the docket on the First Division of the National Railroad Adjustment Board. It is a mere tabulation made by the affiant as a result of the examinations of the records in his custody. It was clearly inadmissible. It may not be amiss to state that it is apparently conceded that one statement contained therein is incorrect.

Finally, it is contended that the Court below erred in admitting certain testimony offered by respondent tending to show the interpretations placed upon various provisions of the contract by the parties and the usages and practices which had prevailed over a number of years, it being contended that this testimony tended to vary or add to the terms of the contract. We think the testimony was competent. Indeed, without reservation of objection, testimony along the same line was offered by appellant. The exceptions relating to this question are overruled.

Appellant has argued against our holding in the former opinion that the courts of this State had jurisdiction of the subject-matter. It is earnestly contended that the action should be dismissed for lack of jurisdiction. This question was fully considered on the first appeal and that decision is the "law of the case". We are now not at liberty to review it even if we desired to do so. Jones v. Charleston W.C.R. Co., 65 S.C. 410, 43 S.E. 884; Jenkins v. Southern Railway Co. et al., 145 S.C. 161, 143 S.E. 13; National Bank of Newberry v. Livingston et al., 164 S.C. 2, 161 S.E. 769; Cohen v. Standard Accident Insurance Co., 203 S.C. 263, 17 S.E.2d 230.

All exceptions are overruled and judgment affirmed.

BAKER, C.J., and FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.

SOUTHERN RY. CO. v. ORDER OF RY. CONDUCTORS OF AMERICA.

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