Before MARIS, GOODRICH, and MCLAUGHLIN, Circuit Judges.
MCLAUGHLIN, C.J.: Appellant sued in the district court for alleged wrongful discharge from his employment with the defendant-appellee railroad. There was a jury verdict in favor of the defendant. A motion for new trial on behalf of the plaintiff was made, argued and denied. Plaintiff appeals from the judgment entered against him.
The district court had jurisdiction over the plaintiff's claim. Newman v. Baltimore & Ohio R. Co., 191 F.2d 560 (3 Cir. 1951); Moore v. Illinois Central R. Co., 312 U.S. 630
Appellant was first employed by the railroad in 1923. He had worked in various capacities, including sheet metal helper. On February 1, 1950 he was laid off for lack of work. On May 1, 1950, prior to resuming active employment, at the company's request, through C. E. Gainer, Division Master Mechanic, he (under protest he says) signed the following:
"I, the undersigned, Harry L. Cranston, Sheet Metal Worker Helper at Glenwood Roundhouse, do hereby agree that if I am permitted to return to work as sheet metal worker helper at Glenwood Roundhouse, I will abide by all the rules of the Baltimore & Ohio Railroad Company, and of my agreement, and will report for work on time, work steady every day that I am physically able to do so, and if I fail to carry out this agreement in any respect, I will immediately resign from the service of the Baltimore and Ohio Railroad Company."
The paper was witnessed by T. H. Emswiller, Committeeman from his own union, the Sheet Metal Workers.
Appellant reported for work May 2, 1950.He did not so report May 3rd or, according to the defense evidence, at any time thereafter until immediately following his receipt of a letter from Gainer, dated May 19, 1950, notifying him of being dropped from service under the provisions of Rule 19 of the agreement between the railroad and the unions. That rule reads:
"* * * Employees absenting themselves for fifteen (15) days without notifying management shall be considered as out of service and dropped from rolls and seniority roster."
There is no indication in the record that appellant ever resigned nor is there any assertion by the railroad to that effect. Appellant testified that within the fifteen day period he did see and speak to his superior and union officials about returning to work. There is uncontradicted evidence that appellant saw one of the railroad's clerks on May 11, 1950 and filled out and received a company slip for unemployment compensation.
The court posed the primary issue to plaintiff's counsel, saying:
"* * * it is just a question of credibility of witnesses whether he reported. Whether he said he did or didn't. I don't know whether Doherty will throw any light on this subject.
Mr. Schlesinger: I think he will."
Mr. Schlesinger at pretrial, in objecting to an amendment of its answer suggested by the defense, stated that Cranston "* * * was discharged summarily under Rule 19 in ...