both as to law and facts. To reiterate, each of the plaintiffs have a common and equal interest in the problem as to whether or not, under the terms and provisions of their contract, a right of recovery exists, which is a question of law, but they certainly do not have a common and undivided interest to any particular fund since one of the plaintiffs may be entitled to recovery and another may not, depending on the ability of each plaintiff to establish and prove that certain services were performed, the time of performance and that payment has not been made to that employee for said services, and this is clearly a factual question.
I, therefore, do not believe it would be proper to permit the intervention of the plaintiffs desired on the basis of the theory expounded by the plaintiffs since each of the plaintiffs had separate and distinct causes of action if the question of law is decided generally in favor of all the plaintiffs. There is not a common and undivided interest existing as to the ultimate recovery, and each of the claims of the intervenors do not contain the requisite amount of $ 3,000 or such diversity of citizenship as would justify the Court in finding that jurisdiction would exist. Although it would be convenient to adjudicate the similar questions which exist, as far as the intervenors are concerned, as long as the federal courts are courts of limited jurisdiction, it does not seem reasonable to throw additional burdens on already crowded federal dockets merely because controversies normally without their jurisdiction are similar or identical in some questions of law or fact in the case properly before the federal court. In this case there is no question in the mind of the Court that the claims of the intervenors could not have originally been filed in the federal court on the basis of diversity of citizenship and jurisdictional amount, and the purpose of permitting intervention is to facilitate federal practice and not to reduce litigation in the state courts.
However, the question of jurisdiction is always open for the consideration of the Court, and I believe it proper for the Court to consider whether or not the petition to intervene should be allowed under any other basic principle of law, or by a statute of the United States. Balck & Yates v. Mahogany Association, Inc., 3 Cir., 129 F.2d 227, 236, 148 A.L.R. 841.
Under the Judicial Code, 28 U.S.C.A. § 41, subsection (8), it is stated that the district court shall have jurisdiction, inter alia, as follows: 'of all suits and proceedings arising under any law regulating commerce.' The Railway Labor Act, 45 U.S.C.A. § 151 et seq. provides, inter alia, that the purpose of the act is 'for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions'; and 'for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' It places upon carriers and employees the duty of exerting every reasonable effort to settle said disputes by agreement, and prohibits the carrier from altering the rates of pay, rules, or working conditions except in the manner provided by the agreement or by the Act. Terminal R. Association v. Brotherhood of Railroad Trainmen et al., 318 U.S. 1, 5, 63 S. Ct. 420, 87 L. Ed. 571.
Also the fact that by the Railway Labor Act Congress has indicated its purpose to make negotiation between carrier and employees obligatory in case of industrial controversy, is in itself a declaration of public interest and policy. The power of Congress over interstate commerce extends to such regulations of the relations of rail carriers to their employees as are reasonably calculated to prevent the interruption of interstate commerce by strikes and their attendant disorders. The peaceable settlement of labor controversies that may seriously impair the ability of an interstate carrier to perform its service to the public is a matter of public concern. Virginian R. v. Federation, 300 U.S. 515, 57 S. Ct. 592, 81 L. Ed. 789.
Jurisdiction of the federal court, under the provisions of the Judicial Code giving federal jurisdiction of actions arising under any 'law regulating commerce,' is independent of the amount in controversy or diversity of citizenship. The only prerequisite is that the question which exists must arise under a federal and not under a state law regulating commerce. Young & Jones v. Hiawatha Gin & Mfg. Co., D.C., 17 F.2d 193; Primakow v. Railway Express Agency, D.C., 57 F.Supp. 933; Mulford et al. v. Smith et al., 307 U.S. 38, 59 S. Ct. 648, 83 L. Ed. 1092.
The Railway Labor Act is the means which Congress chose to secure the uninterrupted service of interstate railroads and is a federal law which regulates interstate commerce. Virginian R. v. Federation, 300 U.S. 515, 553, 57 S. Ct. 592, 81 L. Ed. 789.
In view of the above statements of law, it is necessary for the Court to decide whether or not the facts which give rise to the original complaint and the petition to intervene are such an outgrowth of a dispute between the defendant and its employees as to justify this Court in granting the petition to intervene on the basis of the provisions in the Judicial Code which grants original jurisdiction of all suits and proceedings arising under any law regulating commerce.
To answer this question reference must be made to the various allegations of fact which are set forth in the complaint and which for the purpose of the motion to intervene must be accepted as true.
In the motion to intervene it is set forth that the intervention is sought with regard to all of the claims set forth in the complaint, and the following paragraphs of the complaint appear relevant in passing on this question:
'IV. At all times during the aforesaid period, each of the plaintiffs has been employed as a trainman under the definition hereinafter set forth by the defendant corporation.
'V. During the said period, the members of the plaintiff class were so employed by the defendant corporation under a written contract, Articles 10 and 11 of which are as follows:
"Article 10 -- General Rules -- Definition of Word 'Trainmen'.
"The word 'Trainmen' used herein applies to conductors, ticket collectors, flagmen, brakemen, train baggage masters, yard foremen, yard helpers, and switch tenders.'
"Article 11 -- Outside Duties.
'(a) Trainmen required to tend switches, watch crossings or do any other work outside of their regularly assigned duties will be paid their regular wages, except when filling positions that pay a higher rate they shall receive the higher rate for the full day.
"(b) Trainmen will not be used to fire engines on outlawed trains tied up by law or for other reasons, or to take charge of engines when engine service employees are available. Where used, they will be paid a minimum of three hours at their regular rates per hour, plus what they would have earned in their regular service.
"Coupling Air and Chaining Cars.
"(c( At points where car inspectors or air inspectors are available, trainmen will not be required to couple air or steam hose.
"(d) Trainmen will not be required to chain or unchain cars at points where car inspectors are available.'
'The said written contract is in the possession of the defendant corporation, and the contents thereof thus are well known to the defendant.'
'VII. At various times during the aforesaid period, the members of said class being trainmen, as aforesaid, in the employ of the defendant, and including the named plaintiffs herein, coupled air or steam hose, on various occasions, at points were car inspectors and air inspectors were available.'
'IX. The said acts of the said members of the plaintiff class, in each instance, were done in the course of their employment as trainmen for the defendant corporation, and were required.
'X. The said acts of the said members of the plaintiff class, in each instance, were done at points where car inspectors and air inspectors were available.'
'XII. (a) At all times during said period, and at all times relevant to this action, it has been the general, nationwide and established or habitual practice and customary practice and custom among railroads and employees thereof that a trainman is entitled to additional pay when he performs one or more acts specifically not required by the trainmen's contract with the railroad.
'(b) At all times during said period, and at all times relevant to this action, it has been the general, nationwide and established or habitual practice and customary practice and custom among railroads and trainmen thereof that a trainman is entitled to additional pay for an additional day on each day on which he is required to perform, and does perform, acts which ordinarily are performed by men in a different craft, unless his contract with the railroad fixes a different measure of pay for such performance.
'(c) Those said usages, habitual practices, customary practices and customs have been assented to invariably by the defendant corporation throughout said period, and prior thereto, with regard to other employees and trainmen. Those said usages, habitual practices, customary practices and customs, during said period, and prior thereto, invariably have been recognized and assented to by the defendant corporation with regard to other performances by trainmen employed by the defendant corporation, and by reason of which the parties to said contract at all times considered and believed and intended that said usages, habitual practices, customary practices and customs were a part of said contract.
'XIII. (a) The said acts so performed by the plaintiffs were acts which, by the above quoted provisions of said contract, are acts to be performed by members of a craft other than trainmen.
'(b) In the case at bar, the aforesaid contract is silent as to the amount of additional pay to which the trainman is entitled in payment for such performance.
'(c) The said employment of each member of the class was under the contract aforesaid, and in every respect in which the contract was silent was in accordance with and subject to the established, general and nationwide usages, practices and customs among railroads and employees thereof, and including the usages, practices and customs hereinabove set forth.
'(d) Therefore, by reason of the matters hereinabove set forth, each of the plaintiffs, members of said class, became entitled to additional pay by the defendant corporation for an additional day, on each day in which he performed one or more of the acts set forth in Paragraphs VII, VIII, IX and X hereinabove.'
It is, in substance, the contention of the plaintiffs as set forth in the complaint that under the provisions of the trainmen's contract with the defendant, which under the provisions of the law it was required that said contract should be executed in accordance with the Railway Labor Act, it was a general nation-wide and established, or habitual and customary practice to compensate a trainman with additional pay when he performed one or more acts, such as coupling air or steam hose, on the basis of the fees generally paid for said services.
The question of whether or not a recovery may be had for extra work or services outside the contract being performed in connection therewith is dependent on the proper construction of the contract. If the services for which extra compensation is claimed are included, and those for which the agreed compensation is stipulated, no further recovery may be had. On the other hand, recovery may be had for services rendered outside the terms of the contract but, in connection therewith, at the expressed or implied request of the other party. No recovery can be had for extra work unless performed with the knowledge and consent of the other party. 17 C.J.S., Contracts, Sec. 364; 13 C.J. Paragraph 588, Page 585.
A common-law custom is required to be certain and uniform, both as to the persons claiming under it and as to the things claimed. Also a usage or custom of trade must be certain in order to be binding. A custom must be compulsory and not left to each one's option to obey it, and a usage, in order to be regarded as entering into a contract, must be clearly distinguished from mere acts of courtesy or accommodation. 17 C.J. 453, Customs and Usages, Section 11, 25 C.J.S., Customs and Usages, Sec. 5; Sickelco v. Union Pacific R. Co., 9 Cir., 111 F.2d 746; Jarka Corp. v. Penna. R. Co., 4 Cir., 130 F.2d 804.
It, therefore, appears well settled that parties who contract on a subject matter concerning where known usages or customs are prevailing, incorporate such usages or customs by implication into their agreements if nothing is said to the contrary. Dixon et al. v. Chase Nat. Bank of New York, 2 Cir., 144 F.2d 759, 762.
Also a general custom need not be pleaded, such as was done in this case, since the Court may take judicial knowledge of a custom which extends throughout the country and is recognized as part of the common law. In re Bowling Green Milling Co., Inc., 6 Cir., 143 F.2d 279.
I realize that the custom or usage may not be shown to vary the terms of the written contract unless the custom or usage is so well established, general and uniform that the parties are presumed to act and contract with reference to it, and that said custom or usage can only be proven by instances of actual practice or a succession of individual facts and cannot be proven by the opinion of a witness. Wilson Distilling Co. v. Foust Distilling Co., D.C., 60 F.Supp. 373, 375.
To recapitulate, it is set forth in the complaint that the defendant is engaged in interstate commerce; that the original plaintiffs and the petitioners who desire to intervene were employed as trainmen, and were working for the defendant by virtue of the provisions of a written contract; that said contract provided that the plaintiffs would not be required to couple air or steam hose where car inspectors or air inspectors were available; that no provision was made for the payment to said employees where said services were performed, and that by virtue of a general nationwide and established or habitual practice and custom, said employees were entitled to additional pay when said services were rendered.
It is impossible for me to decide at this time whether the custom or usage can be established in accordance with the measure of proof required by law. However, the allegations of fact in connection therewith specifically refer to an abrogation or modification of the contract executed under the provisions of the Railway Labor Act. The Railway Labor Act is a law regulating interstate commerce and, therefore, under the provisions of the Judicial Code, this Court will have jurisdiction independent of the amount in controversy or diversity of citizenship. Primakow v. Railway Express Agency, D.C., 57 F.Supp. 933; Mulford v. Smith, 307 U.S. 38, 46, 59 S. Ct. 648, 83 L. Ed. 1092.
It is, therefore, my opinion that the motion to intervene should be granted since the basis of the cause of action involves the interpretation of the contract which was required to be drawn under the provisions of the Railway Labor Act and, as a result thereof, there is a question existing which arises under a law regulating commerce, and, under the provisions of the Judicial Code, original jurisdiction is vested in this Court.
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