Whitaker v. Boston & Maine Railroad

Massachusetts Supreme Judicial Court

Whitaker v. Boston & Maine Railroad

180 N.E.2d 454, 343 Mass. 684, 1962 Mass. LEXIS 866, 49 L.R.R.M. (BNA) 2849

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 28, 1962

StatusPublished

Cited by5 cases

This text of 180 N.E.2d 454 (Whitaker v. Boston & Maine Railroad) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whitaker v. Boston & Maine Railroad, 180 N.E.2d 454, 343 Mass. 684, 1962 Mass. LEXIS 866, 49 L.R.R.M. (BNA) 2849 (Mass. 1962).

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Opinion

Whittemore, J.

The defendant’s demurrer to the amended bill of complaint asserting wrongful reduction of rank on an employment roster on April 9,1949, and seeking replacement and damages, was properly sustained.

The suit was begun February 5,1958. The amended bill alleges that, in violation of his employment contract and [685]*685pursuant to a ruling of the National Railroad Adjustment Board,¹ after a hearing of which the plaintiff had no notice and at which he was not represented, the defendant placed him at the bottom of the conductors’ roster. It alleges also that the plaintiff “diligently urged” the defendant “to disregard the invalid order” and that he “diligently protested” the defendant’s action but the defendant “has ignored such protest up to the time of the filing of the bill.”

As the plaintiff’s laches is apparent on the face of the bill, the demurrer is good on this ground (Chandler v. Lally, 308 Mass. 41, 44) and we do not reach the issues of want of jurisdiction, adequate legal remedy, want of necessary parties, and failure to state a cause for equitable relief.

There is no allegation of application for relief to the National Railroad Adjustment Board or reason for not applying or for not taking any legal action within the six year period of the statute of limitations. G-. L. c. 260, § 2, as appearing in St. 1948, c. 274, § 1. Ballentine v. Eaton, 297 Mass. 389, 394. It is a necessary inference that the defendant and other employees have changed positions in the interval. See Stewart v. Finkelstone, 206 Mass. 28, 35-37; Norton v. Chioda, 317 Mass. 446, 452, and cases cited.

The interlocutory decree sustaining the demurrer and the final decree dismissing the bill are affirmed with costs of the appeal to the defendant.

So ordered.

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Whittemore, J.

The defendant’s demurrer to the amended bill of complaint asserting wrongful reduction of rank on an employment roster on April 9,1949, and seeking replacement and damages, was properly sustained.

The suit was begun February 5,1958. The amended bill alleges that, in violation of his employment contract and [685]*685pursuant to a ruling of the National Railroad Adjustment Board,¹ after a hearing of which the plaintiff had no notice and at which he was not represented, the defendant placed him at the bottom of the conductors’ roster. It alleges also that the plaintiff “diligently urged” the defendant “to disregard the invalid order” and that he “diligently protested” the defendant’s action but the defendant “has ignored such protest up to the time of the filing of the bill.”

As the plaintiff’s laches is apparent on the face of the bill, the demurrer is good on this ground (Chandler v. Lally, 308 Mass. 41, 44) and we do not reach the issues of want of jurisdiction, adequate legal remedy, want of necessary parties, and failure to state a cause for equitable relief.

There is no allegation of application for relief to the National Railroad Adjustment Board or reason for not applying or for not taking any legal action within the six year period of the statute of limitations. G-. L. c. 260, § 2, as appearing in St. 1948, c. 274, § 1. Ballentine v. Eaton, 297 Mass. 389, 394. It is a necessary inference that the defendant and other employees have changed positions in the interval. See Stewart v. Finkelstone, 206 Mass. 28, 35-37; Norton v. Chioda, 317 Mass. 446, 452, and cases cited.

The interlocutory decree sustaining the demurrer and the final decree dismissing the bill are affirmed with costs of the appeal to the defendant.

So ordered.

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Bluebook (online)

180 N.E.2d 454, 343 Mass. 684, 1962 Mass. LEXIS 866, 49 L.R.R.M. (BNA) 2849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitaker-v-boston-maine-railroad-mass-1962.

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