
    Marquart v. Baltimore & Ohio Rd. Co.
    (Decided April 20, 1934.)
    
      Mr. Ray F. Spears, for plaintiff.
    
      Messrs. King, Flynn & Frohman, for defendant.
   Richards, J.

C. Y. Marquart commenced an action in the Court of Common Pleas to require the defendant railroad company to place his name on its pension list and issue monthly payments to him during his life, and asking that the court direct judgment in his favor for the back payments of pension, and for other equitable relief. The trial in the Court of Common Pleas resulted in a judgment and decree for the defendant, dismissing the plaintiff’s petition. Prom that judgment the plaintiff prosecutes both appeal and error.

Disposition may easily be made of the appeal case. The journal entry showing the rendition of final judgment was journalized on December 18, 1933, and if the case is appealable appeal could have been taken therefrom at once. The fact that a motion for new trial was filed, and another final judgment rendered thereafter when that motion was overruled, would not prolong the time within which an appeal could be taken. The appeal bond was not filed until January 22, 1934, which is beyond the statutory time within which an appeal may be taken, and the appeal, therefore, should be dismissed.

The bill of exceptions sets forth all of the evidence, and is very voluminous, but the controlling facts are not seriously in controversy. Marquart became an employee of the defendant company in the year 1873, and continued as such employee nearly all the time until 1921, a period of approximately 48 years. After being employed, he became a member of the relief department of the company, and pursuant to the provisions governing members of that department deductions were made monthly from his salary, which were paid into that department, covering the amount of his payments, the total amount so applied being $2,742.68.

Marquart was advanced from time to time until he became foreman in the inspection yard of the company at Sandusky, but for some reason, not clearly explained in the record, he was not in the company’s employ for about a year beginning some time during the year 1909. Later on he was again in the employ of the company, but was not made foreman. In the year 1920 a man by the name of Hannon was made foreman and was the immediate superior of this plaintiff, who appears to have believed that he himself should have been foreman. The plaintiff and Hannon did not agree as to the method in which the work should be performed, and in 1921 Marquart commenced an action in the Court of Common Pleas of this county to secure an injunction against Hannon to prevent his interfering with the duties which Marquart claimed he was to perform. A temporary injunction was granted in that case, but on hearing was later dissolved by the court and the petition dismissed. That injunction suit naturally met with the disapproval of the company, as it plainly tended to injure the morale of its employees. It was much the same as if the principal of a public school had brought an action against the school superintendent to prevent the superintendent from interfering with the principal in the performance of his duties. Shortly thereafter an investigation of the facts was made by the company, and thereupon Marquart was dismissed from his employment for insubordination, and all his relations with the company were severed. When Marquart became 65 years of age in 1919, and was entitled to retire, he said nothing about a pension, nor about retiring, but continued in his employment with the company. Some time after the discharge, he demanded of the company that he be granted a pension, or, in lieu thereof, that the company repay him the sum which had been paid into the relief fund on his behalf. It does not require much consideration to determine that he was not entitled to have the money refunded to him. 'All the time that he remained a member of tbe relief department he bad been protected by tbe company, under tbe provisions of tbe relief department. He was no more entitled to the return of the amount paid in than be would have been entitled to have an insurance company, which carried a policy of insurance on bis home, refund to him tbe amount which be bad paid for insurance, because tbe building bad not burned during tbe life of tbe policy.

This action was not commenced until November 25, 1929, and tbe plaintiff claims to be entitled to be placed on tbe pension roll of tbe railroad company and also to recover numerous back payments which be asserts should have been made to him as a pensioner. Rule 100 of the defendant company, governing tbe relief department and determining tbe qualifications of those who should be entitled to pensions, provides that it is for tbe support of those who are members of tbe “relief feature or of tbe Baltimore & Ohio employes relief association” and who have served the company for ten consecutive years and have reached tbe age of 65 and shall be honorably relieved from duty.

Tbe plaintiff cannot qualify under these provisions, for as early as the summer of 1919 be refused to pay or permit tbe payment in bis behalf of tbe amounts due from him to tbe relief association, and thereby ceased to remain a member thereof. In addition to this, tbe benefits of tbe pension feature are only for those who have been honorably relieved from duty, whereas tbe plaintiff, after a bearing, was discharged for insubordination.

It may be noted that the plaintiff does not appear by the record to have exhausted bis remedy provided by tbe rules of tbe company for the settlement of controversies between employees and the company as contemplated by Baltimore & Ohio Rd. Co. v. Stankard, 56 Ohio St., 224, 46 N. E., 577, 60 Am. St. Rep., 745, 49 L. R. A., 381.

For the reasons given the appeal ease will be dismissed, and the judgment in the error case will be affirmed.

Appeal dismissed. Judgment affirmed.

Williams and Lloyd, JJ., concur.  