ROBERTS v. WESTERN PAC CO

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District Court of Appeal, First District, Division 2, California.

ROBERTS v. WESTERN PAC. R. CO. et al.

Civ. 14631.

Decided: June 19, 1951

S. Roberts, in pro. per. Leo Fried, San Francisco, for respondent.

This is an appeal from an order of the trial court dismissing the complaint of the plaintiff after having sustained the demurrer of defendants James and Hatfield without leave to amend. The complaint is the same complaint as the one involved in the appeal of plaintiff from the judgment in favor of defendant Western Pacific Railroad Co., No. 14673, Cal.App., 232 P.2d 560, and we refer to the opinion in the case, this day filed, for a summary of the allegations of the complaint.

In view of what we have decided in case No. 14673, we believe that the ruling of the trial court sustaining respondents' demurrer without leave to amend was correct insofar as the complaint seeks relief for reinstatement to his former position and declaratory relief as to the interpretation of the collective bargaining agreement, but that under the case of Moore v. Illinois Cent. R. R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, the court erred in sustaining the demurrer without leave to amend insofar as the asserted cause of action for damages for wrongful discharge is concerned. While the complaint, evidently drawn by plaintiff who is not a lawyer, is inartificially drawn, and no doubt subject to special demurrer, yet as against a general demurrer, a ruling sustaining such a demurrer without leave to amend cannot be upheld.

In view of the foregoing the order of the trial court dismissing the complaint is affirmed insofar as it relates to plaintiff's asserted cause of action for reinstatement and declaratory relief and reversed insofar as it relates to plaintiff's asserted cause of action for damages for breach of contract.

SCHOTTKY, Justice pro tem.

NOURSE, P. J., and GOODELL, J., concur.