Toni v. Kingan & Co.

• Decision Date: 31 May 1938
• Docket Number: 27016.
• Citation: 15 N.E.2d 80,214 Ind. 611
• Court: Indiana Supreme Court
• Parties: TONI v. KINGAN & CO.

15 N.E.2d 80

214 Ind. 611

TONI v. KINGAN & CO.

No. 27016.

Supreme Court of Indiana

May 31, 1938

Appeal from Hendricks Circuit Court; A. J. Stevenson, Judge.

L Russell Newgent and Wm. B. Miller, both of Indianapolis, for appellant.

Dailey & O'Neal, of Indianapolis, Edgar M. Blessing, of Danville, and Robt. A. Efroymson, of Indianapolis, for appellee.

HUGHES Chief Justice.

This is an action by the appellant, plaintiff below, against the appellee, defendant below, based upon three paragraphs of complaint which allege in substance that the appellant was employed by the appellee in 1909 and continued in said employment until June 13, 1931; that on November 23, 1915 while in the employment of appellee and in due course of his duties he was negligently and carelessly injured by another employee of the appellee, causing appellant to become a permanent cripple; that he was crippled in his right leg and it was necessary to have the knee cap removed from said leg on November 25, 1923.

It is averred that as a result of said injuries the appellee became liable to the appellant for damages or compensation and that in consideration of the appellant waiving all claims for compensation or damages for said injuries and as a settlement and a compromise thereof the appellee did on or about the 17th day of January, 1917 promise and agree to give plaintiff a permanent job with defendant at work plaintiff could do in his crippled condition in its Indianapolis plant during plaintiff's life at his then average wages which were approximately $24.00 per week and that as a result of said agreement and by reason thereof the defendant became duly bound to furnish plaintiff with work at said wage during plaintiff's life.

It is further averred that the agreement was made by the appellee acting by and through its Treasurer, one Robert Sinclair who at said time with other officials of defendant was in charge of the management of the said business of defendant at its Indianapolis plant; that said appellee acted upon said agreement so negotiated by keeping plaintiff in its employ until long after the expiration of the statute of limitation had run against plaintiff to sue for said injuries; that the appellee company received the benefit of said agreement of settlement by reason of not paying compensation or damages to plaintiff; that the appellant acted upon said agreement and did not make any claim to appellee for damages or compensation and waived said claim for damages or compensation and that he entered upon said employment at said time under the terms of said agreement and did work for the appellee and in all things fully complied with said agreement and continued in appellees employment until the 13th day of June, 1931, at which time the appellee without cause wrongfully breached said agreement by discharging said appellant from its employment.

The appellant further alleges that at the time of making said agreement he signed, executed, and delivered to the appellee a release then and there releasing appellee from all liability in connection with said injuries sustained by him.

The second and third paragraphs of complaint are somewhat different in their allegations, but the substance is the same as the first.

The appellee filed an answer in general denial and several affirmative paragraphs to the effect that the contract had been rescinded, abandoned, and terminated; that the same was an indefinite contract and terminable at will; that no official of Kingan & Company had authority to make contracts of this nature; that the action did not accrue within six years and was barred by the statute of limitations and that the contract had been abandoned and abrogated.

It appears from the trial of said cause the appellant offered evidence to sustain the allegations of his complaint but the court refused to permit certain evidence to be introduced and the appellant being unable on account of the ruling of the court to introduce certain evidence rested his case and upon motion of the appellee the jury was instructed to return a verdict for the appellee. The jury pursuant to said instruction returned a verdict for appellee and judgment was rendered thereon.

The error relied upon for reversal is the overruling of appellant's motion for a new trial.

The reasons assigned in the motion for a new trial are as follows:

(1) The court erred in sustaining the objections of the defendant to the following question propounded to the plaintiff with reference to a statement made by Robert Sinclair, President and one of the managers of Kingan & Company, in reference to contract sued upon, towit:

'Q. What did Mr. Robert Sinclair say to you?

'Mr. Dailey: To which we object for the reason it hasn't been shown by any evidence that Robert Sinclair had the power or authority to make the contract sued on in behalf of Kingan and Company or to bind the company by what he said or did in the matter inquired about and the agency has not been proved. There is no proof offered that the agreement sued on in this case was in writing; therefore, it is precluded by the Statute of Frauds of the State. There is no proof offered and no pleading on file to show that any contract in this case was in writing or that in any form, verbal or in writing, it was approved by the Indiana Industrial Board nor that it was submitted to the Indiana Industrial Board for approval, therefore, the contract sued upon in the complaint in this case is illegal and unenforcible and void. We object for the further reason that the question seeks to elicit evidence of an illegal opinion and one forbidden by law; that it is in direct violation of the Workmen's Compensation Act.

'Mr. Newgent: The plaintiff now offers to prove that Mr. Robert Sinclair, President of the Defendant Company, at the time, on behalf of the Company, defendant herein, promised and agreed with the plaintiff that said defendant would give the plaintiff lifetime employment, or permanent employment, under his present wage scale at that time of approximately $24.00 per week, all of which was in consideration of the plaintiff waiving his claim against the defendant for compensation of damages by reason of the injury.'

'The Court. Objection Sustained.'

(2) That the court erred in sustaining the objection of the defendant to plaintiff's offer to introduce plaintiff's Exhibits 1 and 2, stipulated by the parties to be authentic copies of a paper executed by the plaintiff and delivered to the defendant and filed with the Industrial Board, having reference to plaintiff's injuries, said stipulation, offer and objections and rulings, and exceptions are as follows: We will not set out these exhibits for the reason which will be stated in the opinion.

(4) The fourth reason is that the court erred in refusing to permit the plaintiff, Alex Toni, to testify as to the substance of the conversation had by and between the plaintiff and Robert Sinclair, an officer and manager of the defendant company on or about December, 1917, with reference to plaintiff's furture employment and his claim for damages and compensation; said question so propounded to the plaintiff, the objections thereto, the offer to prove and ruling of the court and exceptions thereto are as follows:

'Q. What if anything was said?

'Mr. Dailey: To which we object for the reason it hasn't been shown by any evidence that Robert Sinclair had the power or authority to make the contract sued on in behalf of Kingan and Company or to bind the company by what he said or did in the matter inquired about, and agency has not been proved. There is no proof offered that the agreement sued on in this case was in writing; therefore, it is precluded by the Statute of Frauds of the State. There is no proof offered and no pleading on file to show that any contract in this case was in writing or that in any form, verbal or in writing, it was approved by the Indiana Industrial Board for approval, therefore, the contract sued upon in the complaint in this case is illegal and unenforceable and void. We object for the further reason that the question seeks to elicit evidence of an illegal opinion and one forbidden by law; that it is in direct violation of the Workmen's Compensation Act. We object for the further reason that the plaintiff's counsel has stated that this agreement made on December 17, 1917, was the part of the settlement in which a promise was made by the defendant for permanent employment or lifetime employment; that this was more than two years after the alleged injury and that a promise made after the two years statute of limitation had run is wholly without consideration and unenforceable. We object for the further reason that the question now calls for a conclusion and an opinion.'

'Mr. Newgent: Plaintiff offers to prove that in this conversation it was agreed by and between the defendant, through its officer and manager, Robert Sinclair, with this plaintiff that in consideration of the plaintiff waiving his claim for damages or compensation that the defendant would give the plaintiff permanent employment in its Indianapolis plant at a wage of approximately $24.00 a week during his entire life and that in that conversation the plaintiff agreed to and did rely and act upon the agreement so made and did not present any claim for damages and has not presented any claim for damages by reason of said injury, prior or hereto, by reason of said agreement.

'The Court: Objection sustained.'

(5) The fifth reason assigned is that the court in refusing to permit the plaintiff, Alex Toni, to establish the contract sued upon made with the defendant company as alleged in the complaint to which rulings the plaintiff excepted, and at the close of such ruling the plaintiff made...