American Quarries Co. v. Lay

• Decision Date: 21 February 1905
• Docket Number: No. 5,009.,5,009.
• Citation: 37 Ind.App. 386,73 N.E. 608
• Parties: AMERICAN QUARRIES CO. v. LAY.
• Court: Indiana Appellate Court

37 Ind.App. 386

73 N.E. 608

AMERICAN QUARRIES CO.

v.LAY.

No. 5,009.¹

Appellate Court of Indiana, Division No. 2.

Feb. 21, 1905.

Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.

Action by James Lay against the American Quarries Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.J. H. Underwood, for appellant. J. H. Edwards and H. P. Pearson, for appellee.

ROBY, J.

Appellee's amended complaint was in three paragraphs, to each of which appellant's demurrer for want of facts was overruled. The issue was closed by a general denial, trial by jury had, a verdict returned for $4,500, appellant's motion for a new trial overruled, and judgment rendered on the verdict, from which this appeal is taken.

The errors assigned question the action of the court in overruling the demurrers and in overruling the motion for a new trial.

The first and second paragraphs of the amended complaint are founded upon a written instrument which is filed as an exhibit, and which is in terms as follows:

“In consideration of the sum of regular wages during disability at $1.25 per each working day, necessary nurse hire, and all doctor bills resulting from present disability, and employment when recovered, to me in hand paid by the American Quarries Company at their regular pay days, I do hereby release and forever discharge said American Quarries Company from any and all actions, causes of actions, claims and demand for, upon or by reason of any damages, loss or injury, which heretofore have been or which hereafter may be sustained by me in consequence of the accident occurring to me on March 12, 1902, by which my right leg was broken below the knee.

“It being further agreed and understood that the payment of said sums are not to be construed as an admission on the part of said American Quarries Company of any liability whatever in consequence of said accident.

“In witness whereof, I have hereunto set my hand and seal the 15th day of March eighteen hundred and ninety-two (1902.)

“Signed and sealed in the presence of

“William C. Fultz. [Seal.]

“F. F. Storer. [Seal.]

“James Lay. [Seal.]

“State of Indiana, Lawrence County-ss.: Before me, John R. Andrews, a notary public in and for said County and State, this 15th day of March 1902 personally appeared James Lay who acknowledged the execution of the annexed release.

“Witness my hand and notarial seal. John R. Andrews, Notary Public, Com. expires Dec. 8, 1902. [Notarial Seal.]”

It is alleged in connection therewith that appellant was a corporation engaged in operating a stone quarry in Lawrence county; that appellee on March 12, 1902, while in its employment as a laborer at $1.25 per day, was injured by the explosion of a blast; that on the 15th day of said month he entered into said contract by which he released appellant from all claims and demands arising out of his said injury, and that he has performed all the conditions of said contract on his part; that it was signed on behalf of appellant by its superintendent in charge of its business in said county, executed and acknowledged before a notary public, received, accepted, and ratified by appellant, who now has possession of the same, and has, pursuant to its terms, paid the nurse hire and doctor's bill, and $1.25 per working day above mentioned, to appellee, up to May 5, 1902; that it failed and refused to further comply with the terms of said contract upon its part; that from May 5th to May 22d there was due and payable to him the sum of $16.50, of which sum appellant paid $8.75, leaving due the sum of $7.75, which he demanded at its office on said day, the same being its regular pay day, and that it has repudiated said contract, and notified appellee that it will not be in any manner bound thereby; that since said injury appellee has been wholly unable, on account of his physical condition due thereto, to perform any labor or earn any money, and has not recovered from the effects of said injury, but is wholly disabled and unable to perform any labor, is permanently crippled and injured for life, and is an object of charity; and that he will be wholly unable to earn a livelihood during the remainder of his life. Wherefore, etc. The third paragraph of the pleading differs only in that the contract is not averred to have been in writing. The objection urged to it which does not apply to the others is that the contract therein set up is within the statute of frauds. Section 6629, subd. 5, Burns' Ann. St. 1901. If the premise that the contract was not to be performed within a year from the making thereof were granted, the conclusion would follow; but the contract was personal in character, and might have terminated within a year through the death of appellee, and was not, therefore, within the statute. Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 118, 32 N. E. 802, 51 Am. St. Rep. 289;Hinkle v. Fisher, 104 Ind. 84, 3 N. E. 624;Durham v. Hiatt, 127 Ind. 515, 26 N. E. 401. The writing above set out, upon which the first and second paragraphs of complaint depend, does not contain an express promise in terms on appellant's part to pay appellee $1.25 per each working day, necessary nurse hire, and all doctor's bills, resulting from present disability, and to give him employment when recovered; but it does contain a release on his part of any right against appellant growing out of the injury suffered by him while in its service, such release being made in consideration of those things. It was not signed by appellant, but it was signed by appellee, and, as alleged, acted upon by it. It therefore became obligatory upon both. Alcorn v. Morgan, 77 Ind. 184, 186;Munson v. Wray, 7 Blackf. 403;Stewart v. Chicago, etc., 141 Ind. 55, 40 N. E. 67;Indianapolis, etc., v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787. The acceptance of the release implied an accession to its terms, thereby creating a contract as binding as those signed by both parties. Adams Express Co. v. Carnahan, 29 Ind. App. 606, 610, 63 N. E. 245, 64 N. E. 647, 94 Am. St. Rep. 279;Street v. Chapman, 29 Ind. 142;Chicago, etc., v. Derkes, 103 Ind. 520, 3 N. E. 239;Leach v. Rains, 149 Ind. 152, 157, 48 N. E. 858. In Pennsylvania Co. v. Dolan, supra, a release from liability for personal injuries had been obtained from the appellee upon the consideration of $100 and steady and permanent employment. It was contended that the agreement lacked mutuality. In the course of the opinion written by Judge Reinhard, it was said: “Suppose that, instead of the release executed by appellee, he had paid appellant $500 in cash, in consideration of which the latter had agreed to employ the former as a flagman in its yards during his life at the rate of $2 per day. Could it be held that the want of mutuality would entitle the appellant to keep the $500, and, after a few months of employment, and without any fault on his...