American Telephone & Telegraph Company v. Green
| Decision Date | 10 March 1905 |
| Docket Number | 20,524 |
| Citation | 73 N.E. 707,164 Ind. 349 |
| Court | Indiana Supreme Court |
| Parties | American Telephone & Telegraph Company v. Green |
From Porter Circuit Court; Willis C. McMahan, Judge.
Action by John H. Green against the American Telephone & Telegraph Company. From a judgment for plaintiff for $ 5,000 defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
Johnston Bartholomew & Bartholomew, for appellant.
N. L. Agnew and Henry E. Cutler, for appellee.
Appellee brought this action for damages, for the breach of a contract between the appellant and appellee, by the terms of which appellant agreed to pay to him his wages, doctor bills and expenses until he was able to go to work after his recovery from an injury received because of appellant's negligence while in its employ. In consideration for this agreement appellee executed a release relinquishing all claims against appellant for damages for his said injury. A trial by jury resulted in a verdict for appellee. Appellant's motion for a new trial was overruled, and an exception properly saved, and judgment rendered on the verdict.
The assignment of errors calls in question only the ruling on the motion for a new trial. The grounds of the motion for a new trial were that the verdict is not sustained by sufficient evidence and is contrary to law, and error in excluding certain items of evidence offered.
The facts shown by the evidence immediately connected with the points controverted on this appeal are, in substance, as follows: Appellee was forty-four years of age at the time of the trial, and went to work for the appellant in 1895. He was employed in stringing wires, taking out old poles, taking off and putting on cross-arms, putting on guys, cutting off and lowering poles, and all kinds of work incident to the erection and repair of telegraph and telephone lines. He continued in the employ of the appellant until the 11th day of January, 1902, when he fell from the top of a pole by reason of the breaking of a body belt, from which fall he received a fracture of the right thigh and right arm, resulting in a permanent disability. Daniel P. Tice was the district foreman of the appellant, and stationed at Chicago, and as such had the oversight of several gangs of men--one in Illinois, one in Indiana and one in Wisconsin. He employed the appellee to work for the appellant, and went with him up into Wisconsin to the work in which appellee was engaged at the time of his injury, near Sylvania. Appellee was hurt about 5 o'clock on Saturday evening, and, on the following Monday, Tice, having learned of his injury, came out from Chicago, and on behalf of appellant took charge of him, employed an additional surgeon, and paid for his board and for an attendant for seven weeks and four days. About the first of March appellee signified his desire to be taken to his home at Hobart, Indiana, and Tice came and accompanied him, and paid all of his expenses of transportation. Appellant paid all of appellee's doctor bills, as well as board and charges for nursing while he remained in Wisconsin; in all amounting to about $ 580. Appellee was receiving $ 40 per month and expenses at the time of receiving his said injury. On the 22d day of March, 1902, Tice visited appellee at his home for the purpose of securing his signature to a release, the blank form of which he took with him from Chicago, having received the same from appellant's superintendent Bell. He obtained the signature of appellee to the release, and immediately thereafter paid him $ 81, $ 40 being for the month of February and $ 40 for the month of March and $ 1 for the special consideration named in the release. Appellant afterwards paid appellee $ 60, $ 30 being for the month of April and $ 30 for the month of May, but thereafter refused to pay him any further sums, or to comply with the terms of the contract upon which appellee claims the release was obtained. Tice's general orders were to hire and discharge men, to pay them, pay boards bills at the end of each month, prepare each man's salary voucher, see that the employes did their work right, and that they paid their board bills. If any employe did not do his work right, Tice had authority to discharge him at once. His duties were to inspect and ascertain the condition of lines, and see that the linemen keep them in repair, look for weak poles and cross-arms, determine when a line needed overhauling, and to make estimates of the cost of repairs. He had general supervision and oversight of the employes in his district. It was a part of his duties, under special instructions from the company, to settle a damage suit resulting from injury to an employe. His authority and instructions from the company were not usually in writing. He received the blank form of release from W. E. Bell, appellant's district superintendent in the city of Chicago and at the office of the company; and his instructions were to visit appellee and procure his signature to the release and return it to the company. He obtained the release, as appellee and his wife testified, by the promise on behalf of the company that it would pay appellee his usual wages, doctor bills and expenses until such time as he was able to resume his work. He executed the release, his wife attesting the same, and Mr. Tice transmitted it by mail to W. E. Bell, district superintendent, and at the time of the trial it was still retained by appellant. The release is in words and figures following:
Appellant insists that the trial court erred in sustaining appellee's objection to each of the following questions: "Mr. Tice, you may state whether or not you had any authority from the defendant to enter into a contract with the plaintiff whereby the company would be bound, or to bind the company to pay the plaintiff $ 40 a month until he had recovered from the injury?" and, "What was your authority from the company--what authority did you have?" In sustaining appellee's objection to each of these questions, the court at the time indicated that he did so solely because of the form of the question, and stated to the appellant at the time of making his ruling that he did not refuse to allow appellant to prove by the witness, in response to these questions or to any other proper question, any directions given to him by the company or his superior officers. Appellant rested its whole defense upon the want to authority in Tice to make the contract relied on by appellee. The question whether Tice was authorized by appellant to make said contract was the real issue, and the ultimate fact to be determined by the jury. The general rule is that witnesses must testify to facts, and not to opinions. They must state facts only, and not draw conclusions or inferences. It is not proper to allow one who is not an expert to express an opinion in any case upon a question with relation to which all the facts may be placed before the jury; and to receive as evidence the opinion of a lay witness upon the precise issue submitted for trial in such case would permit the witness to usurp the province of the court or jury trying the cause. Evansville, etc., R. Co. v. Fitzpatrick (1858), 10 Ind. 120; Loshbaugh v. Birdsell (1883), 90 Ind. 466; Delliman v. Crooks (1883), 91 Ind. 158; Yost v. Conroy (1883), 92 Ind. 464, 47 Am. Rep. 156; Indiana, etc., R. Co. v. Hale (1884), 93 Ind. 79; Thompson v. Deprez (1884), 96 Ind. 67; Stephenson v. State (1887), 110 Ind. 358, 59 Am. Rep. 216, 11 N.E. 360; Hughes v. Beggs (1888), 114 Ind. 427, 16 N.E. 817; Brunker v. Cummins (1892), 133 Ind. 443, 32 N.E. 732; Hamrick v. State, ex rel. (1893), 134 Ind. 324, 34 N.E. 3; Johnson v. Anderson (1896), 143 Ind. 493, 42 N.E. 815; Sievers v. Peters Box, etc., Co. (1898), 151 Ind. 642, 50 N.E. 877; Brackney v. Fogle (1901), 156 Ind. 535, 60 N.E. 303.
The facts exhibiting what authority appellant expressly conferred upon Tice, and whether it authorized him to make the agreement in suit,...
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