Baltimore & O. R. Co. v. King

• Decision Date: 16 January 1935
• Docket Number: 88.
• Citation: 176 A. 626,168 Md. 142
• Parties: BALTIMORE & OHIO R. CO. v. KING.
• Court: Maryland Court of Appeals

176 A. 626

168 Md. 142

BALTIMORE & OHIO R. CO. v. KING.

No. 88.

Court of Appeals of Maryland

January 16, 1935

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Action by William H. King against the Baltimore & Ohio Railroad Company, a Maryland corporation. From judgment for plaintiff defendant appeals.

Reversed without new trial.

Argued before BOND, C.J., and URNER, OFFUTT, SLOAN, and MITCHELL JJ.

Wm Preston Lane, Jr., of Hagerstown, and Taylor Morrison, of Cumberland (Joseph D. Mish, of Hagerstown, on the brief), for appellant.

Ellsworth R. Roulette and E. Stuart Bushong, both of Hagerstown, for appellee.

BOND Chief Judge.

The judgment appealed from is one for damages for an alleged breach of an oral contract of the railroad company to employ the plaintiff for life, in consideration of his forbearance to sue on a claim for damages from injuries sustained in the year 1909; and the questions arise from a refusal of the trial court to direct a verdict for the defendant.

The plaintiff offered evidence tending to prove that he lost his left arm by having it run over on falling from a moving car, while he was employed as a brakeman. Whether he was at the time engaged in interstate commerce, so that his case would come within the provisions of the Federal Employers' Liability Act of 1908 (see 45 USCA §§ 51-59), cannot be determined from anything in the record. Releases offered in evidence were not attacked on the ground that the Federal Act did apply. See USCA tit. 45, § 55; Philadelphia, B. & W. R. R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911. He was taken first to the Emergency Hospital in Brunswick, and then to a hospital in Baltimore, and remained in the latter hospital until some time in April, 1909. On May 1, he went to work again at a job as switchman.

He was a member of the Employees' Relief Association maintained by this company, by virtue of which he was entitled to compensation for injury irrespective of any question of negligence or common-law liability (see Spitze v. B. & O. R. R. Co., 75 Md. 162, 23 A. 307, 32 Am. St. Rep. 378), and in his application for membership, in 1906, had agreed that in consideration of the company's contributions to the association or department, and its guarantee of benefits for injury or death, his acceptance of benefits should operate as a release of all claims against the company for damages by reason of such injury or death, and agreed to perform all acts deemed appropriate or necessary to effect the full release and discharge of the company. And in accordance with the regulations of the relief department, the company paid his hospital, surgical, and medical expenses from his injury in 1909, paid him benefits for the three months, February, March, and April, and bought him an artificial arm. One of the benefit payments, he testified, was paid him while he was still in the hospital, and the others subsequently. A full release and discharge was signed upon each such payment. But he testified that while he was still in the hospital in Baltimore, he was told by some one to go to the general manager's office there, that on asking his way at the main office building of the company, on a day not specified, he was directed to an office, the door of which bore the title of general manager, that there he met an official who, he was told, was Arthur W. Thompson, now dead, and who urged him not to employ an attorney or enter suit against the company for damages, and said, "We are going to give you a job for life if you listen to me; there is something you can have at Baltimore or at Washington, as switchman, lots of jobs. * * * Leave the attorneys go, listen to me and you will have a job. When you get out you will have a job." Passes over the road for himself and for his wife when he might marry were also promised him, he said, and he added that he did subsequently receive passes over a greater extent of the lines of the company than he would have been entitled to receive as an employee under the company's general regulations.

When shown releases signed at or about the dates of the checks for benefits, the earliest dated March 16, 1909, he first denied the signatures to them, but later admitted them, asserting, however, that he signed no release, and suggesting that these releases shown him may have been signed under other papers. His statement is not entirely clear, perhaps, but in some answers he appears to suggest that the releases may have been signed by means of carbons under papers he meant to sign. The releaso, he said, "might have been underneath some papers that I signed"; "I didn't sign it open like that"; "that is my name and I signed in that way." And in response to a final question by the court, confining his attention to the signature on each release, he said, "That is my name and I wrote that."

The plaintiff remained at work, in the employ of the railroad company for the succeeding twenty-two years, with one interruption. After his recovery, he was employed as a switchman in the Brunswick yard from May 1, 1909, until some time in 1915, when the job was discontinued, was "on call" or a "caller" for two or three months then returned to work as switchman at Brunswick, until September, 1931, when the job was finally abolished; and he testified that he has not since been able to find any position with the railroad company or any one else by which he could make a living, except that he had five days' work with the company in December, 1931. He acknowledged, however, that upon the abolition of the switchman's position he was offered another job at pay equal to that of switchmen in pushing buttons to direct cars on different tracks in the yard, and that this job required no physical exertion, but he had refused it, he said, on account of his...