Carter v. Richart

• Decision Date: 21 November 1916
• Docket Number: No. 9144.,9144.
• Parties: CARTER et al. v. RICHART.
• Court: Indiana Appellate Court

65 Ind.App. 255

114 N.E. 110

CARTER et al.

v.RICHART.

No. 9144.^*

Appellate Court of Indiana, Division No. 1.

Nov. 21, 1916.

Appeal from Superior Court, Marion County; Joseph Collins, Judge.

Action by William T. Richart against Frederick L. Carter and others. From a judgment for plaintiff, defendants appeal. Affirmed.Elam, Fesler & Elam and Howard S. Young, all of Indianapolis, for appellants. White & Jones, of Indianapolis, for appellee.

FELT, J.

This is a suit for damages for the breach of an alleged contract of employment. Issues were formed by a complaint and an answer of general denial. A trial by jury resulted in a verdict for $1,000. Appellants' motion for a new trial was overruled, and judgment rendered on the verdict. Appellants have assigned as error: (1) The overruling of their motion to make the complaint more specific; (2) overruling the motion to stay proceedings until certain costs were paid; (3) overruling the demurrer to the complaint; and (4) overruling the motion for a new trial.

The complaint is in substance as follows: The appellants were partners doing business under the name of Carter, Lee & Co. and engaged in the manufacture of lumber, doors, sash, and other materials, in the city of Indianapolis; that appellee was employed by appellants to operate a ripsaw run by electricity, and while so engaged on August 21, 1911, was injured by reason of appellants' negligent failure to properly guard the saw; that by reason thereof he lost one finger, and two others were seriously injured; that at and prior to such injury he was earning and receiving $15 per week for his labor; that on or about September 1, 1911, appellants recognized their liability for such injury, sent their agent to call upon him, and then and there promised and agreed to pay appellee in full settlement of the damages due him for said injury, the sum of $300, and further promised “to receive him back in their regular employment,” or at such work as he had ability to perform, and pay him for such services the sum of $15 per week “as long as he was able to perform labor”; that as a condition to such agreement appellants required appellee to execute a written instrument releasing them from all liability for damages resulting from said injury; that in pursuance of such agreement and release appellants paid him $300 as a part of the consideration for said release; that the release was delivered and accepted by appellants; that so soon as he had sufficiently recovered from his injuries to be able to work, he called upon appellants and notified them of that fact, and that he was ready to go to work; that appellants refused to give him work, and have ever since refused to employ him, though frequently requested so to do; that when he so notified appellants, and continuously since that time, he was, and had continued to be, able to work, and ready and willing to continue in appellants' employment in pursuance of their agreement aforesaid; that he has performed all the conditions of said agreement by him to be performed, and has been continuously out of work since that time; that he had diligently sought, but been unable, to obtain similar employment; that by reason of appellants' violation of their agreement to give him employment he has suffered and been damaged in the sum of $10,000, for which he demands judgment.

[1] Appellants assert that the complaint is insufficient because the averments do not show that the minds of the parties ever met on the material and essential features of the contract; that its provisions are too indefinite to constitute an enforceable contract.

The complaint is clearly sufficient, under the decisions as against a demurrer for insufficiency of facts. Pa. Co. v. Dolan, 6 Ind. App. 109-114 et seq., 32 N. E. 802, 51 Am. St. Rep. 289;Indianapolis Union Ry. Co. v. Haulihan, 157 Ind. 494-507, 60 N. E. 943, 54 L. R. A. 787;Stewart v. Chicago, etc., Ry. Co., 141 Ind. 55-59, 40 N. E. 67;Beatty v. Coble, 142 Ind. 329-333, 41 N. E. 590;Eisel v. Hayes, 141 Ind. 41-43, 40 N. E. 119.

[2] Appellants also contend that the court committed reversible error in overruling their motion to make the complaint more specific by inserting the name of the person who was the agent of appellants in making the alleged employment agreement. It would have been proper for the trial court to have sustained appellants' motion, but it does not necessarily follow that in overruling such motion the court committed reversible error. If no substantial injury results from the ruling, it is not prejudicial, though technically erroneous.

[3] The complaint must state the cause of action in certain and direct terms, sufficient to fully inform the defendant of what he is called upon to meet, but need not go into an elaboration of details which are not essential to that end. Section 665, Elliott, App. Procedure; P., C., C. & St. L. Ry. Co. v. Simons, 168 Ind. 333-339, 79 N. E. 911;Alleman v. Wheeler, 101 Ind. 141-143;City of Logansport v. Newby, 49 Ind. App. 674-677, 98 N. E. 4;Lewis v. Albertson, 23 Ind. App. 147-151, 53 N. E. 1071;American Fire Ins. Co. v. Sisk, 9 Ind. App. 305-309, 36 N. E. 659;Indiana Stone Co. v. Stewart, 7 Ind. App. 563, 564, 34 N. E. 1019.

Furthermore an examination of the whole record shows that before the institution of this suit appellants were fully advised as to who conducted the negotiations which resulted in the settlement with appellee; that his name was Cherry, and he reported the settlement to them and to the insurance company shortly after he obtained the release from appellee; that appellants received the release and set it up as a defense in a suit for damages for personal injuries brought against them by appellee and dismissed before this suit was begun; that Cherry was present at the trial of this case and testified as a witness; that appellants retained said release and relied upon it as showing full payment of their liability to appellee and as a complete defense to this suit; that there was no dispute in the evidence as to the identity of the person who made the settlement and obtained the release, and the questions involved were as fully and fairly tried out as they could have been had the motion been sustained and the amendment made in conformity with appellants' motion.

In such situation, the ruling, if erroneous, was not prejudicial, and this court would not be warranted in reversing the judgment on account thereof. Sections 400, 407, 700, Burns 1914; Shedd v. American Maize Products Co., 108 N. E. 610-615;Chicago, etc., v. Gorman, 58 Ind. App. 381-391, 106 N. E. 897;National Live Stock Ins. Co. v. Wolfe, 59 Ind. App. 418-425, 106 N. E. 390;First National Bank v. Ransford, 55 Ind. App. 663-668, 104 N. E. 604.

[4][5] Appellants also contend that the court committed reversible error in overruling their motion to stay proceedings in this case until appellee paid the costs of another suit, brought to recover damages for the injury to his hand while in appellants' employment which he had dismissed before commencing this action. This suit is for a breach of an alleged contract to employ appellee, and is therefore a different cause of action from that of the former suit. The trial court evidently concluded that this suit was brought in good faith; that it was not vexatious or without merit.

A stay of proceedings until the payment of costs in a former action generally, if not universally, relates to a second suit based on the same cause of action as the former suit. In any event such stay cannot be obtained as a matter of absolute right, and the request therefor presents a question of sound judicial discretion to be exercised by the court in accordance with the facts and circumstances of each particular case.

Primarily the merits of the former case depended upon appellants' liability for the injury to appellee's hand. The merits of this case do not depend upon that question, for this case proceeds on the theory that the parties had agreed upon a settlement for such liability, and that appellants had violated the agreement by refusing to give appellee employment.

These facts were necessarily before the trial court, and we cannot say there was any abuse of discretion in refusing to stay the proceedings in this case. Kitts v. Willson, 89 Ind. 95-98;Wait v. Westfall, 161 Ind. 648-651, 68 N. E. 271;Citizens' Street Ry. Co. v. Shepherd, 29 Ind. App. 412-414, 62 N. E. 300.

[6] Under their motion for a new trial appellants present the question of the sufficiency of the evidence and alleged error in giving and refusing certain instructions. It is asserted that there was no evidence from which the jury could infer that the person who made the settlement with appellee had any authority to promise him employment, or that appellants knew of such contract, or in any way ratified the same.

The evidence shows that appellants carried liability insurance in the General Accident, Fire & Life Insurance Corporation; that the policy issued to them, among other things, provided that the insurance company should “defend in the name and on behalf of the assured, any suits, *** brought against the assured to recover damages” for personal injuries; that the assured should give written notice with full information to the company, or its agent, and aid in effecting settlements of claims by securing information and furnishing evidence. The evidence also tends to show that appellee's accident was reported by appellants to the insurance company on a blank furnished for that purpose, and that Charles E. Cherry, an agent of the insurance company, negotiated the settlement; that he procured from appellee a release as follows:

“Settlement in Full of claim for Personal Injury.

“I, William T. Richart, hereby admit and acknowledge that there has...