Cline v. Southern Ry. Co, (No. 10392.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HYDRICK
• Citation: 102 S.E. 641
• Parties: CLINE . v. SOUTHERN RY. CO. et al.
• Docket Number: (No. 10392.)
• Decision Date: 30 March 1920

102 S.E. 641

CLINE .
v.
SOUTHERN RY. CO. et al.

(No. 10392.)

Supreme Court of South Carolina.

March 30, 1920.

Appeal from Common Pleas Circuit Court of York County; Ernest Moore, Judge.

Action by D. J. Cline against the Southern Railway Company and another. Prom a judgment for defendants, plaintiff appeals. Affirmed.

See, also, 110 S. C. 534, 96 S. E. 532.

J. Harry Foster, of Rock Hill, for appellant.

McDonald & McDonald, of Winnsboro, for respondents.

HYDRICK, J. On September 30, 1913, Cline was seriously and permanently injured while in the service of defendant as a bridge foreman. He was repairing a coal chute, and one of the bents, which he was trying to get into its place, fell on him and crushed or fractured, and possibly dislocated, some of the vertebra; of his spine. For several months he was under treatment of defendant's surgeons. On the last of December the surgeon who last treated him told him that he had no permanent disability; that he would be well in four or five months, and there was no reason why he should not return to his work.

Accordingly he reported to his superior for duty. In compliance with a rule of the company, he was required to release the company from all liability for damages on account of his injury, as a condition of being accepted back into the service; and on January 5, 1914, on payment to him of $175, he executed

[102 S.E. 642]

such a release, and was given his former position. He remained in the service until the last of April, 1914, when he was displaced by another employe, who claimed his position under a rule of seniority. He was offered a subforeman's place, but declined it.

In May, 1914, ignoring the release, he sued the company for damages for his injury. Besides other defenses, the company pleaded the release in bar of the action. Cline replied to that plea, and alleged that the release was obtained by fraud, to wit, that the company's surgeon misrepresented to him the nature and extent of his injury, and also that the other agents of the company, who induced him to execute the release, did so by falsely and fraudulently promising to give him permanent employment as a bridge foreman so long as his work was satisfactory; that they made said contract, not intending at the time to perform it, but merely for the deceitful purpose of inducing him to execute the release, and thereby of defrauding him of his right of action; that they also falsely, and for like fraudulent purpose, represented to Dim that his rank in seniority amongst his follow employes was such as would entitle him to his position as bridge foreman under the rules of the company; that the contract for permanent employment was the chief consideration which induced him to execute the release. The contract for employment, however, was not mentioned in the release, and the only consideration therein expressed was the payment to Cline of the sum of $175.

That case was tried and resulted in a judgment of nonsuit, which was affirmed by this court, on the ground that Cline's own testimony affirmatively showed that his injury was caused by his own fault, and therefore the company was not liable. 101 S. C. 493, 80 S. E. 17.

Cline then brought this action, setting out in his complaint two causes of action—the first for damages for fraudulent breach of the alleged contract of permanent employment; and the second for damages for the fraud and deceit by which he was induced to make the contract and execute the release. Defendant's demurrer to his complaint and to each of the causes of action therein stated was overruled by this court. 110 S. C. 534, 96 S. E. 532. Defendant then answered, and denied the charges of fraud and the making of...