Ferris v. Boston & M. R. R.

• Decision Date: 12 September 1935
• Parties: FERRIS v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 529

197 N.E. 506

FERRIS v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

September 12, 1935

Exceptions from Superior Court, Suffolk County; Donahue Judge.

Action of contract by Frank Ferris against the Boston & Maine Railroad. Verdict ordered for defendant. On exceptions saved by the plaintiff.

Exceptions overruled.

E. T. Doherty, of Boston, for plaintiff.

J. De Courcy, of Boston, for defendant.

QUA Justice.

The plaintiff declares for alleged breach of a contract whereby he had agreed to release the defendant from all claims as a result of an accident in consideration of $200 and the defendant's agreement to ‘ take care of’ the plaintiff, ‘ to do the right thing by him and treat him right until he was able to return to work.’

The plaintiff was injured in the course of his employment by the defendant as a watchman at its Somerville yard. One Bingham, who was employed by the defendant as a claim agent, investigated the case in behalf of the defendant. As the result of an interview at which the plaintiff and the plaintiff's wife and Bingham were present Bingham gave the plaintiff the defendant's draft for $200 and the plaintiff executed a sealed instrument which stated that in consideration of $200 in hand paid, the plaintiff released and forever discharged the defendant ‘ from any and all actions, causes of action, claims and demands, for, upon, or by reason of any damage, loss, injury or cost which heretofore has been, or which hereafter may be sustained by me * * *’ on account of the accident. This paper also contained the following paragraphs: ‘ This settlement is intended to terminate all disputes as to liability by reason of said accident whatever its cause and whatever any injury or damage may prove to be’ and, ‘ This is not a final settlement of this case. This amount paid on account.’ Bingham made out this paper by filling in a prepared form. The paragraph last quoted above was inserted in his handwriting at the time the paper was signed, because as he testified, ‘ it was understood that two hundred dollars was not a settlement of the case.’ Later the defendant offered the plaintiff $500 additional as a final payment but the plaintiff refused it.

There was conflicting testimony as to what was said at the interview when this paper was signed. It is not necessary to state all of it here. The plaintiff testified that he said ‘ I am not going to sign that paper in full-I will sign that off for no two hundred dollars,’ and that Bingham replied ‘ No, no, this is only on account’ ; that the plaintiff refused to sign until Bingham should say ‘ this is not a full settlement,’ and Bingham said ‘ This is not a full settlement, this is on account’ ; that Bingham said, ‘ Don't worry. We always take care of our men and we use them right and fair.’ The plaintiff's wife testified on direct examination that before her husband signed the paper Bingham said ‘ that they would take care of them, see that they were dealt by right and do the right thing by them, that when Ferris was able to go into the office of the Boston & Maine they would see what else they would do for them (the Ferrises) besides the two hundred dollars that he had brought.’ On cross-examination she testified that before the paper was signed Bingham said ‘ he would see what those higher up would do by way of paying something more and that they always treated their employees right and they would do the right thing by them (the Ferrises) and use them square, use them right. Bingham said he would see what the people higher up would do.’

We think on this evidence the jury could have found that Bingham promised that the defendant would pay more than $200 for the release and would pay in addition thereto such sum as should amount in all to fair compensation for the injuries sustained, and that they could also have found that this agreement was a part of the consideration for the release. Brennan v. Employers' Liability Assurance Corp., Ltd., 213 Mass. 365, 100 N.E. 633.

Of course this is not the only possible conclusion, even if the jury believed all of the plaintiff's evidence, and if the issue depended upon the testimony as to the oral conversation alone it would be doubtful whether it could be found to go beyond an assurance of fair intention on the part of the defendant with a willingness to examine into the case further and to do what it might decide to be ‘ right.’ But the plaintiff's case is strengthened by the insertion in the release itself of words which would be inconsistent with the rest of the instrument and could only have the effect of destroying it as a release of the plaintiff's cause of action in tort unless their presence is to be explained on the theory that there was an agreement for a payment in excess of the $200 mentioned. Such an agreement would not be in conflict with the terms of the written instrument (Galvin v. Boston Elevated Railway Co., 180 Mass. 587, 62 N.E. 961) or too vague or indefinite to be enforced. Brennan v. Employer's...