Harvey v. Richmond

• Decision Date: 22 March 1934
• Citation: 173 S.E. 351
• Court: Virginia Supreme Court
• Parties: HARVEY. v. RICHMOND, F. & P. RY. CO.

173 S.E. 351

HARVEY.

v.RICHMOND, F. & P. RY. CO.

Supreme Court of Appeals of Virginia.

March 22, 1934.

Error to Law and Equity Court of City of Richmond, Part 2.

Action by George E. Harvey against Richmond, Fredericksburg & Potomac Railway Company. To review an adverse judgment, plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, and CHINN, JJ.

George E. Allen, of Richmond, and Roscoe Carden, of Victoria, for plaintiff in error.

E. Randolph Williams, Edmund M. Preston and Stephen H. Simes, all of Richmond, for defendant in error.

GREGORY, Justice.

Harvey, who will hereinafter be referred to as the plaintiff, instituted an action at law against the Richmond, Fredericksburg & Potomac Railway Company, which will be referred to as the defendant, alleging a breach of an oral contract whereby he claimed that the defendant agreed to furnish him employment for his life. The case was tried by a jury, and, when the evidence of the plaintiff had been introduced, counsel for the defendant moved that it be excluded. The court sustained the motion, excluded the evidence, and the jury returned a verdict for the defendant upon which the judgment now complained of was entered.

A brief statement of the facts over which there is no controversy follows:

On July 26, 1923, Harvey was, and for some time prior thereto had been, in the em ploy of the defendant as a car repairer earning certain wages. Op that day, while in the performance of the duties assigned him and in the course of his employment, he sustained very serious bodily injuries which necessitated hospital treatment and resulted in incapacitating him for work for a long time. He claimed that the defendant was liable to him for his injuries, and negotiations for a compromise were commenced between him and H. J. Wartham, superintendent of motive power, and U. L. Sweeney, claim agent for the defendant. As a result of these negotiations Harvey executed and delivered to the said agents of the defendant the following agreement of release:

"Know All Men By These Presents, That I, Geo. E. Harvey (hereinafter called the Claimant), for and in consideration of the sum of ($500.00) Five Hundred and 00/100 Dollars lawful money to me paid by the Richmond, Fredericksburg & Potomac Railroad Company, (hereinafter called the Company) at the time of the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has or have remised, released and forever quit-claimed and discharged, and by these presents does or do remise, release and forever quit-claim and discharge unto the said company and its successors, all claims and demands which said claimant, or any person or persons claiming by, through or under said claimant, may have, or may at any time hereafter have, against the said Company or its successors, for, by reason of, or in any manner based upon or growing out of any matter, cause or thing whatsoever, now existing or heretofore occurring, and particularly by reason of personal injury received at or near Boulton Shops, Richmond, Virginia, on or about July 26th, 1923. And the said claimant does or do hereby declare any and all such claims or demands to be, by the payment aforesaid, wholly and forever satisfied and extinguished; it being expressly understood and agreed, however, that the said Company in paying the said sum of money does so by way of compromise of the claims and demands aforesaid, and without prejudice or admitting any liability therefor by itself or its successors.

"Witness the following signature and seal this 12th day of December, Nineteen Hundred and Twenty-three.

"[Signed] Geo. E. Harvey. [Seal.]"

It is claimed by Harvey that at the time of the signing and delivery of the said release the said agents of the defendant orally agreed with him that in addition to $500 which wasthen paid to him that the defendant would pay any and all hospital and doctor's hills which might be necessarily incurred to relieve him of his injuries and to receive him back in the defendant company's employ and continue him therein for the term of his life, give him such work as he was able to perform with reasonable efficiency, and pay him therefor at the same rate of pay at which he was being paid when he sustained his injuries.

Subsequently Harvey was taken back into the defendant company's employ and continued until April 30, 1931, performing such duties as were assigned to him. During that time the defendant paid his hospital and doctor's bills that were made necessary by the injuries he had received.

On April 15, 1931, the defendant notified Harvey that he would not be retained longer than the 30th day of April, 1931, as an employee, and that any hospital or medical expenses incurred after that date by him would not be borne by the defendant This resulted in his discharge from the service on April 30, 1931. A short time thereafter Harvey was restored to his usual health, was examined and passed by one of the physicians of the defendant company and was reported to be in good condition for work. He demanded a continuance of his employment, but the defendant refused to receive him as an employee and refused to pay or become responsible for any hospital or doctor's bills incurred after April 30, 1931.

The present action was founded upon a breach of the alleged oral contract to continue Harvey in the employment of the defendant company for his life and to pay such hospital and doctor's bills as were made necessary by the said injury.

The notice of motion filed in the action contained substantially the facts which have been stated. The defendant company, by its counsel, filed a demurrer and grounds of demurrer, a plea of nonassumpsit, and a plea of not guilty. Later it filed its grounds of defense.

During the progress of the trial the release was introduced in the evidence, and, when Harvey admitted that he had executed it, counsel for the defendant objected to the admission of any parol testimony relating to the oral contract of employment, and moved to exclude that which had been introduced upon the ground that the consideration stated in the release was contractual in its nature and that to admit parol evidence of the oral contract would violate the parol evidence rule which prohibited the introduction of parol testimony to vary, alter, or con tradict the terms of a written contract. The court sustained the objection, rejected the parol evidence for the reasons stated in the motion, and excluded all of the testimony which had been introduced for the plaintiff. This resulted in the verdict and judgment in favor of the defendant.

The assignment of error is directed to the ruling of the court in excluding the evidence offered by the plaintiff and in refusing to set aside the verdict of the jury as contrary to the law and the evidence.

The defendant contends that: "There are two good reasons why, as a matter of law, the plaintiff cannot prevail in the face of the release he has executed; the first, that parol evidence is not admissible to set up the alleged contract; and second, that the agents of the defendant had no authority to make such a contract as that set up by the plaintiff."

The plaintiff contends that the parol evidence should have been admitted, because the written release "was merely a part of a more comprehensive parol agreement, " and therefore the parol evidence rule has no application. He also contends that even if the parol evidence rule does apply and the written release be considered as a contract, parol evidence would be admissible to show the true consideration therefor.

From these respective contentions it is obvious that the sole question presented here is whether or not the plaintiff will be permitted to establish the verbal contract of life employment and its breach by parol testimony in the face of the written release which appears to be complete, and also appears to embrace and merge all subjects agreed upon between the parties; the written release and the alleged oral contract having been made contemporaneously.

Counsel on both sides have strikingly exhibited great industry in gathering the authorities on the subject under consideration. They have filed comprehensive briefs, and no doubt the court can rely with confidence upon the fact that they have furnished a complete and fair review of all of the authorities. We will not undertake to cite or discuss all of the cases which have been relied upon, criticised, or explained, but will content ourselves with a discussion of some of them which we deem in point and sufficient for our purposes.

Counsel for the plaintiff places reliance upon the following Virginia cases as supporting the statement that the parol evidence rule is not applicable where a writingis merely a part of a more comprehensive oral agreement: Brent v. Richards, 43 Va. (2 Grat.) 530; Towner v. Lucas' Ex'r, 54 Va. (13 Grat.) 705; Rector v. Hancock, 127 Va. 108, 102 S. E. 603, and Whitaker & Fowle v. Lane, 128 Va. 349, 104 S. E. 252, 11 A. L. R. 1157.

Generally speaking, where it is apparent from the written contract that it is not a complete integration of all prior and contemporaneous negotiations between the parties which have been agreed upon, parol evidence is admissible to supply those things which were omitted if the part omitted is not inconsistent with the writing but inde-pendent of and in addition to it. In such case no merger has taken place and the written contract cannot be invoked as an estoppel.

In the Brent Case, supra, which was followed and confirmed by the other cases above cited, the plaintiff sold to the defendant a slave, and executed to him a simple bill of sale under seal, but did not incorporate therein a provision for an option to repurchase the slave, that had been previously agreed upon at a certain stipulated sum, in the event the defendant desired to dispose of the slave. The defendant sold the slave to a third party without first offering the plaintiff an opportunity to...