Health v. Potlatch Lumber Co.

• Decision Date: 09 April 1910
• Citation: 108 P. 343,18 Idaho 42
• Parties: FRANK S. HEALTH, Respondent, v. POTLATCH LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

108 P. 343

18 Idaho 42

FRANK S. HEALTH, Respondent, v. POTLATCH LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 9, 1910

SUFFICIENCY OF EVIDENCE-COMPROMISE AGREEMENT-AUTHORITY TO MAKE-CONSIDERATION-AMENDMENT OF PLEADING.

(Syllabus by the court.)

1. Evidence examined and held to support the verdict of the jury.

2. Whether an assistant general manager of a lumber company, in charge of the operation of the company's plant, has authority to make a contract with an injured employee in compromise of damages claimed by such employee, is immaterial if such company ratifies the acts of the assistant general manager in making such compromise agreement, and makes payments in accordance with the terms thereof.

3. Where a claim is made against another in good faith, and the latter denies its liability, and to avoid a lawsuit agrees to pay such claim in consideration that suit will not be brought upon such claim, there is a sufficient consideration to support such compromise agreement.

4. There is sufficient consideration to support a compromise agreement if the claim is made in good faith and is disputed and in consideration that the claimant forbears to sue in respect to such claim, a promise is made to pay a certain sum of money, and such promise may be enforced in an action at law.

5. It is not error for the trial court to refuse a proffered amendment after the evidence has been concluded, where there is no evidence to support the allegations of such proposed amendment.

6. Where a check is given as a partial payment in accordance with a compromise agreement, the fact that the person giving such check incorporates therein language releasing the payor for all claims and damages, will not operate to release the promisor from complying with the compromise agreement, unless it clearly appears that it was the intention of both parties that such check should be in full payment of all claims and demands whatsoever.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

An action to recover upon a compromise agreement. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Geo. M Ferris, James E. Babb, and A. H. Featherstone, for Appellant.

The defendant cannot be held liable in damages because one of its employees, a managing officer, advises an injured man to go to a hospital to effect a cure and later promises the injured man that the company will pay him wages until he is cured if he will not sue for damages growing out of the assistant manager's poor judgment in recommending a doctor. This was outside the duty of Mr. Laird, and he had no authority to bind his principal. (Bohanan v. Boston Main Ry., 70 N.H. 526, 49 A. 103; Backman v. Charlestown, 42 N.H 125-131; Flander v. Putney, 58 N.H. 358; Hayes v. Colby, 65 N.H. 192, 18 A. 251; Maxson v. Michigan Cent. Ry. Co., 117 Mich. 218, 75 N.W. 459; Delta Lumber Co. v. Williams, 43 Mich. 86, 40 N.W. 940; Nephew v. Michigan Cent. Ry. Co., 128 Mich. 599, 87 N.W. 753; Gamacho v. Engraving Co., 14 Misc. 586, 37 N.Y.S. 725; Chase v. Swift, 60 Neb. 696, 83 Am. St. 552, 84 N.W. 86; Demars v. Musser Sauntry Co., 37 Minn. 418, 35 N.W. 1.)

Defendant's Exhibit "F," the check with release clause attached, cashed by the plaintiff, has two purposes in the case. It tends to show that there was no agreement of compromise and that the plaintiff's claim was unliquidated. He does not claim fraud or surprise or even mistake, and he is, therefore, bound by his release. (Webber v. Board of Commrs., 93 Minn. 320, 101 N.W. 296; Hillestad v. Lee, 91 Minn. 335, 97 N.W. 1055; Nassoiy v. Tomlinson, 48 N.Y. 326, 51 Am. St. 695, 42 N.E. 715; Treat v. Price, 47 Neb. 875, 66 N.W. 834; Chicago Ry. Co. v. Buckstaff, 65 Neb. 334, 91 N.W. 426.)

Wm. E. Stillinger, and Forney & Moore, for Respondent.

The compromise of a bona fide dispute or controversy constitutes a good consideration for a promise, and such consideration cannot be destroyed or the promise revoked by showing that the promisee in fact had no claim. (Vane v. Towle, 5 Idaho 471, 50 P. 1004; McGlynn v. Scott, 4 N.D. 18, 58 N.W. 460; Whelpley v. Stoughton, 112 Mich. 594, 70 N.W. 1098; Smith v. Farra, 21 Ore. 395, 28 P. 241, 20 L. R. A. 115; Morgan v. Hodges, 89 Mich. 404, 50 N.W. 876, 15 L. R. A. 438; Beach on Contracts, sec. 174 et seq.; 8 Cyc. 509.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

The appellant, a corporation, was engaged in the operation of a sawmill and a lumber manufacturing plant in the town of Potlatch, in Latah county, state of Idaho. The respondent was employed by the appellant as a barn man and engaged in feeding and taking care of the appellant's stock and cleaning and caring for the barns and stables where such stock was kept. On June 22, 1907, and while the respondent was in the employ of the appellant, he was called to assist one Ira George, a department manager of the business of the appellant, who as such had control and management of all stables, barns, horses, teams, wagons, etc., used by the appellant, in raising and assisting a sick horse to his feet; it appears that the horse was lying on his side in a box-stall located in one of the barns of the appellant, and said George requested the respondent to go in between the wall of the box-stall and the back of the horse and assist in raising the horse to his feet; that the horse was sick and unable to stand alone, and that while plaintiff was assisting said George in raising said horse to his feet said horse fell upon the plaintiff and injured plaintiff in such manner as to break both bones of his right leg.

At the time this accident occurred it appears to have been a rule of the appellant company to require all employees to pay one dollar a month as a hospital fee, the payment of which entitled the employee to hospital services in case of sickness or injury, in either a hospital located in Palouse, Washington, and conducted by one E. T. Hein, or in a hospital at Moscow, Idaho, conducted by one Charles L. Gritman; that appellant company had collected and withheld from the moneys and wages due the respondent for the months of March, April, May and June, 1907, one dollar for each month as a hospital fee, and issued to the respondent a card on the Gritman Hospital at Moscow, Idaho, and that such card was in full force and effect at the time of the accident; that after the accident respondent requested that he be taken to the hospital of Gritman at Moscow but was urged by A. W. Laird, the assistant general manager of the appellant company, to go to the hospital of E. T. Hein at Palouse, and finally consented and was taken to such hospital. He remained at the Hein hospital for several weeks. He was not satisfied at this hospital and complained of the treatment he received, and was returned to his home at Palouse. He complained to Laird that Hein was incompetent and did not give him proper treatment, and that he was not improving as he should, and he felt as though the company had not treated him right in urging him to go to the Hein hospital, and told Laird that he intended to bring an action against the appellant company for damages because of such treatment. He testifies that he made such complaint to Laird, and after having told Laird that he intended to bring an action against the company, Laird told him if he would say nothing about an action he would see that his wages were sent up to him each month. It appears that he had been receiving $ 2.50 a day as wages, including Sundays. This conversation Laird denies; he does admit that plaintiff made complaint to him of his mistreatment, but denies that the question of suit or action for such treatment was ever mentioned by plaintiff. He testifies that he did tell the plaintiff that he would see that he was taken care of and would send him money when needed; whether Laird agreed to pay him his wages until he was able to go to work again, in consideration that the plaintiff would forego suit, is the foundation for this action.

The plaintiff brought this action to recover the sum of $ 1.250 claimed to be due him by reason of this agreement. The cause was tried to a jury and a verdict returned in favor of the plaintiff for the sum of $ 650. A motion for a new trial was denied and this appeal is from the judgment and from the order overruling the motion for a new trial.

It is first contended that the evidence does not support the verdict. In corroboration of the plaintiff's testimony the plaintiff introduced in evidence the following check:

"POTLATCH LUMBER COMPANY.

No. 8063.

Potlatch, Idaho, Aug. 16, 1907.

Pay to Frank Heath or order in payment in full for

labor from date of injury, June 22, '07, to Aug.

1st, 1907. 38 days at $ 2.50

$ 95.00

Less July rent

$ 10.70

3 loads of wood in August

4.50

15.20

$ 79.80

Above Frank Health hereby releases all claims of whatsoever nature against Potlatch Lumber Company.

Seventy-nine and 80-100 Dollars.

If not correct, return without alteration, stating differences.

POTLATCH LUMBER COMPANY,

By A W. LAIRD,

Asst. General Manager.

To Potlatch State Bank,

Potlatch, Idaho."

This check was indorsed by the plaintiff and paid.

It will be seen that the terms of this check tend to support the evidence of the plaintiff to the effect that the defendant would pay him his wages during the time he was unable to work by reason of the injury and that this check was in payment of such wages. Also a second check issued to plaintiff as follows:

"POTLATCH LUMBER COMPANY.

No. 9303.

Potlatch, Idaho, Sept. 30, 1907.

Pay to F. S. Heath or order in payment of his Au-

gust time 31 days at $ 2.50

$ 77.50

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