Illinois Cent. R. Co. v. Fairchild

• Court: Indiana Appellate Court
• Writing for the Court: ROBY
• Citation: Illinois Cent. R. Co. v. Fairchild , 48 Ind. App. 300, 91 N. E. 836 (Ind. App. 1910)
• Decision Date: 17 May 1910
• Docket Number: No. 6,734.,6,734.
• Parties: ILLINOIS CENT. R. CO. v. FAIRCHILD.

48 Ind.App. 300

91 N.E. 836

ILLINOIS CENT. R. CO.

v.FAIRCHILD.

No. 6,734.¹

Appellate Court of Indiana, Division No. 2.

May 17, 1910.

Appeal from Circuit Court, Vanderburg County; A. Gilchrist, Judge.

Action by Chester Fairchild against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. E. Williamson and John G. Drennan, for appellant. Posey & Hardy, for appellee.

ROBY, J.

The complaint is in one paragraph. It is averred therein that appellee was in appellant's service as yard brakeman, and while engaged in said work received injuries resulting in the loss of his leg. It is further averred: That on the 30th day of January, 1905, the defendant promised and agreed to pay plaintiff in full settlement and satisfaction for said injury and damage the sum of $250, and receive him back into their services and re-employ him and give him steady and permanent employment from the 1st day of March, 1905, for and during the period of his natural life, at such labor as he should have the ability to perform, and pay him a reasonable and fair compensation therefor. That the defendant required, as a condition to said promise and agreement, and as a further consideration therefor, that plaintiff should sign and execute a release to defendant, releasing defendant from all liability for damages and all claims and rights whatever growing out of said injury, and relinquishing all claims and rights to bring suit therefor. That the plaintiff then and therefor accepted and agreed to the terms of said contract of settlement, and thereafter did execute and sign and deliver to the defendant said release, which was accepted by the defendant as a fulfillment of said contract by the plaintiff. The complaint then sets out that on the 1st day of August, 1905, appellant employed appellee; that on the 10th day of January, 1906, the defendant wrongfully discharged the plaintiff, and has ever since refused, and still refuses, to employ him; and that appellee was able, ready, and willing to continue in the service of defendant. The issue was made by a denial. A trial by jury resulted in a verdict and judgment for $1,800, which was reduced by remittitur to $1,200.

The appellant introduced in evidence a written instrument, by the terms by which appellee released it from liability for damages. The consideration for such release is stated by way of recital as $250. The true consideration was, under all the authorities, therefore open to proof. Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289;Stewart v. Chicago, etc., R. Co., 141 Ind. 55, 40 N. E. 67;Indianapolis R. Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787.

The evidence supports the allegations of the complaint. Appellee lost his leg while in appellant's service. He lived at Evansville, and subsequently went to Chicago and had an interview with appellant's general claim agent, who proposed to give him $250 and “a lifetime job” in consideration for a release. Appellee seems to have been more concerned about the job than the money and returned home with the understanding that the release, voucher, and a letter to the assistant superintendent at Evansville with regard to the employment would be there almost as soon as he was. The voucher and release were handed to him in a few days, but the letter to the superintendent was not with them. He did not execute the release, but later wrote to the claim agent, calling his attention to the fact that a position was soon to be vacant which he could fill, but that the official having authority told him that it was partly promised. The concluding part of the letter was as follows: “You know it is not everything I can do, the shape I am in. I am ready for work at any time. Please have them place me as soon as possible as I need the work. Mr. Losey I received voucher February 6th still holding it waiting for information in regard to job. Hope you will attend to this at once, and oblige. Chester Fairchild.” In answer to this, the claim agent wrote, stating that he had nothing to do with furnishing positions to employés; that he had not...