Lightcap v. Keaggy

• Decision Date: 29 September 1937
• Docket Number: 134-1937
• Citation: 128 Pa.Super. 348,194 A. 347
• Parties: Lightcap v. Keaggy, Appellant
• Court: Pennsylvania Superior Court

194 A. 347

128 Pa.Super. 348

Lightcap v. Keaggy, Appellant

No. 134-1937

Superior Court of Pennsylvania

September 29, 1937

Argued April 22, 1937

Appeal from judgment of C. P. Westmoreland Co., Nov. T., 1933, No 510, in case of Harry R. Lightcap v. Dr. J. B. Keaggy, alias dictus John B. Keaggy.

Assumpsit. Before Copeland, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Error assigned, among others, was refusal of judgment n. o. v.

Judgment reversed and new trial granted.

Fred B Trescher, of Kunkle, Walthour & Trescher, for appellant.

Charles C. Crowell, with him Howard H. Whitehead and Daniel V. Crowell, of Crowell & Whitehead, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Stadtfeld, J.

The defendant, Dr. John B. Keaggy, appeals from a judgment of the Court of Common Pleas of Westmoreland County, Pennsylvania. The case was tried before Copeland, P. J., and a jury, and resulted in a verdict for the plaintiff, Harry R. Lightcap. Motions for a new trial and for judgment n. o. v. were overruled by the court in banc and judgment entered on the verdict.

The plaintiff's suit is based on an alleged oral contract under the terms of which he claims the defendant agreed to employ him as manager of certain real estate in Greensburg and to pay him at the rate of $ 100 per month each and every month during the term of his natural life.

The statement of claim avers that the oral agreement was made in 1907 and was ratified by a writing executed January 5, 1917. The plaintiff was discharged by the defendant on July 17, 1933, and claims wages at the rate of $ 100 a month for the months of August, September and October 1933. The statements set forth that on January 1, 1932, the defendant unlawfully reduced the plaintiff's wages to $ 50 per month, and he claims the difference, to wit, $ 50 per month, during the period from January 1, 1932 to August 1, 1933.

The affidavit of defense admitted that the plaintiff entered into the defendant's employ around the first part of 1908, and that the plaintiff continued in his employ until July 17, 1933, but denied any hiring for the term of the plaintiff's natural life at a salary of $ 100 per month, and denied the execution of the writing relied upon as a ratification of the oral agreement, and averred that if the signature thereon was genuine, it had been procured by fraud. It was further averred that the writing had been materially altered by the addition of a certain acknowledgment and affidavit which enabled the plaintiff to record the writing.

In connection with the reduction in wages on January 1, 1932, the defendant set forth that he had notified the plaintiff of the reduction and that the plaintiff had assented thereto, and agreed to perform such services as were required for the sum of $ 50 per month. While the defendant insisted that he had a perfect right to terminate the relationship of employer and employee at any time, he averred by way of further defense, that irrespective of any contract of hiring he was justified and within his rights in discharging the plaintiff because of an assault made by the plaintiff upon him on June 11, 1932, and because he had learned that the plaintiff had violated his confidence by procuring his signature to certain deeds conveying property to straw-men and that the property pursuant to a secret understanding with the straw-men, was, in turn, conveyed by the straw-men to the plaintiff, Harry R. Lightcap.

At the trial the plaintiff testified that during the year 1907 he was living on a farm in Butler County when the defendant, a resident of Pittsburgh, sent for him and asked him to take charge of his properties in Greensburg. He testified that before going to Butler County, he had earned from two to three hundred dollars a month as salary and commission, and that the defendant had told him it would be better to go to Greensburg "for a life job at $ 100 a month." He further testified "He said he would give me $ 100 a month and furnish me a home." He detailed the various properties owned by the defendant in Westmoreland County and outlined the many duties performed by him during the twenty-five years he was in the defendant's employ. The duties, according to his testimony, ranged all the way from plowing and looking after the farms from time to time to managing a theater during one year.

With particular reference to the writing, Exhibit "A", which was dated January 5, 1917, he testified that it had been signed by Dr. Keaggy at the Strand Theater Building in the presence of one E. K. Snively, whose name appeared thereon as a witness. The writing purported to give him the right to occupy the dwelling on the "Williams" farm as long as he lived and to purchase the same for $ 7,000 at any time, and contained the words, "The above lease or agreement is not to change or alter in any way my promise to Harry R. Lightcap of October, 1907, when I contracted to employ him as manager of my real estate at Greensburg, Pa., and agreed to pay him one hundred dollars for each and every month during his natural life time . . . ."

The writing bore the acknowledgment of the subscribing witness, E. K. Snively, dated May 29, 1933, and an affidavit by Mr. Snively, dated May 20, 1933. By means of this affidavit and acknowledgment, the plaintiff had been able to record the writing on July 18, 1933. The plaintiff admitted that the affidavit and acknowledgment had been executed and affixed without the knowledge or consent of the defendant.

He testified that in January 1932, Dr. Keaggy advised him that he was a little short of money and would have to cut down his pay for a time and that he had replied he had a life contract for $ 100 a month, and wanted Dr. Keaggy to live up to it. After that he was paid at the rate of $ 50 a month including the month of July when he was discharged. During the months of August, September and October 1933, he had received nothing.

Four witnesses testified that on occasions they had heard Dr. Keaggy make statements, the substance of which was that Mr. Lightcap had a life-time job. He, defendant, denied the statements attributed to him by other witnesses. He testified in detail about the assault in his office on June 11th.

In relation to the alleged assault of defendant by plaintiff, the plaintiff in rebuttal asserted that he had acted only in self defense and that the defendant was the aggressor, and insisted that Dr. Keaggy became angered when the plaintiff refused to sell out certain tenants and get possession of Dr. Keaggy's property.

The plaintiff, Harry R. Lightcap, occupied the farm house located on what is known as the Williams Farm. Exhibit "A", which was relied upon as a ratification of the oral agreement, purported also to give him the right to occupy this house as long as he lived.

The assignments of error relate to the refusal to enter judgment non obstante veredicto in favor of defendant, to certain portions of the charge of the court to the jury, and rulings on offers of evidence and the alleged improper admission of certain evidence.

The trial judge should have permitted the cross-examination of plaintiff, with reference to the insurance of plaintiff's property by the latter in defendant's name, and the payment therefor by the defendant; also with reference to plaintiff paying taxes on his own property and charging the same to defendant. He should also have permitted defendant to show the payment of taxes, repairs and insurance on behalf of defendant by plaintiff on the Williams' farm between October, 1923 and September, 1933, conveyed to Andrew Askounes by deed of defendant dated Oct. 10, 1923 and by said Askounes conveyed to plaintiff by deed dated Oct. 16, 1923. All this testimony would have a substantial bearing on the honesty and good faith of plaintiff and the justification of the discharge of plaintiff by defendant. The 6th, 7th, 11th and 12th assignments of error are therefore sustained.

The only testimony in support of the alleged agreement, outside of four witnesses who testified to alleged statements by the defendant that Mr. Lightcap had a lifetime job, was that of the plaintiff himself. The essential parts of his testimony on which he relies for a recovery are as follows: The plaintiff, Harry R. Lightcap, testified that in the early part of the year 1907, he had rented a farm in Butler County where he had gone for a rest. Dr. Keaggy sent for him about the middle of October 1907. The conversation relating to the contract took place in the office of Dr. Keaggy at Pittsburgh. "Q. Did he inform you why he had sent for you? A. Yes, sir. Q. Will you tell what the conversation was between you, incident now to the employment? A. He told me he was going to make a change in Greensburg. He wanted me to go up, I told him I would consider it, but I had a lease in Butler County I would have to take care of -- it was for two years. He told me to see what I could do about the lease and then let him know. I went to the real estate man whose mother owned the farm, he said he would release me from this lease. Q. You made arrangements with him, did you come back to Dr. Keaggy? A. Yes, I had to pay $ 100.00 for the release. Q. What took place between you and Dr. Keaggy? A. He said he wanted me to go to Greensburg for a life position, he said he knew I made more in Pittsburgh, I made $ 200.00 to $ 300.00 a month salary and commission, he said it would be much better for me to go to Greensburg for a life job at $ 100.00 a month than to hold the job I had for $ 200.00 to $ 300.00. Q. What agreement did you make with Dr Keaggy? What proposition did he make to you and what did you...