Milich v. The Armour Packing Company

• Citation: 60 Kan. 229,56 P. 1
• Decision Date: 11 February 1899
• Docket Number: 11086
• Parties: PETER MILICH v. THE ARMOUR PACKING COMPANY
• Court: United States State Supreme Court of Kansas

56 P. 1

60 Kan. 229

PETER MILICH v. THE ARMOUR PACKING COMPANY

No. 11086

Supreme Court of Kansas

February 11, 1899

Decided January, 1899.

Error from Wyandotte district court; HENRY L. ALDEN, judge.

STATEMENT.

THIS is an action by Peter Milich against the Armour Packing Company to recover damages for the breach of an alleged contract of employment. Michael Milich, father of Peter, was injured while at work for the defendant, and shortly afterward the injury resulted in death. It was claimed by Peter Milich that his father was injured through the negligence of defendant's foreman, and that therefore the defendant became liable to him and his mother, being the next-of-kin to the deceased, for a large amount of damages, and that in consideration of this liability defendant agreed to pay him $ 200 in money, and also to pay him $ 300 for his mother, under certain conditions, and, besides, was to furnish him permanent employment during his life at two dollars per day the wages to be increased with experience until he should be paid three dollars per day. The $ 200 was paid upon the execution of an agreement of release and subsequently $ 300 was paid to Peter for his mother upon the execution of a release by her, but he alleged that these payments were only a partial satisfaction of the agreements made between him and the defendant, and that the promise of employment was the principal consideration. It was alleged that for a time he was given employment in accordance with the oral agreement but that later the defendant shortened his time, reduced his wages, and finally refused to accept or pay for his services. For the breach of the alleged agreement he asked for damages in the sum of $ 10,000.

The defendant answered, denying that there was any independent oral agreement, but alleging that all the agreements and negotiations of the parties were reduced to writing and signed by them; that the consideration had been paid and the defendant released from liability for any and all claims for the alleged injuries of Michael Milich. Copies of the written agreements of release were attached to the answer, and are as follows:

"WHEREAS on December 12, 1891, Michael Militz, then an employee of the Armour Packing Company at Kansas City, Kan., received injuries which afterwards, upon December 14, 1891, resulted in his death; and

"WHEREAS it is claimed by parties interested in said deceased and his estate that such injuries were caused by the fault and negligence of the said Armour Packing Company, which claim, however, is denied by the latter; and

"WHEREAS, Peter Militz, now residing in Kansas City, Kan., and a son of said deceased, is the only next-of-kin now known; and

"WHEREAS, he does not know at present whether his mother, Annie Militz, is alive and survived the deceased; and

"WHEREAS, the parties to this agreement are willing and ready to settle all controversies and all question of liability that may exist:

"NOW, THEREFORE, this agreement witnesseth, that the said Armour Packing Company shall pay to the said Peter Militz the sum of two hundred dollars ($ 200) in cash, the receipt of which is hereby acknowledged, which sum satisfied all claims of any kind upon behalf of the said Peter Militz arising out of or in anywise connected with any claim for the death of said Michael Militz, as aforesaid.

"It is further agreed that the said Peter Militz shall make diligent effort to obtain the release of his mother, the said Annie Militz, if she be alive, and of such other heirs as may constitute the next-of-kin, if there be any, and upon obtaining valid release therefrom on or before the 14th day of December, 1893, the further sum of three hundred dollars ($ 300) is to be paid by the said Armour Packing Company to such persons; but if it turn out that there be no next-of-kin and that the said Annie Militz was dead and did not survive the said deceased, and this to be proven to the satisfaction of Pratt, Ferry & Hagerman, attorneys for the said Armour Packing Company, on or before said 14th day of December, 1893, then and in that case the three hundred dollars ($ 300) contemplated to be paid by this agreement for the satisfaction of any interest the said Annie Militz or other next-of-kin shall be paid to the said Peter Militz.

"It is further agreed that if it should turn out that said Annie Militz was alive at the time of the death of said deceased, and survived her husband, but subsequently died, then if the said Peter Militz can and will, on or before said 14th day of December, 1893, satisfy the said Pratt, Ferry & Hagerman that there are no other next-of-kin and that he is the sole representative of the said Annie Militz, and that in the meantime no release has been signed by the said Annie Militz, and then Peter Militz is to receive the $ 300 before mentioned.

"It is hereby further agreed that in case the said Peter Militz shall become entitled to receive said further sum of $ 300 under this agreement, he hereby binds himself to take and receive the same in full satisfaction of all claims for the said death, and if he refuses so to do, then the $ 200 this day paid him shall stand as a full satisfaction of all his demands.

SARMOUR PACKING COMPANY.

By G. W. Tourtelott.

PETER MILITZ."

"WHEREAS, on December 12, 1891, Michael Militz, then an employee of the Armour Packing Company, Kansas City, Kan., received injuries which afterwards, on December 14, 1891, resulted in his death; and

"WHEREAS, it is claimed by parties interested in the said deceased and his estate that such injuries were caused by the fault of the said Armour Packing Company, which claim is denied by the latter; and

"WHEREAS, Peter Militz, now residing in Kansas City, Kan., and a son of said deceased, has settled all interest which he has in the claim against said Armour Packing Company, and Annie Militz, the undersigned, widow of said Michael Militz, is desirous of settling any claim that she may have, all question of liability that may be occasioned on account of said injury:

"NOW, THEREFORE, this agreement witnesseth, that in consideration of the sum of three hundred dollars ($ 300), paid by the said Armour Packing Company, the said Annie Militz does hereby release and discharge the said Armour Packing Company from any and all liability upon any claim whatsoever in her favor, and especially from any claim or damage arising out of or connected with the death of her late husband, Michael Militz, and she does hereby authorize that the said sum of three hundred dollars ($ 300) so due her under this agreement be paid to the said Peter Militz, who is hereby authorized to deliver this agreement to the said Armour Packing Company upon the payment to him of the said sum.

"Witness my hand and seal, this day of Metretic, November 11, 1892.

[SEAL.] OENA MILICHEE Q. MIHECSEL,

As Lashbays."

An unverified reply to the answer was filed, and the contracts above set out were in fact conceded to have been duly executed.

When the case came on for trial an elaborate statement of the case was made by counsel for plaintiff, after which the defendant objected to the introduction of any testimony, because it appeared from the pleadings and statement of counsel that the plaintiff proposed to prove an oral agreement which varied and contradicted the terms of a written contract. The court sustained the objection, and finally gave judgment in favor of the defendant.

Judgement affirmed.

Getty & Hutchings, and J. C. Rosenberger, for plaintiff in error.

Angevine & Cubbison, and Karnes, Hagerman & Krauthoff, for defendant in error.

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