Nephew v. Michigan Cent. R. Co.

• Decision Date: 04 November 1901
• Citation: 128 Mich. 599,87 N.W. 753
• Court: Michigan Supreme Court
• Parties: NEPHEW v. MICHIGAN CENT. RY. CO.

87 N.W. 753

128 Mich. 599

NEPHEW v. MICHIGAN CENT. RY. CO.

Supreme Court of Michigan

November 4, 1901

Error to circuit court, Wayne county, George S. Hosmer, Judge.

Action by Joseph Nephew against the Michigan Central Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

In 1887, and for some two years prior thereto, plaintiff had been employed as a brakeman on a passenger express train of the defendant company. On May 5, 1887, his hand was injured while coupling the engine to the baggage car. He was detained from work only two or three days, and continued in his employment as a brakeman of that train until he was taken off in the fall of that year, and ordered to a similar position upon a regular train. He testified that he was not able to set the brakes and hold the train according to the rules and regulations. He thereupon left the company's employ, and brought a suit for damages. In May or April, 1888, that suit was referred to an attorney of the company, was settled and discontinued, and the following receipt given by plaintiff 'June 13, 1888. The Michigan Central Railroad Company, to Joseph Nephew, Dr. Address: Bay City, Mich. For damages for injuries received May 5, 1887, at West Bay City, being employed as passenger brakeman by this company, and while in the act of coupling the engine onto the baggage car, right hand was caught between the end of the link and lower part of the draw-bar of engine, severely injuring the first and second fingers, and the cords leadig to the same, disabling him for a long time, and it is claimed that the accident was caused through a defective draw-bar on the baggage car,--$314.75. This received in full settlement and satisfaction of all claims for damages of every kind whatsoever which I have or may have against the Michigan Central Railroad Company, arising in any way from said accident. Received June 13, 1888, of the Michigan Central Railroad Company, the sum of three hundred fourteen 75/100 dollars in full of the above account.' Plaintiff testified that this settlement was made with Mr. Russell, the general attorney for the defendant company; that at the same time he executed this receipt a written agreement was made and signed by him and Mr. Russell as attorney for the company, agreeing to employ him for the railroad company, for the rest of his life, at the same wages he had been receiving, to wit, $50 per month; that for this consideration he was to be employed at what he could do with his crippled hand. He testified that this agreement was retained by Mr Russell; that he received a check for the amount stated in the receipt, less an amount deducted for his attorneys. A brother of plaintiff corroborated plaintiff's testimony as to the settlement. The making of such an agreement is absolutely denied by Mr. Russell and by Mr. Nadolleck, who was then the chief clerk in the defendant's legal department, and Mr. Russell's assistant. Mr. Russell testified that he had no authority to make such a contract and never had, by virtue of his employment as attorney, or by any special instruction, during his entire service with the company, made such an arrangement with any person; that his duty was to attend to the legal...