Oline v. Southern Ry. Co
| Decision Date | 21 March 1918 |
| Docket Number | (No. 9933.) |
| Citation | 96 S.E. 532 |
| Parties | OLINE . v. SOUTHERN RY. CO. et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of York County; S. W. G. Shipp, Judge.
Action by D. J. Cline against the Southern Railway Company and another. A demurrer to the complaint was sustained in part and overruled in part, and both plaintiff and defendants appeal. Reversed in part, affirmed in part, and remanded.
The following is the amended complaint:
For a first cause of action:
(1) Paragraphs 1 and 2 allege the incorporation of the defendants.
(3) That on and some time previous to September 30, 1913, the plaintiff was in the employment of the defendants, in the capacity of foreman, laborer, or mechanic, and among the duties assigned the plaintiff was that of repairing and constructing trestles, coal chutes, and general repair work of the defendants.
(4) That on September 30, 1913, the plaintiff was directed and assigned by the defendants to repair or construct a coal chute, at or near Langley, S. C., and the plaintiff, while engaged with other employes of the defendants in said construction work, was seriously and permanently injured, in that the plaintiff, while attempting to adjust, move, or construct, a part of said coal chute or trestle, had a "trestle bent" of great weight to fall on him, crushing him to the ground, breaking his back, ribs, and seriously and permanently injuring the plaintiff in his body and person, to the great hurt and damage of the plaintiff.
(5) That the injury, hurt, and damage sustained by the plaintiff was due to the joint, separate, and concurrent negligence, willfulness, recklessness, anil wantonness of the defendants, in that said defendants failed to provide the plaintiff adequate tools, appliances, competent and sufficient help to perform the work delegated and assigned the plaintiff by said defendants.
(6) That on or about January 5, 1914, the plaintiff entered into a contract with the defendants, and agreed for a valuable consideration to release said defendants from all liability arising from said damages, inflicted upon the said plaintiff, as herein alleged, and that the chief and main consideration moving the plaintiff to execute said release was that the defendant contracted and agreed to give to the plaintiff a position of foreman or some similar position of employment, for an indefinite period of time, so long as the plaintiff's work was satisfactory; that said position so contracted for carried a salary of about $120 the month.
(7) That it was represented to the said plaintiff at the said time that he had age limit, seniority, or precedent over certain other employe's, and consequently the position contracted for and assured the plaintiff would be given to the plaintiff by the defendants; but, on the contrary, the plaintiff did not have age limit, precedent, or seniority over the said other employes, and the defendants could not and did not give the plaintiff the said position contemplated by said contract entered into between the plaintiff and the defendants.
(8) The defendants failed and refused to give to the plaintiff said position of foreman or any similar position, and the defendants knew at the time of making said promise, representation, and assurance that said promise, contract, and assurance could not, and would not, be performed by the said defendants, and there was, at the time of the making of the said contract, a present purpose and intention not to perform the same, and the representations that the plaintiff had age limit, seniority, and precedent over certain other of defendant's employes, which would entitle the plaintiff to said position, was false, pretensive, misleading, and known at the time to be false and untrue, and said statements were made to beguile, deceive, and defraud the plaintiff into releasing said damages and to make said contract.
(9) That the defendants willfully, wantonly, and fraudulently refused and failed to perform the terms of said contract, but discharged and refused to give the plaintiff said position, according to the contract and agreement.
(10) That the defendants, on or about April, 1914, discharged the plaintiff, and refused toperform or carry out the terms of the said contract, to the damage of the plaintiff in the sum of $40,000.
For a second cause of action:
(3) That on and some time previous to September 30, 1913, the plaintiff was in the employ of the defendants, in the capacity of foreman, mechanic, or laborer, and among the duties assigned and delegated to the plaintiff by the defendants was that of repairing or constructing a coal chute or trestle, the property of the defendants, at or near Langley, S. C., on the line of defendants' railway system.
(4) That on September 30, 1913, the plaintiff was directed and assigned by the defendants to repair a coal chute or trestle, at or near Langley, S. C., and the plaintiff, while engaged with other employes of the defendants in said work was seriously and permanently injured, in that the plaintiff, while attempting to adjust, move, or construct a part of said trestle or coal chute, had a "trestle bent" to fall on him, crushing him to the ground, and seriously and permanently injuring the plaintiff in his back, ribs, body, and person, to the great injury and damage of the plaintiff.
(5) That the injury, hurt and damage sustained by the plaintiff was due to the joint and concurrent negligence, willfulness, and recklessness of the defendants, their agents and servants, in that the said defendants failed to provide the plaintiff sufficient and adequate tools and appliances, assistants, competent and sufficient help to perform the work assigned and delegated to the plaintiff.
(6) That on or about January 5, 1914, the plaintiff entered into a contract with the defendants, and agreed for a valuable consideration to release said defendants from any and all liability arising from said damages, inflicted upon said plaintiff, as herein alleged, and that among the considerations moving the plaintiff to release said cause of action for liability was that the defendants contracted, agreed, and promised to give to the plaintiff a position of foreman, or some similar position, for an indefinite period so long as plaintiff's work was satisfactory, and that said position carried a salary of $125 the month.
(7) That it was represented to the plaintiff, at said time, and previously, that for and in consideration of the execution of the said release of damages, for and in consideration thereof, the defendants would give to the plaintiff a permanent and lucrative position, whereas, said promise and assurance thus made to the plaintiff was false and untrue, deceptive and pretensive, and the same was a part of a scheme and trick or device to beguile and induce the plaintiff to release his said cause of action for damages, and the promises and assurances then made and given the plaintiff with reference to said employment, for an indefinite period, were then known to the defendants to be false and untrue, but the same were made to deceive and defraud the plaintiff, and the same did deceive and defraud the plaintiff.
(8) That it was also represented to the plaintiff previously, and at the time of the execution of the release of said cause of action for damages, and in furtherance of the said scheme to defraud the plaintiff, that the injuries of the plaintiff were slight, insignificant, and not permanent, and the surgeons and physicians of the defendant made said representations and misstatements to the plaintiff recklessly, and well knowing the same to be false and untrue at the time, and said false and misleading statements of the said physicians and surgeons of the defendants aided and contributed to induce the plaintiff to release said cause of action for damages against said defendants, and also the agents and servants of the defendants represented to the plaintiff that his injuries were slight, insignificant, and not permanent, also that the defendants were not liable in a legal sense for damages, and the said servants and agents knew said statements to be false, untrue, deceptive, and misleading, and it was also represented to the plaintiff, at said time, and in furtherance of the scheme and purpose to defraud and deceive the plaintiff, that he had age limit, seniority, or precedent over certain other employes, and that by reason thereof he could and would be given a position of foreman or some similar position, for an indefinite time, at a salary of $125 the month; whereas, said promises and assurances were fraudulent, deceptive, and not founded in fact, but made for the purpose to defraud and deceive the plaintiff, all of which did deceive and beguile the plaintiff into releasing his cause of action for damages mentioned herein, to great damage of the plaintiff in the sum of $40,000.
(9) That the representations, promises, and assurances, as alleged in the preceding paragraph, and elsewhere herein, did contribute to induce the plaintiff to release his said cause of action against the defendants, and there was no intention on the part of the defendants, at the time of making said representations, to perform the same; but, on the contrary, there was a present purpose not to perform the same, and at said time the plaintiff was very much depressed, in financial straits, due to his injury, and heavy expenses, and that a release of damages is a condition precedent to re-employment of servant by the defendants, and said release of said cause of action for damages was not fairly obtained, as the plaintiff was misled and deceived, and had it not been for the fraud perpetrated upon the plaintiff, as herein detailed, the plaintiff would not have released said cause of action for damages.
(10) That by reason of the fraud, deceit and imposition and swindle of the defendants the plaintiff has been damaged in the sum of $40,000.
(11) That the acts of the defendants as herein alleged were...
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