Pennsylvania Co. v. Good

• Decision Date: 19 December 1913
• Docket Number: No. 8,065.,8,065.
• Citation: 56 Ind.App. 562,103 N.E. 672
• Parties: PENNSYLVANIA CO. v. GOOD.
• Court: Indiana Appellate Court

56 Ind.App. 562

103 N.E. 672

PENNSYLVANIA CO.

v.GOOD.

No. 8,065.

Appellate Court of Indiana, Division No. 2.

Dec. 19, 1913.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by John S. Good against the Pennsylvania Company. From a judgment for plaintiff, defendant appeals. Reversed with directions to sustain motion for new trial.

Samuel O. Pickens and Owen Pickens, both of Indianapolis, for appellant. George W. Galvin, of Indianapolis, for appellee.

LAIRY, C. J.

In this case appellee recovered a judgment against appellant for damages claimed as a result of the breach of a parol contract of employment. As shown by the complaint, the contract upon which the action is based was entered into between the appellee and appellant in the year 1882, at a time when appellee had sustained an injury while in the employ of appellant, and was making a claim against it for damages on account of such injury. It is claimed by appellee that, as a compromise and settlement of the claim for damages he was making against the company, appellant proposed to give him permanent employment, and to secure to him a life position suited to his capacity, in connection with the road which it operated, and to pay him as compensation for services to be so rendered $30 per month for each month of 26 days of 11 hours each. Appellee further claims that he accepted this position and released all claims for damages against appellant, and entered its employment under such contract in the capacity of a watchman at crossing; that he continued to work in such capacity at Franklin and at Indianapolis, to which place he was transferred, until he was discharged; that he was discharged without cause; and that appellant has, since such discharge, refused to furnish him any employment.

By the second paragraph of answer, appellant set up the six-year statute of limitations as a bar to plaintiff's action. The brief of appellant presents no question as to the sufficiency of the pleadings, and the only question properly presented arises upon the action of the court in overruling appellant's motion for a new trial. As bearing upon the issue presented by this second paragraph of answer and the reply thereto, the evidence shows without dispute that appellee was discharged from the service of appellant on the 22d day of May, 1902, and it was admitted at the trial that the complaint in this case was not filed until August, 1908.

[1] If appellant was bound by a valid contractto furnish employment to appellee for life, a discharge of appellee without cause would amount to a breach of such contract.

[2] Upon such a breach, appellee had a right to pursue either of two remedies. He might treat the contract as still subsisting, hold himself in readiness to perform and sue on the contract for the wages due him thereunder, or he could treat the contract as terminated by the breach, and sue at once for the entire damages resulting to him from such breach. Richardson v. Eagle Machine Works, 78 Ind. 422, 41 Am. Rep. 584;French v. Cunningham, 149 Ind. 632, 49 N. E. 797.

[3] The cause of action for a breach of a contract accrues at the time the breach occurs, and the statute of limitation begins to run from that date.

[4] If appellant had elected to treat the contract as still subsisting, and to sue under it for his wages, his cause of action as to each installment of such wages would have accrued at the time when such installment was due and payable by the terms of the contract, and the statute of limitations as to each installment would run from the time it became due. In this case appellee elected to treat the contract of employment as terminated by his discharge, and to sue for the entire damage resulting to him. This right of action accrued on the date of his discharge, and the statute of limitations expired on the 22d day of May, 1908.

It appears from the evidence that in 1904 an action was commenced by appellee against appellant in Marion county and taken on a change of venue to the Boone circuit court. Appellee's attorney testified that after a partial trial of this case, he dismissed it on the 19th day of May, 1908, because of erroneous rulings of the court. Appellee insists with apparent sincerity that the statute of limitations did not begin to run against his cause of action until the date of the commencement of this first action. In support of this view it is stated that, prior to the commencement of this action, appellee had been engaged in some negotiations with appellant by which he was seeking to be reinstated in his former position, and that he did not elect to treat the contract as terminated until the time when he brought the first action.

[5] Appellee's position is that the statute began to run at the time he elected to treat the contract as terminated, and not at the time appellant committed a breach of the contract by discharging him. The mere statement of the proposition is sufficient to refute it. When appellant discharged appellee it committed a breach of the contract. A cause of action in favor of appellee at once arose, and it only remained for him to elect which remedy he would pursue. If he elected a remedy which required him to proceed upon the theory that the contract of employment was terminated by his discharge, the date of such discharge would mark the time when such cause of action accrued, without regard to the time when such election was made.

[6] The attention of the court is called to a statute of this state which reads as follows: “If, after the commencement of an action, the plaintiff fail therein, from any cause except negligence in the prosecution; or the action abate, or be defeated by the death of a party; or judgment be arrested or reversed on appeal-a new action may be brought within five years after such determination, and be deemed a continuation of the first, for the purposes herein contemplated.” Burns 1908, § 301.

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