Pittsburgh, C., C. & St. L. Ry. Co. v. Baker

• Citation: 125 N.E. 233,73 Ind.App. 332
• Decision Date: 25 November 1919
• Docket Number: No. 9831.,9831.
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. BAKER.
• Court: Court of Appeals of Indiana

73 Ind.App. 332

125 N.E. 233

PITTSBURGH, C., C. & ST. L. RY. CO.

v.BAKER.

No. 9831.

Appellate Court of Indiana, Division No. 1.

Nov. 25, 1919.

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

Action by Harry W. Baker against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Stannard & Howard, of Jefferson, for appellant.

Frank S. Roby, of Indianapolis, H. W. Phipps, of Jefferson, and Burdette C. Lutz, of Charleston, for appellee.

BATMAN, J.

This is an action by appellee against appellant, based on a claim for additional compensation for services rendered by him as brakeman during a period of time in which he was regularly employed by appellant at a fixed compensation as porter on appellant's passenger trains, running from Louisville, Ky., to Logansport, Ind. Issues were joined, and the cause was tried before a jury. A verdict was returned in favor of appellee. Appellant has assigned to certain interrogatories submitted by the court. After motion by appellant for judgment on such answers notwithstanding the general verdict, judgment was rendered in favor of appellee. Appellant has assigned the actions of the court in overruling its demurrer to the second paragraph of complaint, in sustaining appellee's demurrer to the fourth and fifth paragraphs of its answer, in overruling its motion for judgment on the answers to the interrogatories, and in overruling its motion for a new trial, as the errors on which it relies for a reversal of the judgment in this cause.

We will proceed at once to consider the action of the court in overruling appellant's motion for judgment on the answers to the interrogatories notwithstanding the general verdict, as the conclusion we have reached in that regard renders it unnecessary to consider any of the other alleged errors assigned. The issues and facts in this case, and the questions presented thereon, are very similar to those in the recent case of Pittsburgh, etc., R. Co. v. Marable (Sup. 1919) 124 N. E. 393. In that case the court stated in substance that, while a person employed to perform services for a stated remuneration during a specified period may be entitled, under some circumstances, to recover additional compensation for extra service rendered at the request of his employer, even though the contract of employment makes no provision for such extra compensation, the right to such compensation depends on the existence of a contract to that effect, either expressed or implied; that whether such contract existed is one of fact, which should be generally left to a jury for decision, but in cases where only one inference can be reasonably drawn from the nature of the services and the attending circumstances, and where...