Pullman Co. v. Ray

• Citation: 94 A.2d 266,201 Md. 268
• Decision Date: 09 January 1953
• Docket Number: No. 51,51
• Parties: PULLMAN CO. v. RAY.
• Court: Court of Appeals of Maryland

Page 268

201 Md. 268

94 A.2d 266

PULLMAN CO. v. RAY.

No. 51.

Court of Appeals of Maryland.

Jan. 9, 1953.

Dissenting Opinion Filed Feb. 3, 1953.

Rehearing Denied Feb. 13, 1953.

Douglas N. Sharretts, Baltimore (Harlan, Sharretts & Purcell and Mason P. Morfit, Baltimore, on the brief), for appellant.

Joseph Allen, Baltimore (Fred Oken and Jacob D. Hornstein, Baltimore, on the brief), for appellee.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a judgment on a jury's verdict for damages for breach of an alleged oral contract of life employment. The questions raised are as to the correctness of the rulings on demurrer and motion for judgment, the correctness of the rulings on the demurrer prayers and motion for judgment n. o. v., and the correctness of the court's charge to the jury.

The original declaration alleged that the plaintiff was employed as a Pullman porter on June 1, 1924, when he had an accident in the course of his employment and suffered serious injuries including the loss of a leg; that while convalescing the defendant offered 'to employ him for the balance of his life', which offer he accepted, and 'in consideration of said agreement the plaintiff surrendered his right to damages in an action at law against the defendant'; that in accordance with the agreement he was employed by the defendant until July 22, 1949, when he was discharged without just cause. The plaintiff claimed damages for breach of the agreement.

Before pleading the defendant took the plaintiff's deposition and the plaintiff testified under oath that the alleged oral contract was made on behalf of the defendant by Samuel McNabb, its District Superintendent at Baltimore; that nothing was said at that time about salary, or what his duties would be except that they would be light, and that no specific job was mentioned. Later in the examination the plaintiff testified, however, that McNabb said 'he was going to give me a job at the Camden Station carrying diagrams'.

The defendant then filed a demurrer to the declaration attaching thereto a copy of the deposition. He also moved for judgment on demurrer. The ground of the motion was that the plaintiff could not, consistent with the facts testified to under oath in the deposition, amend the declaration so as to state a good cause of action. The demurrer was sustained, apparently on the ground that the declaration was too indefinite in that it did not state an agreement to employ in a specific job or at a specific compensation, but leave to amend was granted. Thereupon an amended declaration was filed adding allegations to the effect that the defendant offered the plaintiff lifetime employment as a diagram messenger at Camden Station, Baltimore, at a starting wage of $87.50 per month with compensation thereafter at the regular and customary rate, taking into consideration length of service and seniority. A demurrer to this declaration was overruled. We think the ruling was correct. The contract alleged in the amended declaration was sufficiently definite to meet the test laid down in Heckler v. Baltimore & O. R. Co., 167 Md. 226, 173 A. 12, and Baltimore & O. R. Co. v. King, 168 Md. 142, 176 A. 626.

Of course, the deposition formed no part of the plaintiff's pleading, and the scope of the demurrer could not be enlarged by the defendant's action in attaching the deposition to the first demurrer. We see no analogy to a bill of particulars. When filed pursuant to demand, a bill of particulars becomes a part of the declaration and hence may be reached by demurrer. Gaver v. Frederick, 175 Md. 639, 643, 3 A.2d 463. The motion for judgment was based on the theory that the court could not properly permit an amendment in contradiction of the deposition. But it is well established that the allowance of amendments is discretionary with the trial court and not subject to review. Poland v. Chessler, 145 Md. 66, 69, 125 A. 536.

The appellant contends that the motion was tantamount to a motion for summary judgment, under Summary Judgment Rule 1, of the General Rules of Practice and Procedure. It is clear that the rule was designed not as a substitute for trial but only to dispose summarily of cases when there was no genuine controversy as to the material facts. There is no allegation of a lack of controversy in the motion in the instant case. We may assume that a pretrial deposition taken under Deposition Rule 1 could be used under Rule 11(2) as an admission in lieu of an affidavit. See Explanatory Notes, 1947 Supplement to the Code of 1939, pp. 2109, 2114, and 3 Barron, Federal Practice (Rules ed.) Sec. 1236, p. 90, and cases cited construing Federal Rule 56, 28 U.S.C.A., from which our rule was adapted. But it would not be conclusive where there is a genuine dispute of fact. Ordinarily, a pretrial deposition is taken either for the purpose of discovery or for use at the trial to impeach inconsistent testimony. The fact that a previous inconsistent statement was made under oath would not be ground for a directed verdict or preclude the jury from believing the testimony at the trial. Crunkilton v. Hook, 185 Md. 1, 5, 42 A.2d 517; Florentine v. State, 184 Md. 335, 40 A.2d 820; Porter v. Greenbrier Quarry Co., 161 Md. 34, 155 A. 428. For the same reason, it would appear that the trial judge should not grant a summary judgment where the material facts are disputed, for to do so would usurp the jury's function, where a jury trial is prayed. There is also force in the appellee's contention that although no counter affidavits were filed, there was no real inconsistency between the statements in the deposition and in the amended declaration, at least none that could not be explained. The effect of the allowance of the amendment to the declaration was to permit the plaintiff to explain, amplify or controvert the previous admissions. We find no error in the ruling on the motion.

In regard to the contentions as to the legal insufficiency of the evidence, it is undisputed that the plaintiff was hired by District Superintendent McNabb as a sleeping car porter in 1923. On Sunday, June 1, 1924, while on duty and working as an employee on an all Pullman train making an extra run from Chicago to Washington, D.C. he sustained injuries while the train was in the Washington Terminal. The cause of the accident was not disclosed. He was taken to the Emergency Hospital in Washington where he remained until August 13, 1924, when he was sent to his home in Baltimore. McNabb came to see him at his home. He 'saw that I were worrying, which I were, and he said to me that I didn't have anything to worry about, he said, because The Pullman Company will give you a job, he said, we are going to provide a job for you as soon as you are able to go to work and get along with your artificial leg.' The Company paid for the artificial leg and the hospital expenses. McNabb 'didn't say I'd have any specific job on that first visit, but he did say 'I'd have a lifetime job, whenever I would be able to go to work.' McNabb visited him 8 or 10 times at his home and told him to come to the office when he was able to do so. The appellee got his artificial leg in November, and reported to McNabb at his office in the American Building. On this visit McNabb mentioned the diagram messenger job, but the appellee was still not able to work. Whenever he called at the office, once a week, McNabb told him the diagram messenger job would be his for life. About two weeks before he went to work, McNabb told him his salary would be $87.50 a month, 'that's what they were going to start me off at.' He said, 'Willie, from time to time I'm quite sure that you will get a raise, according to the Pullman Company * * * rules and regulations of your seniority.' He went to work in January, 1925, but not as diagram messenger. He worked at 'light duty at the lien room', as stockkeeper or storekeeper's helper, for about two years before he became diagram messenger. He worked at the latter job until 1942, when the job was eliminated and he was again assigned to the stockroom although he was listed as a messenger until 1946. On July 22, 1949 he was furloughed. At the time of his furlough he was receiving $213.90 a month and was 55 years old.

The appellee further testified that he did not file any claim or suit against thte Pullman Company on account of the accident. When asked why he did not do so, he answered: 'The first visit Mr. McNabb made to my house changed my mind. I didn't give it a thought after that. Mr. McNabb promised me a lifetime job and artificial legs as I needed them and I didn't feel I had any time to bother with the Company, if the Company had brought such a suggestion to me that I'd be able to raise my family during my lifetime and I abandoned the idea of any law suit.'

Mr. McNabb died in 1936. The appellee produced two other witnesses, one of whom testified without objection that in November 1925 he was working for the appellant as a conductor. When he was in the office a wire came for Mr. McNabb advising him that an employee, Magers, had been killed in a wreck. Mr. McNabb said: 'Well, it's too bad about Magers, but the damages in a case like this are not near as bad as if you injure a man permanently. He said if we had not been able to give Willie Ray a lifetime job and take care of him, that could have been a very expensive proposition with [a man] as young as he was at the time.' The other witness, also a conductor, testified that Mr. McNabb told him in 1929 that Ray had 'a lifetime job with our company, and he was then working as diagram man at Camden Station.'

The appellant produced testimony that there was no record of the Company to show any offer or agreement by McNabb as to lifetime employment of Ray, nor any letter or communication to the main office. There was nothing in the by-laws of the Company or minutes of the directors authorizing McNabb or any District Superintendent...