St. Louis & S.F.R. Co. v. McCrory

• Decision Date: 14 November 1911
• Citation: 56 So. 822,2 Ala.App. 531
• Court: Alabama Court of Appeals
• Parties: ST. LOUIS & S. F. R. CO. v. MCCRORY.

56 So. 822

2 Ala.App. 531

ST. LOUIS & S. F. R. CO. v. MCCRORY.

Court of Appeals of Alabama

November 14, 1911

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

Action by Walter McCrory against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Bankhead & Bankhead, for appellant.

A. F. Fite and E. B. & K. V. Fite, for appellee.

DE GRAFFENRIED, J.

The appellee was, on the 3d day of December, 1908, an employé of appellant, and while acting in the line of his employment was painfully injured. There was evidence in the case tending to show that the appellant was legally liable to appellee for the damages suffered by him on account of such injuries.

On the 13th day of January, 1909, appellant paid to appellee $50 and obtained from him a release in full discharge of all liabilities of all sorts on account of such injuries. L. M Smith, who was a claim agent of appellant, represented it in the negotiations which resulted in the payment to appellee of the $50 and the execution by him of the release. There was also evidence tending to show that appellee had not recovered from his injuries when the release was signed, and that appellee would not sign the release until Smith had agreed, on behalf of the appellant, that appellee should have the same right to work for appellant that he had always had. Appellee, at the time of his injury, was an ordinary laborer in a bridge gang of appellant, and had been in its employ in that capacity for seven years. On the subject of what occurred at the time of the delivery of the release, the appellee testified as follows: "I told him at first that I would not sign anything, under no circumstances, and finally he said that he would give me $50 and the same privilege of working that I always had. He promised that he would not interfere with my getting work, and that he would write the superintendent that I had settled satisfactory to the company. After he had filled out the release and check, I said, 'If you are going to knock me out of work, I will not sign it,' and he told me that I would have the same privilege of working I always had."

The evidence further tended to show that J. C. Pentecost, general superintendent of bridges of appellant, in the early part of February, 1909, sent out notices to the bridge foremen of appellant not to employ appellee, and that the claim agent Smith, after obtaining the release, told Pentecost on the train one day that, in his opinion, appellee would give trouble, if retained in the service of the company. There was some evidence in the case tending to show that appellee was not sufficiently able physically to undertake his accustomed work for appellant until the fall of 1909; that after his injury he worked on a farm, and either raised a crop, or aided in raising one, and also worked for a while in a hotel that in the fall of 1909 he applied to a bridge foreman of appellant for work, and was informed that the superintendent of bridges had sent out notices prohibiting his employment; that he then wrote the claim agent, Smith, and that Smith denied, in reply to his letter, that he had agreed that appellee could go back into the service of appellant, and declined to make any request for his reemployment. The evidence further tended to show that appellee then employed an attorney to bring suit against appellant for the damages suffered by him on account of said injuries, and that such attorney wrote two letters, one addressed to the claim agent, Smith, and the other to the "General Claim Agent" of appellant, addressed to its home office in St. Louis, Mo., giving notice that appellee annulled the contract by which he had released appellant from liability, and offering to return the $50 to appellant, and that no reply was ever received from either letter. After appellee had employed an attorney, and had notified appellant that appellee had rescinded the contract, Smith wrote a letter to the superintendent of bridges, stating that he had no objection to the employment of appellee, but not before that time.

If appellee's testimony is true, one of the prime considerations for the execution by him of the release was the agreement on the part of appellant that his position with it, so far as employment was concerned, would be on the same footing as it had been previous to his injury. As Smith was authorized by appellant to conduct the negotiations which culminated in the delivery of the release, Smith was, during the negotiations, the company itself. There was evidence taking into consideration the conduct of appellant immediately...