The Pennsylvania Company v. Dolan

• Court: Indiana Appellate Court
• Writing for the Court: REINHARD, J.
• Citation: The Pennsylvania Company v. Dolan, 6 Ind. App. 109, 32 N.E. 802 (Ind. App. 1892)
• Decision Date: 14 December 1892
• Docket Number: 610
• Parties: THE PENNSYLVANIA COMPANY v. DOLAN

32 N.E. 802

6 Ind.App. 109

THE PENNSYLVANIA COMPANY v. DOLAN

No. 610

Court of Appeals of Indiana

December 14, 1892

Petition for a rehearing overruled February 18, 1893.

From the Clark Circuit Court.

Judgment affirmed.

S Stansifer, for appellant.

OPINION

REINHARD, J.

The first error of which the appellant complains is the overruling of its demurrer to the appellee's complaint, which, with the caption and formal parts omitted, is as follows: "The plaintiff James Dolan complains of the defendant, the Pennsylvania Company, and for cause of action says that the defendant company was, on the days and times of the grievances hereinafter mentioned, a railroad corporation duly organized and existing under the laws of the State of Indiana, owning, using and operating a line of railroad known as the Jeffersonville, Madison and Indianapolis Railroad, together with its locomotives, cars, switches, side-tracks and other appurtenances thereto belonging, at the county of Clark, in said State; that on the 9th day of January, 1890, the plaintiff was in the service of the defendant, in the capacity of yard brakeman, at said county; that the defendant required of him, as a part of his duties as such brakeman, to couple and uncouple cars and assist in removing and transferring them from place to place on the defendant's track, in defendant's yard, and in the coupling and uncoupling of said cars the duties of plaintiff required him to pass in between them while they were in motion; that while the plaintiff was then and there engaged in the services of defendant in the line of his employment, and in the act of coupling defendant's cars, he received a permanent injury of his right hand, causing the loss of his thumb and forefinger, and, as a result thereof, permanently lost the natural and proper use and strength of his right hand and arm, and caused him thereby to suffer great pain in body and mind, and put him to great expense for medical and surgical aid and nursing in trying to cure himself of said injuries; that said injury was caused by the negligent failure of the defendant in knowingly allowing and permitting the drawheads and dead-woods attached to said cars to become broken and out of repair, and also in allowing and permitting the dead-woods to be and remain of uneven height on said cars, thereby rendering it very dangerous and hazardous to couple the same, which facts were well known to the defendant and unknown to the plaintiff; that said injury was caused by the negligence of the defendant, and without any fault or negligence on the part of the plaintiff; that by reason of said injury the defendant became liable to plaintiff in damages in the sum of five thousand dollars ($ 5,000); that at the time of receiving said injury plaintiff was earning and receiving from the defendant for his services the sum of two dollars per day for his said services; that the said injury rendered the plaintiff unfit and unable to continue in the service of the defendant as yard-brakeman, and he was, for that reason, discharged from the service and pay of the defendant by the defendant; that thereafter, to wit, on the 31st day of January, 1890, the plaintiff called on the defendant and demanded of defendant the amount due him for said injuries, and requested the payment thereof; that defendant then promised and agreed to pay plaintiff therefor in full settlement and satisfaction for said debt and injury the sum of one hundred dollars in money and receive him back into their service, and re-employ him and give him a job of steady and permanent employment, and pay him therefor an amount per day for his services equal to the amount he was earning and receiving at the time of his severe injury; that said sum of one hundred dollars would be paid at once, and that he should be employed as soon as he was sufficiently recovered from his severe injuries as to be able to work; that the defendant required, as a condition to said promise and agreement, and as a further consideration therefor, that plaintiff should sign and execute a release to defendant, releasing defendant from all liability for damages and all claims and rights whatever growing out of said injury, and relinquishing all claims and rights to bring suit therefor; that the defendant promised and agreed that all the said promises and agreements would be faithfully and honestly carried out and performed by defendant in the event that the said promises, agreements and conditions were accepted by plaintiff. It was further provided and agreed by the parties that the said promises and agreements, when carried out and performed by defendant, should operate and be in full satisfaction and payment to plaintiff of all debts, damages and causes of action growing out of, or which might arise by reason of, said injury in any way. The plaintiff then accepted of said promises, agreements and conditions in full satisfaction and payment of his injuries; that afterwards, to wit, on the day of February, 1890, in pursuance of said promises, agreements, conditions and acceptance thereof as aforesaid, the plaintiff and defendant, at the office of the defendant, in the city of Jeffersonville, in said county, and the defendant then and there, for the purpose of carrying out the said promises and agreements, paid to plaintiff the sum of one hundred dollars as a partial payment of the same, and the plaintiff then and there accepted of defendant the said sum of one hundred dollars as a partial payment and satisfaction of the promises and agreements of the defendant as agreed, and the plaintiff then and there signed and executed to defendant the release required by the defendant and agreed to by the parties as aforesaid, and to the full and complete satisfaction of the defendant, which release was received and accepted by defendant and is now in its possession; that afterwards, to wit, on the first day of March, 1890, when plaintiff had sufficiently recovered of his said injuries as to be able to go to work, he called on the defendant and notified it of that fact, and demanded that the defendant re-employ him; whereupon defendant at once employed him and gave him a job of flagging its trains, in which employment defendant kept and retained him about three months, when, without any cause or fault on the part of the plaintiff, the defendant discharged him from its services and pay, without giving any cause or reason to plaintiff for so doing; that during all the time of said three months' re-employment the plaintiff honestly and faithfully and properly discharged all the duties assigned him; that ever since the discharged of the plaintiff last above named the defendant has refused, and now refuses, to receive the plaintiff back into its service and give him a job of steady and permanent employment, or give him employment of any kind, or pay him any money, though often requested by plaintiff to do so; that the plaintiff was able, ready and willing to continue in the service of defendant, at flagging trains, and is now, and has been at all times, able, ready and willing to flag trains, or do and perform any other service for defendant within his power to do, all of which facts, now and during all of said time, were well known to defendant; by reason of which facts and grievances plaintiff has, during all of said time, been out of employment and unable to earn any money, and has suffered great loss and damage thereby, in the sum of five thousand dollars; that the plaintiff has done and performed all the conditions, promises and agreements on his part to be done and performed by him in the premises as hereinbefore stated; that the defendant has failed and refuses to do and perform its promises and agreements in manner and form as above stated and set out. Wherefore," etc.

We think it readily appears from the foregoing complaint that the gravamen of the action is not the personal injury therein set out, but the breach of the contract pleaded. Kentucky, etc., Cement Co. v. Cleveland, 4 Ind.App. 171, 30 N.E. 802.

The liability of appellant for the injury is acknowledged by the agreement to compensate the appellee for the same. The question with which we are concerned, therefore, is not one of tort, but of pure contract. The appellee was injured by the appellant's negligence. The parties met and agreed to settle the controversy arising out of such injury, the appellant agreeing to pay the appellee in cash one hundred dollars, and to give him steady and permanent employment at a compensation equal to that he was receiving from the company prior to the sustaining of the injury. In consideration of the premises, the appellee agreed to execute to the appellant a written release, discharging the latter from all liability arising out of the personal injury sustained by the appellee, for which the appellant was liable to him.

There is no claim that the release was procured by fraud, nor can there be any question as to the sufficiency of the consideration, as a parol promise to take the party back into employment is sufficient to that end. 20 Am. and Eng. Encyc. of Law, 762, n. 1.

The release was in writing. It is alleged that the instrument is in possession of the appellant, but it is not shown that it or a copy thereof, had been demanded of the latter, and refused. It seems to have been the view of the pleader that it was necessary to make the release an exhibit. It is insisted on behalf of the appellant that, in order to make the excuse for not filing such exhibit valid, it should have been averred that the original or a copy of the instrument had been demanded of the appellant and refused. It is proper to state here that we do not regard the complaint as declaring upon a written instrument. The reasons for this must be...