Tylee v. Illinois Central Railroad Company

• Decision Date: 29 January 1915
• Docket Number: 17,959
• Citation: 150 N.W. 1015,97 Neb. 646
• Parties: GUS A. TYLEE, APPELLEE, v. ILLINOIS CENTRAL RAILROAD COMPANY, APPELLANT
• Court: Nebraska Supreme Court

150 N.W. 1015

97 Neb. 646

GUS A. TYLEE, APPELLEE, v. ILLINOIS CENTRAL RAILROAD COMPANY, APPELLANT

No. 17,959

Supreme Court of Nebraska

January 29, 1915

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

Helsell & Helsell, William Baird & Sons, Blewett Lee and W. S Horton, for appellant.

W. C Fraser and J. C. Kinsler, contra.

ROSE, J. MORRISSEY, C. J., BARNES and SEDGWICK, JJ., not sitting.

OPINION

ROSE, J.

The suit was brought to recover $ 900 alleged to be due plaintiff for his salary as traveling watchman for defendant from April 8, 1911, to April 8, 1912, at $ 75 a month. Plaintiff was injured March 6, 1911, in alighting from a moving passenger train operated by defendant. He pleaded that he settled his claim for resulting damages and signed a release in consideration of $ 10 paid to him by defendant and of an oral promise by the latter to pay his regular salary, while unable, on account of his injuries, to return to work; that in making the settlement defendant acted through its claim agent; that plaintiff was unable on account of his injuries to resume the duties of his employment before April 8, 1912; that defendant paid him his salary in full for March, 1911, but refused to pay it for any subsequent month. Defendant denied the execution of a release on the terms described in the petition, and alleged that its claim agent had no authority to make the oral promise pleaded by plaintiff. It is admitted that plaintiff was in the employ of defendant, and that his salary for the month of March, 1911, was paid; but it is alleged that he was not thereafter an employee of defendant, and that he is not entitled to any salary as such. From the judgment on a verdict for the full amount of plaintiff's claim, defendant has appealed.

One of the assignments of error challenges testimony of plaintiff on the ground that it varies and modifies the terms of a written instrument. The release signed by plaintiff makes no mention of a promise to pay his salary as a part of the consideration. After reciting the fact of the injury and the denial of liability on the part of the employer, the release reads:

"Now, therefore, in consideration of the sum of ten and 00-100 dollars ($ 10) to me this day paid by the Illinois Central Railroad Company in behalf of itself and any other companies whose lines are owned or operated by it, I do hereby compromise said claim and do release and forever discharge the said Illinois Central Railroad Company and all companies whose lines are leased or operated by it, their agents and employees from any and all liability for all claims for all injuries, including those that may hereafter develop as well as those now apparent, and also do release and discharge them of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injury above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes of action."

The oral testimony of plaintiff tends to show that the promise to pay his salary during the temporary disability resulting from his injuries was part of the consideration for the release. It is argued that proof of this nature varies and modifies the terms of the written instrument quoted and is consequently inadmissible. What plaintiff signed was an agreement releasing defendant from liability for personal injuries. There is no attempt to vary the terms of the release itself. Plaintiff is not seeking damages for the tort. In effect, the action is one on an oral promise to recover part of the consideration for the release. The rule of law applicable to the present inquiry is that an oral promise by an employer to pay an employee his regular salary during a temporary disability may be shown by parol to be a part of the...