149 Ky. 449 | Ky. Ct. App. | 1912
Opinion of the Court by
Reversing.
Frank Alexander, an infant, through L. E. Alexander, his father, as his next friend, in March, 1911, -sited the Elk Valley Coal Mining Company ■ to recover fob personal, injuries-suffered by him while laboring-in'the
The evidence developed without conflict that in addition to the $250 in cash paid to the guardian, a small house and lot worth from $200 to $250, was to be conveyed by the company to the boy. The company insisted that this was the sole and entire consideration for the settlement, while Willis & Meredith insisted that there was an additional consideration, in nature an undertaking by the company to give the boy lasting
“No. 1. If the jury believe from the evidence that the consideration for the settlement of the suit of Frank Alexander against the Elk Valley Coal Mining Company was $250, and the house and lot named in the evidence, and no more, they will find for Willis & Meredith against said company in the sum of $125, and in the further sum of one-half of the value, as they may ascertain same from the evidence, of said house and lot at the time of said settlement, and no more.”
Coming now to the other side of the question. This court has determined that a contract for permanent employment is a good consideration for a settlement of a personal injury claim; and that where, coupled with the payment of a negligible sum of money such an undertaking is entered into by the compromising defendant, the amount of compensation becomes so uncertain as that the plaintiff’s attorney should not be restricted to his contract contingent per centum of recovery, but should recover upon a quantum meruit. Proctor Coal Co. v. Tye & Denham, 123 Ky., 381. But here we have a different state of facts presented. Instead of a sum of irioney so small as to be inconsequential, as in the
, “No. 2. If the jury believe from the evidence that in addition to the payment of said $250 and said house and lot, the Elk Valley Coal Mining Company, in settlement of said suit of Prank Alexander against it, agreed to give him permanent employment, they will find for Willis & Meredith against said company, in addition to the sum which.they may find for them under the first instruction, such sum- as they may find from the evidence to be equal to one-half of the value of said contract for permanent employment to said Prank Alexander at the time of the making of • said settlement; but the total sum which the jury may find for said Willis & Meredith under both the first and second instructions shall not exceed the sum of $2,500, the amount named in the petition.” .
The $250- paid by the company to the physicians who attended upon the boy, was paid in discharge of a direct obligation owed by the company. It employed the- physicians at the time of the accident. The boy owed them nothing. The company’s discharge of this, its own debt, was no part of the consideration paid in compromise of the suit. There was not enough of testimony to embrace the year of schooling in the last set out'instruction, nop the employment of the father; even if. the .-latter could properly be considered a payment to the son."
The judgment is reversed and cause remanded for a hew trial consistent herewith.