71 N.Y.S. 365 | N.Y. App. Div. | 1901
Lead Opinion
This action was brought to recover damages for the breach of an alleged contract. The complaint alleges, in substance, that the plaintiff, on the 4th of July, 1893, received personal injuries of a serious, character by the premature explosion of a defective distress signal which he discharged by the direction of the defendant while on. the latter’s yacht, and that on the following day a contract was made by which the plaintiff undertook to render services to the defendant as a valet, and the defendant agreed to employ him in that capacity for life, at an agreed compensation of eighty dollars per month, together with board and lodging, and as a part of the consideration of the contract thé plaintiff agreed to and did refrain from bringing an action against the defendant to recover damages sustained on account of his injuries; that the plaintiff performed the contract on his part until August 15,1897, when he was, without fault or excuse,, so far as he was concerned, summarily discharged.
The answer substantially denies the material allegations of the complaint and sets up the Statute of Frauds as a defense to the cause of action pleaded. The plaintiff had a verdict for $5,000, and from the judgment entered thereon the defendant has appealed. We are ■ of the opinion that the judgment must be reversed — (1) because the verdict is against the weight of evidence; (2) because errors were committed in the admission of evidence; (3) because errors were committed in . the instructions given to the jury; (4) because the
First. The action, as already indicated, was brought to recover damages for the breach of a contract. The issue under the pleadings was (1) whether a contract had been made, and (2) whether there had been a breach of it. To establish the issue as thus formed, the testimony on the part of the plaintiff — which consisted solely of that given, by himself, unsupported by any other witness — was substantially as follows: That on the 4th of July, 1893, he was in the employ of the defendant as a steward on his yacht; that he was directed by the defendant at that time to discharge some fireworks, and in carrying out such direction, by reason of the negligence of the defendant, was seriously injured — the sight of one eye being entirely destroyed, besides sustaining other grave injuries; that on the following day he was sent to Bellevue Hospital, and just before he left the yacht the defendant said to him : “ ‘.Mowbray, I am awfully sorry that this accident occurred, but,’ he said, ‘it is my fault, and I don’t want you to mention anything at all about it to the newspaper reporters, and, if any lawyers come to see you and try to make you bring a suit against me for .injuries, I don’t want you to have anything to do with them. If you conform to my wishes and do not bring any suit against me, don’t make any claim against me, and keep the names of my guests out of the papers, I will employ you for life.’ ” He also testified that he went to the hospital and remained there until about the twentieth of the same month, when he left-— went to the office of the defendant and had a further talk with him, in which the defendant said: ‘“I will employ you for the rest of your life as ■ valet at a salary of $80 a month and found,’ ” and that he acquiesced in this proposition and immediately thereafter entered upon the discharge of his duties as a valet, and continued to perform the same until the 15th of August, 1897, when he was, without any cause or provocation whatever, discharged.
The defendant denied that he ever made the contract alleged, or any contract whatever, to employ the plaintiff for any definite time; he denied that he requested the plaintiff to refrain from bringing an action to recover for his injuries, or to keep the names of his' guests on the yacht out of the newspapersin short, he denied all of the testimony of the plaintiff, so far as the same related to the
It will be observed that in the letters of the plaintiff, or in the
The plaintiff, of course, was not entitled to recover unless he established, by a preponderance of evidence, not only the existence of the contract alleged in the complaint, but also the breach of it on the part of the defendant. When his letters and the letter of his attorney written immediately prior to the commencement of the action, are read in connection with the testimony of the plaintiff — all of which is denied by the defendant — it at once becomes apparent, as it seems to us, that he wholly failed to fulfill the require-, ments of the law in maintaining a cause of action. The attempted establishment of his claim rests entirely upon his unsupported testimony, the effect of which is almost wholly, if not entirely, destroyed by the letters which he himself has written, to say nothing of the letter which his attorney wrote immediately prior to the commencement of the action. If the plaintiff had a contract of the character alleged in the complaint, he would hot have written the defendant as indicated in these letters.- He would have demanded what was his due — his legal rights — and not have been seeking something from him as a favor. This would have been natural. Any other coursefis inconsistent with the existence of a contract. When this is considered in connection with the further fact that the defendant
Second. The plaintiff was permitted to prove the treatment which he had undergone for the injuries sustained by him by reason of the explosion •—■ the pain he had suffered from such injuries ; how the loss of one eye had affected the sight of the other, and the possibility that it would ultimately destroy it. This evidence was clearly inadmissible. It had no bearing whatever upon the issue involved and should have been excluded. It was of the kind and character to prejudice a jury, and that it had that effect is sufficiently evidenced by the verdict. The objection to it should have been sustained and the evidence excluded.
Third. The court, in submitting the case to the jury, instructed them that they might take into consideration the fact that the defendant had failed to call certain persons who were guests upon his yacht at the time the plaintiff was injured. This was excepted to and we think the exception was well taken. It is not claimed — indeed, it is not even suggested — that these guests, or any of them, heard the conversation which the plaintiff claims resulted in the contract alleged, or that anything they might have testified to would have thrown any light on that subject whatever; on the contrary, the plaintiff himself testified that no one was present when he had this talk with the defendant. The jury were also instructed that they might consider the fact that it appeared that a Miss Clemmons, whom the plaintiff testified, at least inferentially, was the real cause of his discharge, was in the court room during the trial and was not called as a witness to deny certain statements made by the plaintiff. This was excepted to and we think this exception was also well taken. There is nothing in the record before us to show that Miss Clemmons was in the court room at all during the trial.
Fourth. We are also of the opinion that the judgment must be reversed on the ground that the trial court abused its discretion in permitting the plaintiff’s attorney to cross-examine the defendant on immaterial and irrelevant matters — the answers to which could only tend to humiliate and degrade him. It is unnecessary to refer to
Van Brunt, P. J., Hatch and Laughlin, JJ., concurred.
Concurrence Opinion
I concur in the conclusion that the verdict is against evidence, and, consequently, that a new trial should be ordered.
Judgment reversed, new trial ordered, costs to appellant to abide event.