56 Ind. App. 562 | Ind. Ct. App. | 1913
In this case appellee recovered a judgment against appellant for damages claimed as a result of the breach of a parol contract of employment. As shown by the complaint the contract upon which the action is based was entered into between the appellee and appellant in the year 1882, at a time when appellee had sustained an injury while in the employ of appellant and was making a claim against it for damages on account of such injury. It is claimed by appellee that as a compromise and settlement of the claim for damages he was making against the company, appellant proposed to give him permanent employment and to secure to him a life position suited to his capacity in connection with the road which it operated, and to pay him as compensation for services to be so rendered thirty dollars per month for each month of twenty-six days of eleven hours each. Appellee further claims that he accepted this position and released all claims for damages against appellant and entered its employment under such contract in the capacity of a watchman at a crossing; that he continued to work in such capacity at Franklin and at Indianapolis, to which place he was transferred, until he was discharged; that he was discharged without cause; and that appellant has since such discharge refused to furnish him any employment,
In the case of Null v. White Water, etc., Co. (1853), 4 Ind. 431, a construction was placed upon §218 of an act passed in 1852, 2 R. S. 1852 p. 77. This action is identical with the section now under consideration. The court in that case held that a properly instituted claim voluntarily abandoned could not be made available under the statute in a subsequent action to save it from the operation of the statute of limitations. To the same effect are the decisions of other courts in states having statutes similar to ours. Pardey v. Town of Mechanicsville (1897), 101 Iowa 266, 70 N. W. 189; Archer v. Chicago, etc., R. Co. (1885), 65 Iowa 611, 22 N. W. 894; Cumming v. Jacobs (1881), 130 Mass. 419; Harris v. Dennis, supra. Any decision which may be found at variance with the principle here announced depends upon statutes essentially different from ours. Our statute was not intended to authorize a person to toll the statute of limitations by commencing an action and after
Note. — Reported in 103 N. E. 672. As to the choice of remedies given servant for wrongful discharge, see 51 Am. St. 515. As to the remedy of a wrongfully discharged servant by action for damages for breach of contract, see 6 L. R. A. (N. S.) 49. On the right of a wrongfully discharged servant to recover wages for contract period subsequent to discharge, see 5 L. R. A. (N. S.) 439; 28 L. R. A. (N. S.) 577. On the question of the right to service reward or bonus, of servant discharged without cause before stipulated term of service see 44 L. R. A. (N. S.) 1214. As to the right of a servant to recover wages subsequent to a wrongful dismissal, see 13 Ann. Cas. 112; Ann. Cas. 1912 B 365. See, also, under (1) 26 Cyc. 991; (2) 26 Cyc. 998; (3) 25 Cyc. 1068; (4) 25 Cyc. 1106; (5) 25 Cyc. 1075; (6) 25 Cyc. 1313; (7) 3 Cyc. 352.