20 Ind. App. 54 | Ind. Ct. App. | 1898
The court rendered judgment for the defendant upon a special verdict in an action brought by the appellant against the appellee. The controlling facts of the lengthy special verdict were as follows: The railroad company had two classes of freight brakemen, one called regular freight brakemen, and the other extra freight brakemen. The appellant entered the service of the appellee on the 6th day of September, 1892, and during all the time of his service was an extra freight brakeman. He suffered a personal injury while in such service, on the 29th of October, 1S92. On the 25th of March, 1893, the appellant signed a writing, referred to in the special verdict as a proposition and as a written option and as an offer of compromise, as follows: “Elkhart, Indiana, March 25, 1893. For and in consideration of the sum of one dollar, to me in hand this day paid by the Lake Shore and Michigan Southern Railway Company, I hereby stipulate and agree to and with the skid company that I will accept from it the sum of three hundred dollars, and further that I am to remain in the service of said company as brakeman as long as I want to, providing my work shall prove satisfactory to said company, as full settlement and satisfaction of all claims and demands of every kind, nature and description, which
“Witnesses: C. A. Theis, C. C. Needham.
“Elkhart, Indiana, March 25th, 1893.
I, the aforesaid W. H. Phares, do hereby acknowledge receipt from the Lake Shore and Michigan Southern Railway Company, by the hands of C. C. Needham, its agent, the said sum of one dollar mentioned in the above agreement. W. H. Phares.
“Witnesses: C. A. Theis, C. C. Needham.”
On the 10th day of May, 1893, the appellant signed a writing as follows:
“Form No. 1284.
“Whereas, on the 29th day of October, A. D. 1892, the undersigned, while in the employ of the Lake Shore and Michigan Southern Railway Company as freight brakeman, received certain injuries as follows, to wit: While uncoupling engine, had his left hand caught between pin and end sill of car C. L. & W. 3718, one finger amputated and another bruised, while in the discharge of his duties, at or near Dune Park Station, in the State of Indiana; and whereas, I, the said William H. Phares, believe that my said injuries are the result of the negligence of said railway company, its officers, agents and employes; and whereas the saidrailway company denies any and all negligence on the part of itself, its officers, agents, and employes, and denies any and all liability to me for damages for the injuries so as aforesaid by me sustained; but by reason of an
“Witness my hand and seal, at Elkhart, Indiana, this tenth day of May, A. D., 1893.
“William H. Phares. (Seal.)
“Signed, sealed and delivered in presence of C. C. Needham. J. W. Gainard.
“Lake Shore and Michigan Southern Railway Company, to William H. Phares, Dr. Issued April 28, 1893, care of A. B. Newell, Chicago, 111. For settlement in full of all claims and demands t'o date, especially for personal injuries sustained at Dune Park, Indiana, October 29th, 1892, as per attached form G. S. 1284. $300.00.
“Received, Elkhart, May 10th, 1893, of the Lake Shore and Michigan Southern Ry. Co., three hundred dollars in full of the above account.
“$300.00. William H. Phares.
“Correct. W. H. Cahniff, Gen. Sup’t.
“Audited. C. P. Lehand, Auditor.
“Approved. P. P. Wright, Ass’t Gen’l Manager.”
It was found that the offer of compromise referred to in the writing of Blay 10, 1893, was the same offer of compromise contained in the writing of Blarch 25, 1893; that this offer of March 25, 1893, was accepted by the appellee by C. C. Needham, claim agent, before the execution of the written release and written receipt dated May 10, 1893; that said Needham agreed with the appellant that the terms regarding appellant’s employment contained in the written option of Biarch 25,1893, should be embodied in the written papers dated Blay 10, 1893, which were signed by the appellant.
It was also found that the appellee, on or about the 10th of Blay, 1893, accepted a proposition made by the appellant in said writing dated Blarch 25, 1893,
It was further found that the principal and most valuable consideration in said compromise and agreement was the agreement by the appellee to furnish the appellant employment as brakeman as long as he wanted it and gave satisfaction in his work; that at all times from the 10th of May, 1893, until the bringing of this suit he was ready and willing to perform the duties of freight brakeman in the service of the appellee, and to give satisfaction therein, whenever the appellee would permit him to perform said work, and he went to the appellee, its officers and agents repeatedly, asking permission to work for the appellee as a freight brakeman, which he offered to do to the satisfaction of the appellee; that the appellee did not furnish him work as freight brakeman from the time of said compromise settlement until the trial, to exceed an amount (which it paid) of $173.90; that his service as a freight brakeman was worth $50.00 per month from May 10, 1893, to October 23, 1894 (the commencement of the action), and to March 16, 1896 (the time of the trial); that in August, 1895, he rented a farm for two years; that he used diligence in trying to obtain employment, etc., and had been able to earn in the aggregate ten dollars per month during the period between May 10, 1893, and the trial; that his loss and damage by the reason of the failure of the appellee to employ him as a freight brakeman for the remainder of the time for which he wanted said employment after the date of the trial would be one dollar.
The claim agent agreed with the appellant that the contract releasing the appellee should contain such a provision conerning the employment of the appellant as that contained in the appellant’s proposition, but when the release came from the general officers to the claim agent to be signed by the appellant, and the money consideration was paid, and the release was finally executed,it did not correspond with appellant’s proposition and the claim agent’s promise.
There is no finding of any mistake or of fraud or fraudulent conduct, no indication that the appellant did not know the contents of the papers which he' signed, dated the 10th of May, 1893, which is the date throughout the verdict referred to as the time of the acceptance of the offer of compromise by the appellee and as the date of the settlement between the parties. The contents of this instrument of release clearly indicated to the appellant that his proposition wras not accepted as to all its stipulations by the appellee, and that it would settle upon different terms as set forth in the form of release sent by the general officers. As
The appellant was paid a specified sum for his services rendered after the compromise. They were all rendered in the capacity of an extrafreight brakeman. It does not appear that this sum was not full payment for the services actually rendered. If he had been employed as a regular freight brakeman he would have earned a larger sum. But the appellant had been employed only as an extra freight brakeman up to the time of his injury, and he served and was paid in that capacity after the compromise. The contract to re-employ him as a freight brakeman is properly construed by considering the nature of his previous employment, and by looking to the manner in which the parties freely treated the contract and acted upon it, the appellant serving as an extra, and accepting pay as such. The judgment is affirmed.