73 Ind. App. 332 | Ind. Ct. App. | 1919
This is an action by appellee against appellant, based on a claim for additional compensation for services rendered by him as brakeman during a pe
Appellant has assigned the actions of the court in overruling its demurrer to the second paragraph of .complaint, in sustaining appellee’s demurrer to the fourth and fifth paragraphs of its answer, in overruling its motion for judgment on the answers to the interrogatories, and in overruling its motion for a new trial, as the errors on which it relies for a reversal of the judgment in this cause. We shall proceed at once to consider the action of the court- in overruling appellant’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict, as the conclusion we have reached in that regard renders it unnecessary to consider any of the other alleged errors assigned.
The issues and facts in this case and the questions presented thereon are very similar to those in the recent case of Pittsburgh, etc., R. Co. v. Marable (1920), 189 Ind. 278, 124 N. E. 393, 126 N. E. 849. In that case the court stated in substance that, while a person employed to perform services for a stated remuneration-during a specified period may be entitled under some circumstances to recover additional compensation for extra services rendered at the request of his employer, even though the contract of employment makes no provision for such extra compensation, the right to such compensation depends on the existence of a contract to that effect, either expressed or implied; that whether
In the instant case the complaint does not allege that there was any express promise on the part of appellant to pay appellee any additional compensation for any part of the extra services alleged to have been rendered. It follows that appellee must recover, if a recovery is had, upon the theory of an implied promise to pay for the services which he claims were outside of his regular employment. The general verdict of the jury must be accepted as a finding that there was such an implied promise on the part of appellant. We must therefore consider whether the answers to the interrogatories are in irreconcilable conflict with the general verdict in that regard.
These answers show that, on February 4, 1914, appellee filed an application with appellant, in which he applied for employment as porter, or for such other service as might be necessary or required of him by appellant from time to time; that in such application appellee agreed that, if he was accepted as an employe in pursuance of said application, he would observe all of appellant’s rules and regulations; that, in pursuance of said application, appellee was employed by appellant to work on its passenger trains running from Louisville, Kentucky, to Logansport, Indiana, and under such employment did work for appellant on such trains from time to time, from February 18, 1914, to August 15, 1915; that, while so working, appellee was required to keep the cars sanitary, to pick up papers and waste in the cars, to sweep the floors of the cars, to look after the' closets and clean the same, to regulate the heat and
From a consideration of these facts we are clearly of the opinion that there was no implied agreement for the payment of additional compensation for any part of the services so rendered; and, as this action is not based on an express promise to pay for the alleged extra services, it cannot be said that there was any agreement on which the general verdict can stand. This being true, the judgment must be reversed and, while we might direct the trial court to sustain appellant’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict, we are of the opinion that the ends of justice will be best subserved if another