49 W. Va. 494 | W. Va. | 1901
On or about November 7, 1896, G. W. Rhoades, then employed as a section hand by the Chesapeake and Ohio Railway Company, received an injury, while assisting in replacing on the track a derailed freight car on the Cabin .Creek branch of said railroad, which necessitated the amputation of one of his legs, on the 27th day of December, following. Soon after he was discharged from the hospital, negotiations for a settlement with him were commenced by the claim agent of the railway company, 'which resulted in the preparation by said agent, and signing by Rhoades, of the following instrument:
“Coalbuiig, W. Va., April 27, 1897.
I hereby agree to accept six hundred dollars in full settlement, satisfaction and discharge of all claims arising from or growing out of personal injuries, received by me on or about Nov. 7, 1896, while working as a laborer at wreck at Dry Branch on Cabin Creek, in the service of C. & 0. Ry, said amount to be paid without delay by voucher through agent at Charleston, W. Va.- In addition I am to be given a job as watchman or in other service which I can perform. It being understood that I stand in same relation to the company as any other employe injured or not injured and will be removed only for cause and will have a*496 steady job so long as I give satisfaction to the foreman or superintendent under whom I work.
[Signed.] G. W. Rhoades/'
It was left in the possession of Rhoades, and the agent said he would talk with the superintendent upon his return to Huntington and if he agreed to the terms of the proposed settlement, a voucher would bo sent to Charleston and the amount paid. He found'the adjustment satisfactory to the superintendent, who directed him to prepare a voucher for the amount. Not having a copy of the writing upon which he and Rhoades had agreed, and wishing to embody its terms in the voucher, the agent relied upon his memory in the preparation of the voucher, which he claims Rhoades signed, May 1, 1897, and which is as follows:
“Chesapeake & Ohio Railway Company, 139634. Claim No. 2997.
To George W.' Rhoades, Dr.
1897, Address, Charleston, W. Va.
April 26th. For amount agreed upon in full settlement, satisfaction and disenarge of all claims or cause of action arising from or growing out of personal injuries received by me on or about Nov. 7, 1896, while on duty as laborer at Dry Branch at Draimnent of train 113 on Cabin Creek branch,_$600.00
O. K.
Charge to Amount Certified Approved
Hun. Div. $600.00 J. W. Winget,
C. T. 52 Claim Agent.
Received, Charleston, W. Va., May 1st, 1897, of the Chesapeake and Ohio Railway Company the sum of six hundred dollars in full compromise, satisfaction and discharge of all my claims or causes of action and particularly of all claims or causes of action arising out of the personal injuries received by me, Nov. 7, 1896, as per above voucher in addition to this I am to be given an opportunity to work for the company under like conditions and circumstances as any other employe injured or not injured so long as I give satisfaction to the foreman or superintendent under ivhom I work.
Geoege W. Rhoades. [Seal.]
J. W. Winget:
L. H. Moseman: Witnesses.
The six hundred dollars was paid at the Charleston office of the company on or about May 1, 1897, and on that occasion Win-*497 get, the claim agent, called upon Bhoades for a copy of the writing of April 27, 1897. It being produced and a copy taken on the company’s letter press, the agent took said copy with him. It was attached to and returned with the other papers. Bhoades swears he never signed the voucher of May 1st, but Winget and Moseman, the subscribing witnesses, testify that he did.
On June 1, 1897, Bhoades went to work for the company in pursuance of their agreement, and, for about nine months thereafter, was kept busy at tamping ties, grassing the track, tightening bolts and watching at a cut near the town of Milton. Then the company not requiring a watchman at said cut any longer, he was sent to Hinton to tend the switches in the yard. He refused to do this work on the ground that he could not perform it, owing to the distance between the switches being so great that he could not travel it in the limited time permitted. He was then brought back to Milton, where he worked awhile longer, grassing the track and tightening bolts. In the month of July, 1898, he was discharged. He claims he was unable to do the work required of him at that time. As to the character of this work, Clifford, the foreman, says “Spencer (supervisor of track) told me and I told him (Bhoades) that he would have to tighten up bolts and raise low joints, for me to give him a beat. I gave him about a mile, and a half of bolts to tighten up and about a quarter of a mile of grassing to do. Well, he done that piece of grassing all right and worked some at the bolts, and I asked him to go to the east end — the east end of the section — and he refused.” That Avas about three miles from where he had been working. Clifford further describes the work as follows: “It is putting in bolts, tightening up bolts, and where tics aire churning at the ends, picking away from the end and letting the water out, throwing up gravel, grassing and such work as a Avatchman generally does.”
Spencer’s statement, relating to the dismissal of Bhoades, is as folloAvs: “There was a few joints in the cut near where Mr. Bhoades lives — I don’t suppose they were farther from his door than from hero across the street. I wanted him to go there and help the Avatclunan take them up, because I didn’t want to take a gang over there. Well, the foreman came to me, and told me that he said he wouldn’t do it. Mr. Bhoades met me the next morning at Milton, and says to me, 'What is it that you Avant me to do?’ I says 'Didn’t the foreman tell you?’ 'Yes,’ he said,*498 ‘He told mo that be wanted me to carry ties and put in ties.’ Says I,.‘Mr. Rhoades, I don’t think that he told you that. What is it?’ ‘Well, he wanted me to help raise the lower joints.’ ‘That is it exactly. I can’t get a gang over there now, and then something else will turn up.’ Tie says ‘I am not going to do it.’ I says ‘Are you going to quit?’ He says ‘No, I am not.go’ing to quit.’ He saj^s ‘If you want me to quit, discharge me.’ I says ‘I will discharge you in fifteen seconds,’ and I did it right there.”
Rhoades says that after he was given the beat, he grassed the track and tightened part of the bolts, and then they stopped him and wanted Mm to work on the section, “tamp' ties, put in ties and do general repairing.”
Soon after he was discharged, Rhoades brought an action of assumpsit in the circuit court of Kanawha County, against the company, upon the agreement of April 27th, laying his damages at ten thousand dollars. A demurrer, interposed by the defendant, being overruled, a plea of nomassumpsit was entered and issue was joined thereon and a trial was had, resulting in a verdict of one thousand dollars for the plaintiff. A motion to set aside the verdict and grant a new trial was made and overruled and an exception taken to this as well as several other rulings of the court and judgment was rendered on the verdict.
The overruling of the demurrer is made the basis of the first assignment of error. Under this head, it is argued that the paper, dated April 27, 1897, is not a contract of employment, but at most a mere agreement to make such a contract in the future, because it leaves for future determination the wages to be paid, the kind’of work to be performed, and the term or period of employment. It is also said that the declaration is founded wholly upon that-paper and does not go beyond it, but it is found that in the declaration the substance o£ the agreement is alleged, and further that afterwards the “defendant ratified and confirmed said agreement and paid to the plaintiff the said sum of six hundred dollars, and gave to the plaintiff a job as watchman on its said railway, said job commencing to-wit: about December 1, 1897, at the price of one dollar per day as wages as such watchman and continuing plaintiff as such watchman from the date last aforesaid until to-wit: the 11th day of July, 1898.” The declaration thus makes out a complete contract, certain and definite in all respects. It also alleges a breach of this contract and so establishes a cause of action. It is contended, however,
This view of the contract, declared upon, is not in harmony with the law as expounded in the text books and decided cases. In Beach on Cont., s. 457, it is said, “Where an employe, in consideration of an agreement on the part of the employer to give him work as long as he is able to perform it, releases a claim for damages, said to have been caused by the employer’s negligence, the agreement is not void because lacking mutuality. By releasing his claim, the employe has paid in advance for an optional contract, and he has the right to have it remain optional.” In Smith v. St. Paul R. Co., — Minn. —, 62 N. Rep —, Collins, Judge, says: “The consideration for the defendant’s agreement to employ was paid by the release of tbe plaintiff’s claim for damages quite as much and as effectually as if the plaintiff had actually paid cash. By releasing his claim for damages, the plaintiff paid in advance for' the privilege or option of working for the defendant.” This is cited in support of the text in Beach. It is true the same author says, at sec. 75, cited for defendant, “A memorandum reciting the terms of a contract of employment which are, however, ‘subject to the condition^ and regulations of a contract which is to be substituted for the memorándum’ imposes no legal obligation.” But this in no way conflicts with what is said in sec. 457, and its utter inapplicability to the case stated in the declaration, as well as to' the terms of the paper, dated April 27th, is clearly apparent. Section 75 evidently relates to an agreement' to give employment, not made upon a valuable consideration but in which there are simply concurrent promises, the one being'the consideration for the other and the terms and conditions of these promises not complete. The paper declared upon here shows upon its face a consideration valuable in law. On the side of the employe, it is an executed contract, not of the service contemplated, but as to the opportunity to serve and receive wages therefor. By his release he has paid for this option. Moreover, this paper contains no qualifying or limiting clause, such as is found in the case put in said section 75.
It is true that the case of Pierce v. Tenn. Coal, Iron & R. R. Co., 81 Fed. Rep. 814, cited for defendant, sustains its position, but that case went up to the Supreme Court of the United States
In delivering the opinion of the court, Mr. Justice Gray said, “An intention of the parties that, while the plaintiff absolutely released the defendant from that claim, the defendant might, at its own will and pleasure, cease to perform all the obligations which wore the consideration of that release, finds no support in the terms of the contract, and is too unlikely to be presumed.” Of the same case the supreme court of Alabama said, “The eon-
At the instance of tbe plaintiff below and over tbe objection of tbe defendant, tbe following instruction was given:
“Tbe court instructs tbe jury that if they believe from tbe evidence that tbe parties to this action compromised their difference as set forth in plaintiff’s declaration and that the writing of April 27, 1897, marked ‘Exhibit No. 6/ was signed by tbe plaintiff Bhoades after being prepared and written by defendant’s agent and that said writing embodied the actual terms of such compromise and was accepted and acted upon by defendant then tbe defendant is bound by tbe provisions of said compromise.” To tbe giving of said instruction, the defendant excepted.
At tbe request of tbe defendant, tbe following instructions were given:
1. “If the jury find from the evidence that the writing of May 1, 1897, marked Exhibit G. W. B. purporting to be signed by Geo. W. Bhoades, was in fact signed by him and tbe stipulations and conditions therein contained were different from tbe propositions made in writing by him on April 27, 1897, ‘Exhibit No. 6,’ the jury should take tbe writing of May 1, 1897, as embodying the terms upon which the parties finally agreed to compromise; and if tbe jury further believe from the evidence that tbe defendant bad given tbe plaintiff work, as it had agreed to do and the plaintiff failed to work to tbe satisfaction of bis foreman or superintendent as provided in said agreement then*502 the defendant liad the right to discharge the plaintiff, and it would not be liable for any damages in this suit.”
2. “The court instructs the jury that if they find from the evidence that at the time the plaintiff entered into the employment of the defendant after his injury he made no fixed or specified time or period which he agreed to work.for the defendant then he had the right to cease working for the defendant at any time, and the defendant had the right to cease employing him at any time.”
3. “The court instructs the jury that if they find from the evidence that the defendant gave to the plaintiff such work as he could do and had done and the plaintiff refused to do such work so given him then the defendant had the right to discharge him from its service and you should find for the defendant.”
It is contended that it was error to give plaintiff’s instruction, first, because by the paper dated May 1, 1897, the writing of April 37, 1897, was discharged and no longer formed the contract between the parties, the two papers being different and inconsistent and the former under seal; second, because it ignored the transaction of May 1st, and thus violates the rule requiring instructions to cover all essential elements of the case, to the end that the jury may not be misled; and, third, because it is inconsistent with defendant’s instruction No. 1, based upon the writing of May 1st.
If two agreements of different dates, made between the same parties and covering the same subject matter, are inconsistent, the one earlier in date is impliedly discharged by the other. Clark Con. Gil. In Renard et ais. v. Sampson et als., 13 NT. Y. 561, the rule is stated as follows: “A written contract executed between parties, not in performance of a distinct and separate provision of prior negotiations and agreements between them, but covering in its terms or legal effect the whole subject matter thereof, extinguishes and supersedes all such prior negotiations and agreements.” In Paul v. M.eserv&y, 58 Me. 419, the law is'stated thus: “One contract is rescinded by another between the same parties, when the latter is inconsistent with, and renders impossible the performance of the former.” It is claimed that these two contracts or writings are different because the first states that Rhoades “is to be given a job as watchman or other service” which he can do and there is to be no discharge without “cause,” while in the second he is to be given
But upon the defendant’s theory that the two papers are separate and distinct and inconsistent and the first, therefore, discharged by the execution of the second the other two criticisms lipón the instruction, given for the plaintiff, must be disregarded for the reason that the execution of the writing of May 1st, was in issue and to be determined by the jury. This writing was not mentioned in any of the pleadings of the case, but came into the case as evidence under the plea of non-assumpsit. The plaintiff denied on oath that he had signed it. Two witnesses testified that he did sign it in their presence. This made it necessary for the jury to say which of the two writings constituted the contract between the parties. Section 40, chapter 125 of the Code, reading, “Where any declaration or other pleading alleges that any person made, indorsed, assigned or accepted any writing, no proof of the handwriting of such person shall be required, unless the fact be denied, by an affidavit with the plea which puts it in issue,” does not apply to writings so brought into the case. At common law, the adverse party had the right to require precise proof of all signatures and documents, malting part of the claim of the party producing them, but this has been greatly modified — in some states, by rules of court, and in others by statute. 2 Greenl. Ev. s. 16. In Virginia, an act was passed February 5, 1828, dispensing with proof of the handwriting, “if the declaration alleges that they were signed by any person,” unless an affidavit be filed disputing its genuineness. In 1850, after this statute was construed by the court in the ease of Kelley v. Paul, 3 Grat. 191, the legislature passed the act as now found in said section 40, applying the rule to any writing, alleged in any pleading to have- been made, etc. The instruction for plaintiff is not open and the other objection that it ignores the transaction of May 1, 1897, upon the principles announced in the cases of McCreery v. R. R. Co., 43 W. Va. 110, and Price v. Ry. Co., 46 W. Va. 538, because an instruction for the defendant was given, covering said transaction as a part of its theory of the case.
The last assignment of error is grounded upon the refusal of the court to set aside the verdict and allow a new trial, it being insisted under this head that the work the plaintiff refused to do was such work as he could have done and not so laborious as some of the work he had already done; that as, under the contract, the defendant might discharge the plaintiff, when he ceased to “give satisfaction to the foreman or superintendent under whom” he worked, and he had complained all the time of the work assigned him, he was rightfully discharged under that clause of the contract; that it is uncontradictcd that the plaintiff refused to do work assigned him; and that, if the recovery might be for the probable life of the plaintiff, there was no evidence of his habits and expectation of life, and, therefore, no evidence upon which the damages allowed could have been assessed.
The refusal to do the work assigned at the time of the dis
The principles governing the assessment of damages and the measure of damages in cases of this kind have been given. Tenn. Coal, Iron & R. R. Co., supra. They are very similar to those applying in eases of damages for injuries to the person in which the amount is-dependent upon loss of capacity for labor. In tnese cases, the standard mortuary tables are some times admitted as evidence on the question of the expectation of life. 5 Am. Eng. Ency. Law, 41-42 note. But it is not always done, nor has it been held necessary. Here the age and physical condition of the plaintiff were proved, and no reason is perceived'why plaintiff’s expectation of life should not have been left to the jury in this case, as is so often done in others, involving the same question, without more evidence bearing upon it than was before the jury.
There being no error in the judgment, it is affirmed.
Affirmed.