*1 IN THE SUPREME COURT. R. R. Wacksmu^h be appeal dismissed, of defendant is if it already entered for the has not plaintiff, court below been done. dismissed.
Appeal LINE RAILROAD WACKSMUTH v. ATLANTIC COAST LOUIS COMPANY. (Filed November, 1911.) Objections Exceptions Appeal Wit- Error — —Answers Out —Procedure. ness —Evidence—Motion Strike by competent question is not an tbe to a If answer witness excepted to, competency not be considered tbe of tbe answer will object- question. appeal an to tbe Tbe under noted ing party excepted time either to. tbe answer should judge evi- trial to strike it from the it made or move tbe dence. Negligence—Relief Department Acceptance Ben-
2. Railroads — — Contract —Parol Evidence. efits —Written regulations ordinarily tbe used in Tbe “benefits” word hospital department company’s not include relief does railroad! by attention; acceptance and as it is tbe and medical treatment department benefits thereunder which of tbe member of recovery damages per- cases, may, proper for a 'in bar bis for company, injury negligently tbe and as tbe sonal inflicted any part dispute, acceptance, is not included when act regulations, may in tbe contract embraced of tbe written disproved con- parol circumstances tbe shown it. with nected Negligence—Relief Department Acceptance Bene- 3. Railroads — — Contracts,—Evidence. fits — inju personal an action When defense company employee, relies railroad inflicted ries employee as a member of benefits department a bar under tlie rules tending avoid department, accepted bar, under bad tbe benefits that he to show things in do certain it would1 of the defendant assurance etc., keeping employee, failed regard as an bad relying that, promise, FALL TEEM, 1911. O.]
Wacksmtjth v. R. R. benefits; and evidence in this case *2 Held sufficient to sustain verdict in on the favor issue as to. whether the injury, voluntarily accepted after his the benefits under his con tract. 4. Appeal Instructions—Presumptions. and Error — charge When the the trial of is not set out in record court appeal fully explained on significance that he assumed to the bearing of an issue submitted of the evi- dence thereon. Negligence—Relief 5. Department Acceptance Bene- of Railroads — — Evidence—Ques- fits —Promise—Contracts—Burden of Proof — Jury. tions for voluntary acceptance by employee, of It is a member an company’s department, of that railroad department, the benefits of inflicted, injury his an has been that bars after damages company; to recover from the and when promised accept plaintiff defense in the action is that the necessary for the show defendant performance of the and its thereof in order King B., post, 44, to controlling. render defense available. v. B. as cited Negligence-r-Relief Department Acceptance Ben- Railroads — — Equity—Credits Judgment on efits — —Procedure. plaintiff accepted As ease has the benefits department, defendant’s relief circumstances and under the received, permitted recover, the amount he should return so properly as he amount offered to is ordered company upon he has received be credited to the defendant judgment rendered. J., Clark, C. concurs in result.
Appeal J., Whedbee, Special defendant at June Edgecombe. Term, 1911,
This is an action injuries to recover personal caused, alleges, as the de- plaintiff negligence fendant.
The defendant denies alleges negligence, plaintiff negligence, guilty contributory specially as pleads, was. a defense, member its relief depart- after his ment, injury and that benefits from department. THE COURT. IN SUPREME v. R. R.
Wacksmueh injured on There was evidence for the duty his in a April, 1904, collision, performing while his- part. and without fault engineer, checks, aggre- four It was admitted after injury, relief department him from the $155, were sent to gating benefits. checks, and did collect on the money to the wrote letter August, following proposition: containing L., A. O. you, representative
“If the proper I to be $4.50 me work salary per day at steady in new and to break in the Mount shops Rocky employed me to require similar will not and such other work that engines *3 guar- me further night, give runs or service at long make do for a shall remain in above term employment that I antee $4.50 at a less than salary than fifteen years not less of return- with further time, privilege per day, steady out of run, Rocky my regular daylight going run or ing to same, of the condition will admit Mount, physical whenever my for damages claims C. L. from further any will release the A. being agreed from the above-named accident. It resulting letter your to in agreed are allow me also the amount to you I am entitled of 1 the amount that to August, department.” relief Wilming- to replied, inviting plaintiff
The over it is for us talk -“I think better tO' saying: ton, have written.” you matter about saw Wilmington he went to The testified that to employment agreed and that superintendent, in consequence him, care for and to look out and he collected the checks. these promises contrary. There was evidence show it had evidence tending defendant offered The no issue was but submitted the relief department, contributed to on this question. or requested department fully rules
The R., R., R. O., King 152 N. and in v. R. Barden v. stated in R-, post. R. Nelson v. post, 44, and TEEM, FAIL 1911. O.] There was tending prove negligence. returned the following verdict: Did
1. a member of plaintiff voluntarily become the relief department defendant execute the agreement introduced in evidence? Answer: Yes.
2. Did the his alleged after plaintiff, injury, benefits accept contract, under said so, what amount? Answer: Yes, $155.
3. Was induced cash the relief checks and benefits under accept agree- ment furnish him such work or employment as might thereafter be able to take of him perform, and care as an old Answer: Yes. employee?
If4. so, did the defendant comply-with agreements? Answer: No.
5. Was injured negligence of the defend- ant Answer: Yes. company?
6. Did his plaintiff, by negligence, contribute to own ury ? inj Answer: No. damage What is plaintiff entitled to recover of defendant? $7,500.
Answer: There favor and the de- plaintiff, fendant assigning the excepted, following errors:
First For court erred allowing the answer to question of plaintiff’s counsel, “How answer, much did suffer?” over the defendant’s objection, to *4 “Suffered kinds all of troubles with doctors, were thinking they justice I doing me; me kept telling would be all right, and I was continually trouble.” having
This exception ground that both question and answer are and improper incompetent and should have been excluded.
Second -For that exception. in court erred allowing the under the defendant’s plaintiff, objection, to to testify what him between passed and superintendent, as follows: Q. And went you to see superintendent your about letter of 10 reply 29 August September. and Tell the jury between passed you. what IN SUPREME THE COURT. R.R. into entering
A. said to regard that in a I did do is as contract, they (this not such understood thing him for say), thought to and him reasons it: that I my I told as might changes railroad, there some around be there contract, been in the I to and best hare and past, thought he I long said: to and said likely stay you,” “We always he we looked might true; said, and “Haven’t out that said, for I I insisted case “Yes,” old that-in employees?” and short-cut, I nerves were my could not run and me I would to be on the safe that side, they give want manager, he said “Isn’t something else to and to there that light put Fayetteville, maybe to run to and going .on I it would; Mr. Wacksmuth?” And said maybe suit run, case couldn’t so I would something all I wanted was I said, and work back, and he “Go don’t do; have something for this until feel you stronger, put your application “I for and I am said, going we will look out run, you,” I I for signed my also signed,” relief cheek think my watch, etc. pin,
Q. A. me He touched thing? What did do that first manager would look and the me; “Go said, back,” they workman, through had passed he knew I was good I good seen and he knew was a work,. me shops me impression- and he with the workman, left Q. he said would care they you, He told you men. he said thing care old The last they always took would take care of go they back and you was were you A. checks? went Yes; and cashed those went you, you Wilmington, B.’s office, Mr. an architect down done. I had and told what same irrelevant does any promise not constitute (1) incompetent, to make the basis sufficiently explicit which is agreement terms express contradicts by parol contract, (2) should have been of written and provisions excluded. in allowing erred For that the court
Third' his counsel’s did question, “Why answer *5 FALL TEEM, 1911. 0.] cash, the relief checks?” to under defendant’s state, objection, that it was “with the me.” would look they that
This is exception and an- upon ground that question swer are both irrelevant and contra- incompetent, that they dict by parol express terms the written agree- contract or ment.
Fourth exception. For that 'erred in refusing court give the special instruction, asked 1, numbered defendant, follows:
“The defendant prays court to instruct that there evidence no induced by the defendant accept the relief benefits.”
This exception ground that there was no such evidence, and the court should have so instructed the jury. For exception. erred in court refusing
Fifth the special instruction, numbered asked for as follows:
“Before can you answer the Was issue, plaintiff induced to accept the benefits by the defendant? you find must the facts from the evidence that the defendant knowingly, of- purposely fered and agreed give plaintiff indefinite employment, this was done to induce him to accept the benefits and release his action. There is no this, and ” you are instructed to answer the issue No.’ that the instruction asked for was a correct statement the matter to be found necessary before issue could be answered favor .of no there was evidence upon which said could finding based, the instruction should have been given.
Sixth For court erred in using the fol- lowing language general charge to the jury, wit: “If find as a matter fact that the plaintiff went to Wilmington, general superintendent promised and agreed he would go back and sue he would see that he was company taken care of and as he would be such work would given able to and that reason representations of these did cash his checks, then that that would be such an charge you inducement, and you *6 IN THE SUPREME COURT. v. R. R.
Waoksmuth ought hand, to answer third issue but ‘Yes’; if, the the other they did not induce him or to, did not intend to induce cash those checks, but did without voluntarily it or then No.’ promises, Upon should answer that issue this issue the burden is on the is plaintiff. What meant bur- den is that evidence of one the evidence of outweighs party other issue the is other; words, this evidence then answer would equally balanced, against plain- If tiff, because the has the burden of issue. or evidence of the bears down testimony plaintiff outweighs burden, he is have carried then said to ” and would answer this issue ‘Yes.’ your duty was no exception This is upon the is finding offered from which such a fact as have charge quoted in that of the could been contemplated part made. erred in refusing
Seventh For that court of nonsuit the defendant’s at the grant request of all evidence, again close close of the the evidence. Gilliam, plaintiff. L. V. Bassett
H. A.
F. Spruill S. defendant.
AlleN, An case: examination stating the J., after to the answer no was taken shows that record The objec- error. assignment in the first witness embraced to ask and it was clearly to the question, was tion for him to injuries, of his extent as to the the plaintiff thought if the defendant suffered; much he how state to strike it was its to move duty responsive, answer not out. as it gives an oppor- and the parties, fair to judge committed; been error that has any correct tunity to made to question, objection when well conclude may judge answer, regarded and none to is proper, it is exception, un- note importance sufficient objectionable. FALL TEEM,
N.C.] ‘‘Defendant’s remedy was move to strike promptly the objectionable testimony, the failure of its counsel to adopt course, all any and right which the may object had to thereto waived.” Ency. of PI. and Pr., p. 134.
The remaining assignments, as indicated the brief of the appellant, intended to three present questions: (1) admitted having
is it to prove so by parol that he was induced to do by the promise of the defendant? If
(2) such evidence is competent, was the evidence intro- duced by sufficient to sustain finding that promise was made? If
(3) was made, would it relieve the plaintiff from the legal effect acceptance benefit?
The in “benefits,” term as used the depart- ment, has a definite meaning, and does not include hospital and medical and attention, treatment it is the acceptance agreement so, to do which under certain condi- tions bar may recovery. benefit act of which is party, not evidenced and by any writing, when its is in it is effect show dispute, competent to circum- stances connected with it. R., C., is in respect
It Aderholt v. R. that R., and Von R. Norstrand v. are Kan., 387, distinguishable bar, the case at as each was those cases there a writ ten release.
We think evidence was and competent, that suffi- be submitted the third issue. jury cient to to the for There was received the checks he benefits; superintendent that wrote the of the defendant and fu- proposition settlement, submitted included ture and said he would release the if it employment, him this that in- give employment; would him in him see order that they might vited to talk the matter and the conversation he went that over; that superin- “in to regard entering tendent into said they I as understood him thing (this did not do such say), to COURT. IN THE SUPREME for it: I might I told bim there thought and reason my as had been in around there railroad, some changes said, and he contract; to have a thought and I it best past, said, might and I long ‘That stay you,’ ‘We to likely looked out for old always he ‘Haven’t we true,’ said, and I I in case couldn’t said, I and insisted that ‘Tes,’ employees?’ were not and I would short-cut, my on the nerves run me else side, something safe they want to be on the ‘Well, to be manager, going he said isn’t do; to to will Mr. maybe suit Fayetteville, run light put all I wanted And I said maybe would; Wacksmuth?’ something so I have run, in case I couldn’t would was something go work until said, back, and he ‘Go don’t do; we run, for this stronger, put your application feel ‘You back said, Rocky for you,’ go look out I ‘I am you,’ said, will look out going Mount and we also signed my and I checks think my signed,’ said, back,’ they me He ‘Go etc. touched watch, pin, on what that, relying me,” look would believed, checks, this, benefit him, then collected the “Yes.” issue answering third justified *8 no out, is of his Honor is not set but there charge The assume to the explained we must it, fully 'to the evi- bearing of of issue, jury significance dence. and was to sustain
If the evidence was sufficient of by does the induced verdict, acceptance prom- a recovery? bar defendant, perform, failed to ise of the be remembered question, consideration of it must In the is not on the relying promise. defendant has new say promise It does not of his for damages, in satisfaction claim of future employment of but, declare breach the promise, and therefore must no was made. says contrary, on the a fair the verdict is con- interpretation us that It seems to declared in defendant, principles on against clusive R., v. R. 44. King post, FALL TEEM, 1911. 0.]
The has found that awas between contract plaintiff and the defendant, terms the agreed release the defendant claims account negligence, to him upon payment of the benefits and giving employment, and that the has broken the If so, contract. benefits did not constitute settlement, an but act done furtherance it. Dalrymple v. 70 Mo. Craig, App.,
The contract must be considered and if whole, treated as an accord and satisfaction as a dependent contract with stipulations, the defendant must show in order to performance it. rely on
Our views, as to the controlling when an accord principles case, and satisfaction is are stated in pleaded, and it King unnecessary them. repeat It also well settled “one on a relying contract com- promise and calling settlement him of performance by certain acts, must show im- performance the conditions on him posed such agreement.” Cyc., 534. Jenkins,
This is in Quarles declared be the law C., 98 N. 261, where the Court “The says: court, therefore, properly instructed the jury, effect, alleged the settlement to be final, conditions be observed on the performed part defendant, and he failed to observe and perform the same to the terms as according agreed par between the ties, then there was no and discharge.” .such settlement Armistead, R., case v. R. 108 La. Ann., 173, prin this. injured like There the boat was ciple and he to recover negligence brought action settlement, The defendant damages. pleaded compromise and it was held because good plea prom so, to furnish steamboat and had failed the Court ised to do violated “The defendant and then saying: compromise, *9 is, therefore, and it, position canceled a voluntarily in bar of action.” plead it was entitled judgment upon
We conclude that the plaintiff the verdict. '
44 IN THE SUPREME COURT. King v. R.R. On tbe offered to return amount trial, received as benefits. entitled to have this and the defendant proper,
sum credited on the recovered. judgment
We find
No error.
Clark:, in the J"., O. concurs result so-called department with the contract stat as null and void the State .provisions denounced also Rev., (the Act), Fellow-servant section ute, of 22 April, 1908, Act Employer’s Liability Federal R., post, v. R. concurring opinion King refers to his RAILROAD LINE LaFAYETTEKING ATLANTICCOAST COMPANY. (Filed November, 1911.) Accepted Departments 1. Railroads —Relief —Considera- —Benefits tion —Burden Proof. company up action When a railroad sets as defense personal injury plaintiff! of its relief was member regulations department rules and was concluded under bringing accepting benefits, department, by satisfaction, action, release, or what- accord whether called, appears con- ever it defendant had full name department, power alter rules trol of to make or with the fees, membership regulations the bur- and to fix the binding relying upon effect of den part as a show that rules and by introducing paid has consideration valuable support department, paid what has for the done appear not so made the consideration was must be person ordinary would small that discernment paid nothing. consider that defendant had 2. Same —Guarantee. company For railroad to avail itself of the defense department a member its relief thereunder, could not recover for defend- benefits