Pullman Co. v. Ray

94 A.2d 266, 201 Md. 268

Opinions

Henderson, J.,

delivered the opinion of the Court.

This appeal is from a judgment on a jury’s verdict for damages for breach of an alleged oral contract of life employment. The questions raised are as to the correctness of the rulings on demurrer and motion for judgment, the correctness of the rulings on the demurrer prayers and motion for judgment n.o.v., and the correctness of the court’s charge to the jury.

The original declaration alleged that the plaintiff was employed as a Pullman porter on June 1, 1924, when he had an accident in the course of his employment and suffered serious injuries including the loss of a leg; that while convalescing the defendant offered “to employ him for the balance of his life”, which offer he accepted, and “in consideration of said agreement the plaintiff surrendered his right to damages in an action at law against the defendant”; that in accordance with the agrément he was employed by the defendant until July 22, 1949, when he was discharged without just cause. The plaintiff claimed damages for breach of the agreement.

Before pleading the defendant took the plaintiff’s deposition and the plaintiff testified under oath that the alleged oral contract was made on behalf of the defendant by Samuel McNabb, its District Superintendent at Baltimore; that nothing was said at that time about salary, or what his duties would be except that they would be light, and that no specific job was mentioned. Later in the examination the plaintiff testified, however, that McNabb said “he was going to give me a job at the Camden Station carrying diagrams”.

The defendant then filed a demurrer to the declaration attaching thereto a copy of the deposition. He also moved for judgment on demurrer. The ground of the motion was that the plaintiff could not, consistent with the facts testified to under oath in the deposition, amend the declaration so as to state a good cause of action. The demurrer was sustained, apparently on the ground that the declaration was too indefinite in that it did not state an agreement to employ in a specific job or át a specific compensation, but leave to amend was granted. Thereupon an amended declaration was filed adding allegations to the effect that the defendant offered the plaintiff lifetime employment as a diagram messenger at Camden Station, Baltimore, at a starting wage of $87.50 per month with compensation thereafter at the regular and customary rate, taking into consideration length of service and seniority. A demurrer to this declaration was overruled. We think the ruling was correct. The contract alleged in the amended declaration was sufficiently definite to meet the test laid down in Heckler v. B. & O. R. Co., 167 Md. 226, 173 A. 12, and B. & O. R. Co. v. King, 168 Md. 142, 176 A. 626.

Of course, the deposition formed no part of the plaintiff’s pleading, and the scope of the demurrer could not be enlarged by the defendant’s action in attaching the deposition to the first demurrer. We see no analogy to a bill of particulars. When filed pursuant to demand, a bill of particulars becomes a part of the declaration and hence may be reached by demurrer. Gaver v. Frederick, 175 Md. 639, 643, 3 A. 2d 463. The motion for judgment was based on the theory that the court could not properly permit an ámendment in contradiction of the deposition. But it is well established that the allowance of amendments is discretionary with the trial court and not subject to review. Poland v. Chessler, 145 Md. 66, 69, 125 A. 536.

The appellant contends that the motion was tantamount'to a motion for summary judgment, under Summary Judgment Rule 1, of the General Rules of Practice and Procedure. It is clear that the rule was designed not as a substitute for trial but only to dispose summarily of cases when there was no genuine controversy as to the material facts. There is no allegation of a lack of controversy in the motion in the instant case. We may assume that a pretrial deposition taken under Deposition Rule 1 could be used under Rule 11 (2) as an admission in lieu of an affidavit. See Explanatory Notes, 1947 Supplement to the Code of 1939, pp. 2109, 2114, and 3 Barron, Federal Practice (Rules ed.) Sec. 1236, p. 90, and cases cited construing Federal Rule 56 from which our rule was adapted. But it would not be conclusive where there is a genuine dispute of fact. Ordinarily, a pretrial deposition is taken either for the purpose of discovery or for use at the trial to impeach inconsistent testimony. The fact that a previous inconsistent statement was made under oath would not be ground for a directed verdict or preclude the jury from believing the testimony at the trial. Crunkilton v. Hook, 185 Md. 1, 5, 42 A. 2d 517; Florentine v. State, 184 Md. 335, 40 A. 2d 820; Porter v. Greenbrier Quarry Co., 161 Md. 34, 155 A. 428. For the same reason, it would appear that the trial judge should not grant a summary judgment where the material facts are disputed, for to do so would usurp the jury’s function, where a jury trial is prayed. There is also force in the appellee’s contention that although no counter affidavits were filed, there was no real inconsistency between the statements in the deposition and in the amended declaration, at least none that could not be explained. The effect of the allowance of the amendment to the declaration was to permit the plaintiff to explain, amplify or controvert the previous admissions. We find no error in the ruling on the motion.

,In regard to the contentions as to the legal insufficiency of the evidence, it is undisputed that the plaintiff was hired by District Superintendent McNabb as a sleeping car porter in 1923. On Sunday, June 1, 1924, while on duty and working as an employee on an all Pullman train making an extra run from Chicago to Washington, D. C. he sustained injuries while the train was in the Washington Terminal. The cause of the accident was not disclosed. He was taken to the Emergency Hospital in Washington where he remained until August 13, 1924, when he was sent to his home in Baltimore. McNabb came to see him at his home. He “saw that I were worrying, which I were, and he said to me that I didn’t have anything to worry about, he said, because The Pullman Company will give you a job, he said, we are going to provide a job for you as soon as you are able to go to work and get along with your artificial leg.” The Company paid for the artificial leg and the hospital expenses. McNabb “didn’t say I’d have any specific job on that first visit, but he did say I’d have a lifetime job, whenever I would be able to go to work.” McNabb visited him 8 or 10 times at his home and told him to come to the office when he was able to do so. The appellee got his artificial leg in November, and reported to McNabb at his office in the American Building. On this visit McNabb mentioned the diagram messenger job, but the appellee was still not able to work. Whenever he called at the office, once a week, McNabb told him the diagram messenger job would be his for life. About two weeks before he went to work, McNabb told him his salary would be $87.50 a month, “that’s what they were going to start me off at.” He said, :“Willie, from time to time I’m quite sure that you will get a raise, according to the Pullman Company * * * rules and regulations of your seniority.” He went to work in January, 1925, but not as diagram messenger. He worked at “light duty at the lien room”, as stockkeeper or storekeeper’s helper, for about two years before he became diagram messenger. He worked at the latter job until 1942, when the job was eliminated and he was again assigned to the stockroom although he was listed as a messenger until 1946. On July 22, 1949 he was furloughed. At the time of his furlough he was receiving $213.90 a month and was 55 years old.

The appellee further testified that he did not file any claim or suit against the Pullman Company on account of the accident. When asked why he did not do so, he answered: “The first visit Mr. McNabb made to my house changed my mind. I didn’t give it a thought after that. Mr. McNabb promised me a lifetime job and artificial legs as I needed them and I didn’t feel I had any time to bother with the Company, if the Company had brought such a suggestion to me that I’d be able to raise my family during my lifetime and I abandoned the idea of any law suit.”

Mr. McNabb died in 1936. The appellee produced two other witnesses, one of whom testified without objection that in November 1925 he was working for the appellant as a conductor. When he was in the office a wire came for Mr. McNabb advising him that an employee, Magers, had been killed in a wreck. Mr. McNabb said: “Well, it’s too bad about Magers, but the damages in a case like this are not near as bad as if you injure a man permanently. He said, if we had not been able to give Willie Ray a lifetime job and take care of him, that could have been a very expensive proposition with [a man] as young as he was at the time.” The other witness, also a conductor, testified that Mr. McNabb told him in 1929 that Ray had “a lifetime job with our company, and he was then working as diagram man at Camden Station.”

The appellant produced testimony that there was no record of the Company to show any offer or agreement by McNabb as to lifetime employment of Ray, nor any letter or communication to the main office. There was nothing in the by-laws of the Company or minutes of the directors authorizing McNabb or any District Superintendent to make such an offer. It was also shown that the positions of diagram messenger and stock-keeper have both been abolished; Ray had not been discharged but was carried as a furloughed employee with top seniority on the clerical roster. There was no job available that he could fill without stenographic or other educational qualifications that he did not possess. The appellant also put in evidence, over objection, a collective bargaining agreement between the Company and the Pullman Clerks’ Association. It is contended that this agreement, dealing with the furlough of employees when jobs are eliminated, superseded the alleged oral contract.

The appellant’s first contention on the demurrer prayers is that there is no evidence that Ray had a valid claim that he might have asserted against the Company in 1924 when the accident occurred, and hence the alleged agreement was without consideration. It appears to be conceded that there could have been no claim for workmen’s compensation because the District of Columbia statute was not enacted until 1927, and neither the Federal Employer’s Liability Act

Footnotes

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* nor the Maryland; Act† would have been applicable. But it does not follow that he would have been without remedy against his employer in an action at common law. Cf. Dean v. H. Koppers Co., 49 App. D. C. 230, 263 F. 626 and Woodward & Lothrop v. Lineberry, 60 App. D. C. 164, 50 F. 2d 314. “Forbearance to sue for a lawful claim or demand is sufficient consideration for a promise to pay for the forbearance, if the party forbearing had an honest intention to prosecute litigation, which is not frivolous, vexatious or unlawful, and which he-believed to be well founded, even though it may in fact be unfounded.” Snyder v. Cearfoss, 187 Md. 635, 643, 51 A. 2d 264, 267; Snyder v. Cearfoss, 190 Md. 151, 160, 57 A. 2d 786. See also Hartle v. Stahl, 27 Md. 157, 173; Bowen v. Tipton, 64 Md. 275, 288, 1 A. 861; and Williston, Contracts (Rev. ed.) Sec. 135. While the details of the accident were excluded by the trial court; the fact that Ray was injured in the course of his employment was enough to indicate at least a potential cause of action, and it is immaterial that he might have been unable to establish liability. It is only necessary that Ray should have “had an honest and reasonablé belief , in'the possible validity of a claim!” Snyder v. Cearfoss, 187 Md. 635, 644, 51 A. 2d 264, 268. His testimony that after the proposal of a lifetime job he changed his mind and “abandoned the idea of any lawsuit”, was some evidence of such a belief.

The appellant contends, however, that there was no evidence of an agreement to forbear. It is true that in Heckler v. B. & O. R. Co., supra, there was an allegation of settlement and release. But recovery is not limited to cases where there is a bilateral contract; proof of a unilateral contract will suffice. In B. & O. R. Co. v. King, supra, there was evidence, not of a promise to forbear, but merely of a request to do so. See also Young v. Boyd, 107 Md. 449, 69 A. 33, and Devecmon v. Shaw, 69 Md. 199, 14 A. 464. In Snyder v. Cearfoss, 187 Md. 635, 641, 51 A. 2d 264, 267, there was no evidence of a promise to forbear and no evidence of an express request. The promise to share the estate was simply conditional: “if you do not join with Jacob Snyder in any action he may take against me”, followed by forbearance to join in his caveat proceeding. It was said (p. 644) : “We hold that forbearance to exercise a legal right constitutes sufficient consideration for a contract, although there is no express promise to forbear, if such forbearance exists at the request of the party promising to compensate for the forbearance and in reliance upon such promise. In re All Star Feature Corporation, D. C., 232 F. 1004, 1009.” In the case cited Judge Learned Hand said: “Forbearance, even without an agreement to forbear, will serve as a consideration, if it be completed.”

In Williston, Contracts (Rev. ed.) Sec. 136, it is said that “forbearance for a reasonable time if requested is a sufficient consideration even though no promise of forbearance is made, a unilateral contract being as good as a bilateral”, citing In re All Star Feature Corporation, supra, and other cases. The learned author then says: “Mere forbearance without request, however, is insufficient”, but he continues: “If the offer contemplates á unilateral contract for which the consideration is for bearance, it is almost impossible to suppose that the parties can have contemplated perpetual forbearance * * *.” In a footnote, he states: “Possibly the giving of a release of the claim or the lapse of the period of limitation might be regarded as the equivalent of perpetual forbearance.” In Harvey v. J. P. Morgan & Co., 166 Misc. 455, 2 N. Y. S. 2d 520, cited by Williston, a request seems to have been implied from a statement of the condition. In Corbin, Contracts, (1950 ed.) Sec. 137 it is said: “As in the case of other unilateral contracts, actual forbearance to sue does not involve the surrender of any right * * *. There seems to be a strong tendency for a court to find that a forbearance that was actually given was requested or even was promised in advance by implication.” See also the discussion in Corbin, Secs. 139 and 151; Albany Nat. Bk. v. Dodge, 41 Wyo. 286, 285 P. 790, 796; and note 74 A. L. R. 293. In the instant case there can be no doubt that the possibility of suit was present in the minds of both Ray and McNabb. We think it can be inferred from the circumstances that McNabb’s offer was not only conditional upon the abandonment of the suit, but that the condition was bargained for and not a mere gratuity.

Since we think a contractual undertaking can be implied from the circumstances, it is unnecessary to rest our decision upon the broader ground set out in Sec. 90 of the Restatement, Contracts, which provides: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” This section was cited with approval in Anderson v. Truitt, 158 Md. 193, 199, 148 A. 223. Williston, Contracts (Rev. ed.) Sec. 139 is somewhat critical of the doctrine of “promissory estoppel” as a substitute for consideration, but in Sec. 140 approves the principle announced in Sec. 90 of the Restatement with the comment that it “does not assert a sweeping rule that in every case action in reliance is sufficient support for a promise.” Corbin, Contracts (1950 ed.) Sec. 194, et. seq. discusses the section in great detail and supports it by reference to cases involving a wide variety of situations.

The appellant contends, however, that the contract cannot be enforced against the Company in any event because McNabb was not authorized to make it and the Company did not ratify it. There is, of course, no evidence of prior authority or subsequent ratification; if authority is found it must therefore be implied. But it is well established that a corporate officer or agent has no implied authority to make an agreement for life-employment, even though he may be generally authorized to hire. C. & P. Tel. Co. v. Murray, 198 Md. 526, 84 A. 2d 870. See also Williston, Contracts (Rev. ed.) Sec. 1652, citing Heaman v. E. N. Rowell Co., 261 N. Y. 229, 185 N. E. 93. However, it was noted in Heckler v. B. & O. Ry. Co., supra, that there may be an exception where the agreement for lifetime employment is in consideration of the release of a claim for damages, and the question was left open in that case. It has been held that proof of authority to settle claims is not enough. Cleveland Ry. Co. v. Green, 126 Ohio St. 512, 186 N. E. 365, 87 A. L. R. 1268, and cases cited. In Maxson v. Michigan Cent. R. Co., 117 Mich. 285, 75 N. W. 459, it was held that a division superintendent had no implied authority to bind the Company to life employment, in consideration of the settlement of a claim for damages on account of injuries.

The case principally relied upon by the appellee for the so-called exception is F. S. Royster Guano Co., v. Hall (4th Cir.) 68 F. 2d 533, 537. While the court in that case discussed the apparent authority of the local superintendent, the point stressed was that there was a settlement reported to the Company officers and an executed release. Judge Parker, speaking for the court said: “The defendant cannot accept the fruits of a settlement and then assert that the agent who made it had no authority to settle. We do not mean to say that acceptance and reliance upon a release is, in the absence of knowledge, a ratification of the settlement as made; but it is a recognition of some authority to settle in the one who has obtained it.” See also General Paint Corp. v. Kramer, 10 Cir., 57 F. 2d 698, 703. In Starr v. Superheater Co., (7th Cir.) 102 F. 2d 170, 176, cited in .the Murray case, supra, it was said that the exception is “based upon sound elements of estoppel.” In Eggers v. Armour & Co., 129 F. 2d 729, 733, it was held that the case should be remanded to admit evidence “relative to the circumstances surrounding the making of the alleged contract [with the employment manager] and relative to the recognition of its existence by defendant’s officers in charge.” On the other hand, in the recent case of Savarese v. Pyrene Mfg. Co., 9 N. J. 595, 89 A. 2d 237, 241, it was held that authority to offer life employment could not be implied from a promise made by a vice-president following an injury to an employee, .where there was no evidence that the matter was ever brought home to the managing directors. Cf. Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 131 P. 2d 315.

•In the instant case, we think there are no facts to support a theory of estoppel. McNabb was not a corporate officer' and there is no evidence that his. offer to the appellee was ever'made a matter of record or communicated to the higher officers of the Company. There was no release of the claim to charge the Company with notice. The mere fact that the bills for hospital expenses and artificial leg were paid by the Company and that Ray was re-employed would not. imply that he had agreed to release his claim or that he had- been offeréd lifetime employment in exchange for forbearance to sue. His employment in several different capacities which continued as long as there was work that he was capable of performing would not indicate that he stood in any better position than the ordinary employee. As we said in the Murray case, supra, (198 Md. 531) : “If corporate officers could enter into contracts giving per sons of their selection employment for life, the directors might be deprived of authority. To justify the court in finding such an employment, there must be proof that there was definite authority, by by-law, action of the board of directors, or otherwise, to make such a contract * * * or that the contract was ratified by the corporation or its fruits were accepted with full knowledge of the circumstances of their acquisition.” We think the appellee has failed to bring himself within the rule stated.

Since we find no evidence legally sufficient to support a recovery against the Company upon McNabb’s promise, it is unnecessary to discuss the other points argued, that in any event' the promise of employment was always conditional upon there being work available which the appellee was competent to perform, or that the agreement was modified to that extent by the collective bargaining agreement to which appellee was necessarily a party.

Judgment reversed and entered for the defendant, with costs.

Reporter’s Note: 45 U. S. C. A. secs. 51-59.

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Reporter’s Note: Code (1951), Art. 101.