Kelly v. Burnham, Williams & Co.

Opinion by Mr. Justice Frazer, This was an action in assumpsit, brought by appellant against appellees to recover an amount claimed to be due under a contract. On May 31,1907, Andrew Kelly, the husband of appellant, while in the employ of appellees, was injured at their works in the City of Philadelphia, by the bursting of a wood polishing wheel. Kelly was rendered unconscious for three days following the accident, and permanently incapacitated thereafter for work. As a result of the injury he is of unsound mind, and has been confined in the Philadelphia Hospital since shortly after the accident until the present time. Within a day or two' following the accident and at subsequent times, Frederick J. Pooley, whom appellant claims is an employee of appellees, called at the home of Mrs. Kelly, and according to her testimony and that of her daughter, agreed with her that appellees would pay the rent of her house, sixteen dollars per month, and allow her the sum of eight dollars per week for household expenses, so long as her husband remained unable to work, and would thereafter reemploy him at twelve dollars per iveek if she would “not go to law.” She says these terms were accepted by her, and that she signed a paper, the contents of which we have not before us. Payments aggregating seven hundred and ninety dollars on account of rent and for household purposes were made by appellees to Mrs. Kelly personally from time to time, until July 7, 1909, when the last payment was made. At the trial in the court below a compulsory nonsuit was entered. The reasons assigned, therefor, being (1) insufficient evidence to establish Po'oley’s authority to make the contract, (2) want of consideration, and (3) that appellant had no right of action for the injury [226] received by her husband. The refusal of the court to take off the nonsuit is assigned as error. For the purpose of determining the question now before us we may assume as testified to by Mrs. Kelly, that Pooley made an agreement with her for the payment of certain sums of money if she would not bring suit against appellees. An examination of the testimony fails to show authority in Pooley to make such a contract in their behalf. That being the case, was the evidence sufficient to take the question of ratification of Pooley’s act by appellees to the jury? The payments claimed to have been agreed upon between Mrs. Kelly and Pooley were made from time to time at the office of appellees by Mr. Vauclain, one of the appellees, and by authorized employees of the company, during the twenty-seven months following the accident without objection or protest upon the part of either Mr. Yauclain, who apparently had knowledge of some understanding or agreement with Mrs. Kelly, or any other member of the company. This evidence was amply sufficient to require the submission to the jury of the questions of a contract by Pooley and its ratification by appellees. If the sums allowed her were a charity, voluntarily made, as set forth in the affidavit of defense, and were not made under a contract as claimed by Mrs. Kelly, that question was also for the jury. To sustain a consideration, appellant relies on Hamaker v. Eberley, 2 Binney 505. The rule laid down in that case would seem to sustain her contention, whileit is true as a general rule that a promise to forbear a suit against a person against whom the plaintiff has no legal cause of action is not a sufficient consideration, the situation here makes that rule inapplicable to the facts before us. While Mrs. Kelly probably had no right of action against appellees at the time Pooley was “coaxing her not to go to law,” we can fairly assume from the testimony that it was believed by both herself and Pooley that her husband’s injuries would terminate fatally. In that event Mrs. Kelly would have an action against [227] appellees, and if under those circumstances she “gave up all her legal redress either present or future, under any circumstances which might arise,” Hamaker v. Eberley, supra, as she did according to her testimony, there was ample consideration to sustain the contract which she avers existed between herself and appellees. We are of opinion that under the circumstances developed by plaintiff’s testimony, this case was for the jury. Judgment reversed with a procedendo.