Appeal from the Circuit Court of Christian County; the Hon.
FRANKLIN R. DOVE, Judge, presiding. Reversed.
ROETH, PRESIDING JUSTICE.
Suit was brought on an alleged oral contract between plaintiff and defendant, the complaint alleging a contract wherein defendant agreed to pay him $200 per month for life in consideration of the defendant's agreement to remove himself from the roll of defendant's employees and the further consideration of plaintiff refraining from working for any other coal mining company. The jury returned a verdict for the plaintiff upon which the court entered judgment and from which this appeal is perfected by defendant.
Defendant contends that the trial court erred in denying defendant's motion for directed verdict and its post trial motion for judgment non obstante veredicto and in excluding certain testimony offered by defendant.
In June of 1946 plaintiff, an employee of the defendant, sustained carbon monoxide poisoning while managing one of defendant's mines. He was unable to work until September of that year, when he returned for several days, laying off again until January of 1947. He was paid his regular salary until this latter date. It appears that he had discussed his inability to work with one Starks, the district superintendent of the mine. On December 10, 1946, plaintiff, Starks, one Oscar Smith, the company doctor and three other supervisory employees of the defendant were in Starks' office for the alleged purpose of discussing the matter of plaintiff's illness. Plaintiff testified that the following conversation took place, Starks saying: "Well, gentlemen, I have been to Chicago and I have a deal here for you." Starks then reached in his desk drawer and pulled out a letter and held it in his hand. He never read it. He said to Oscar Smith, who apparently suffered an ailment similar to that of plaintiff, "Oscar, we'll grant you $150 a month the rest of your natural life pension." He then said, "You know Bob (the plaintiff) makes more money than you do." He then advised the plaintiff as follows: "Your deal will be $200 a month the rest of your natural life but if you go to work for another coal company, your pension will cease." The following testimony of plaintiff then appears in the abstract:
"Q. Did he say anything about you doing any other kind of work?
A. Yeah. He told us if we were able, we could do little odd jobs around and it wouldn't interfere with our pension.
Q. Now, just to get the record perfectly straight, Mr. Crawford, when he made the remark, `You are to receive $200 a month', to whom was he addressing those remarks?
A. Whom was he addressing that to?
A. He was addressing that to me.
Q. Did you answer him in any way when he told you about this deal?
A. When he told me the deal was $200 a month the rest of my natural life, I said, `I'll accept it.' And so did Mr. Smith."
This testimony was objected to by the defendant on the ground that all persons present at the conversation except plaintiff were dead.
Plaintiff further testified, and there is nothing to the contrary in the record, that he did not work for another coal company after his retirement from defendant's employment. The payment of $200 continued from January 1, 1947, to December 31, 1954. From that point on to the present time defendant has been paying ...