Perry v. Leavenworth & Topeka Railroad , 110 Kan. 55 ( 1921 )

The opinion of the court was delivered by

West, J.:

The plaintiff was a crossing flagman on the line of the Leavenworth & Topeka Railroad Company on Choctaw street'in the city of Leavenworth from May 19, 1918, to August 17, 1919. Several other railroads ran over the same street, and it seems that the Leavenworth & Topeka was operated by the Anthony & Northern Railroad Company, and Overton Hodges was superintendent of the latter. The plaintiff had been working at $50 a month, and alleged in his amended petition that about May 19, 1918, Superintendent Hodges verbally agreed with him that his salary would be $65 a month and that by virtue of general order No. 27, issued by the director-general, the salary was fixed at $65 a month on behalf of the other roads running over the street which contributed towards this salary; and that notwithstanding this agreement he received only $50 a month up to September 1, 1918, leaving a balance due him of $52. He further alleged that about September 1, 1918, Superintendent Hodges verbally agreed with him that he should receive $75 a month for eight hours a day and if he worked fourteen hours a day he would receive extra pay so that the wages for the entire month would be $150; that the plaintiff worked on until August 17, 1918, fourteen hours a day, and was entitled to receive $150 a month up to September 1, 1918, but only received $65 a month, leaving a balance of $983.11. He also claimed a return of $7 a month deducted for hospital service on the ground that the defendant maintained no hospital and that he received no benefit from this fund. The case was tried by the court without a jury and judgment rendered for the plaintiff for $1,028.61.

The defendant, the Leavenworth & Topeka Railroad Company, appeals, but we find no assignment of errors either in the abstract or brief, probably owing to a change in counsel. On this ground a dismissal of the appeal is asked by the plaintiff. We gather from the brief, however, that the defendant contends the contract alleged by the plaintiff was not proven, and that the testimony showed that he was estopped because of certain vouchers received and marked by him “Paid in full” for several months at much smaller rate of wages. The case has been presented on both sides by written and oral arguments, and we will consider it on its merits. An examination of the record is convincing that the testimony justified the court in finding the contract was made as alleged by the plaintiff, and further that there is nothing to show any estoppel by receipt even if estoppel had been pleaded, which it was not. There was considerable conflict in the testimony, but several other crossing watchmen testified to the same sort of transaction with Mr. Hodges; the trial court saw and heard them all; and with the conclusion reached we agree.

The judgment is affirmed.