Allgood v. Tarkio Elec. & Water Co.

• Decision Date: 30 April 1928
• Docket Number: No. 15923.,15923.
• Citation: 6 S.W.2d 51
• Court: Missouri Court of Appeals
• Parties: CHARLES F. ALLGOOD, RESPONDENT, v. TARKIO ELECTRIC AND WATER COMPANY, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

6 S.W.2d 51

CHARLES F. ALLGOOD, RESPONDENT, v. TARKIO ELECTRIC AND WATER COMPANY, APPELLANT.^*

No. 15923.

Kansas City Court of Appeals. Missouri.

April 30, 1928.

Appeal from the Circuit Court of Atchison County. — Hon. John M. Dawson, Judge.

REVERSED.

Hickman & Hoyne and T.B. Hunt for respondent.

W.R. Littell, Frank L. Barry and Lathrop, Crane, Reynodls, Sawyer & Mersereau for appellant.

FRANK, C.

This is an action to recover damages for personal injuries. Plaintiff recovered judgment in the sum of $1000 and defendant appealed.

Plaintiff was in the employ of defendant, Tarkio Electric and Water Company. Defendant's plant was equipped with three boilers which were so constructed and arranged that they could be operated singly, in pairs or altogether. On October 20, 1924, the day in question, plaintiff and another employee of defendant went inside the drum of one of these boilers for the purpose of cleaning it, and while there another employee of defendant turned steam and hot water into this boiler, as a result of which plaintiff was severely scalded and burned. The petition charges defendant with certain specific acts of negligence and alleges that said acts were the direct and proximate cause of plaintiff's injuries. Defendant's answer pleads (1) a written release, and (2) contributory negligence of plaintiff in failing to close the valves in the pipes leading to said boiler. Of this written release plaintiff's reply alleges:

"Plaintiff admits that he signed the instrument set out in defendant's answer, as a release on or about the 23rd day of December 1924, but denies specifically that he knew what the said instrument contained, and denies that the said defendant informed him that it was a release of his right in and to his claim for damages against the defendant. And plaintiff alleges the fact to be that at the time of signing said instrument, the defendant, by its agents and representatives, induced the plaintiff to sign same, by telling him that he had no claim for damages, and that the laws of the State of Missouri would not allow him any damages, and that there was no way by which he could recover damages by suit in the courts of the State of Missouri, and further represented to him that he could not recover even his wages while he was disabled as the result of said injuries; but that the defendant was willing to pay his wages while he was recovering from said injuries; that relying upon the said representations of the defendant and its agents that he could not maintain an action for damages for his injuries under the laws of the State of Missouri, and further by reason of his physical condition at the time, he being confined to his room and bed and suffering great physical and mental pain and anguish he signed the instrument, the contents of which he did not know, but supposed it was merely a receipt for his wages as represented to him by the defendant, through its duly authorized agents; that one of the defendant's agents who made the foregoing representations was F.L. Barry, an attorney from Kansas City, Missouri, and was representing the defendant at the time, and another of said agents who was present at the time of the signing of said instrument was Moore, manager of the defendant's light plant in the city of Tarkio, Missouri.

Plaintiff admits that he received the sum of $450 as paid by the defendant, but alleges the fact to be that afterwards, to-wit; on the 16th day of July, 1925, he tendered to the said defendant the $450, which said tender was valid and legal, and that said defendant, through its agents refused to accept said tender, and plaintiff now in this court hereby tenders and offers to the said defendant the sum of $450."

Plaintiff was injured on October 20, 1924. The next day he was taken to the hospital at Maryville where he remained for six weeks, then returned to his home at Tarkio. After he returned home, his wife, at his request, went to the office of defendant and inquired what defendant would do about a settlement of his claim. About a week thereafter, Mr. Barry, an attorney representing defendant, and Mr. Moore, defendant's superintendent, called at plaintiff's home to see him. Concerning what took place between them at that time, relative to a settlement or release, plaintiff testified in chief as follows:

"Q. What, if anything, did Mr. Barry say to you? A. Well, he came up there and talked quite a little bit and about time to go to the train, he wanted to hurry home.

"Q. What did he want to hurry home for? A. To get ready for his children's Christmas. And finally he said, `Charlie, what do you want me to do for you?' I said, `Just everything you can.' `Well,' he says, `all I can give you is your wages.' `Well,' I says, `it looks funny, burn a man pretty near to death, and only give him his wages.' `Well,' he said, `that is all you can get, and lucky to get that.' He says, `You can go to any lawyer that expects pay for what he tells you and that is what he will tell you,' he says, `If you go to some of these quack lawyers down here, they will tell you you have a peach of a case.'

"Q. Well, what else? A. Well, that is about all he said.

"Q. What mention, if any, did he make relative to the laws of Missouri? A. He said I couldn't get nothing according to the laws of Missouri.

"Q. Well, did you then immediately sign the instrument? A. No, sir.

"Q. What did you do? A. Well, he says, `I will go down and come back, and then you can think it over.' I said, `All right.'

"Q. Now, when he left at that time, what instrument or papers or documents, if any, did he leave with you? A. Didn't leave any.

"Q. How long were they gone? A. Oh, I don't think over five minutes.

"Q. Who came back? A. Mr. Moore and Mr. Barry.

"Q. Did you have any further conversation with them? A. Yes, he came back and he says —

"Q. Who is `he?' A. Mr. Barry, he says, `Well, what do you think about it?' `Well,' I says, `if that is all I can get, I better take that than nothing.' `Well,' he says, `that is all you can get.' I said, `If that is all I can get, I better take that than nothing,' and he says, `All right,' and he handed me a paper, and I told the woman to hand me my glasses, and agin she had the glasses, he had the check written out, and he gave it to me, and he said, `Now, here, sign this,' and he had out a big pocketbook, and he said `Here, sign it,' and then he took it over and laid it down on the table and said, `Mrs. Algood, you sign it.'

"Q. What, if anything, did Mr. Barry or Mr. Moore here say that instrument was? A. They didn't say.

"Q. Did they read it over to you? A. No, sir.

"Q. Did you have an opportunity to read it over? A. No, sir.

"Q. What opportunity did you have to read it over? A. I didn't have any after I got my glasses so I could see.

"Q. If they stated to you at all, what kind of an instrument did they say it was? A Well, I thought I was just signing a receipt that I got the four hundred dollars.

"Q. What, if anything, did Mr. Barry say about Dr. Benham, if anything? A. Well, he said Dr. Benham said he thought you would be up and go to work in two or three months. `Well,' he said, `we will put it three months, and the three months, that would just cover — four hundred and fifty dollars would just cover three months' wages.'

"Q. Now, did you know at the time you signed this document that it was a release? A. No, sir."

On cross-examination, plaintiff testified as follows:

"Q. Mr. Barry told you, I think you said, if $450 didn't satisfy you, that that was what he could pay you, and for you to think it over and consider it, and he and Mr. Moore would leave and come back? A. Yes, sir.

"Q. And so they did leave? A. Yes, sir.

"Q. Your wife and your folks were there? A. Yes, sir.

"Q. And you did talk it over among yourselves? A. Yes, sir.

"Q. You decided to take the $450, and Mr. Barry and Mr. Moore came back? A. Yes, sir.

"Q. You told them you would take the $450? A. Yes, sir.

"Q. Well, then, you signed this paper along the middle of the afternoon, along about two o'clock, or half past? A. No, sir, it was after three.

"Q. What time did this train leave? A. Supposed to leave about three o'clock.

"Q. And you signed it after three o'clock? A. Yes, sir.

"Q. I see. Did you ask your wife to read it to you? A. No, sir.

"Q. Did you ask any of your children to read it to you? A. No, sir.

"Q. Did you ask Mr. Moore to read it to you? A. No, sir.

"Q. Did you ask Mr. Hackett to read it to you? A. No, sir.

"Q. What was it you say — you didn't ask for anybody to leave you a copy of this release, did you? A. No, sir.

"Q. But you did get the $450? A. Yes, sir.

"Q. That is what you had wanted? A. That is what I wanted."

Plaintiff, his wife and his three daughters could all read and write and were all present at the time the settlement was discussed and the release signed.

The written release which plaintiff admits he signed and acknowledged completely extinguishes his alleged cause of action. He seeks to avoid the consequences of the release by pleading that the agents and representatives of defendant induced him to sign it by telling him that he had no claim or cause of action against the defendant and under the laws of Missouri could not recover damages from the defendant; that he had no valid claim against the defendant for his wages during his disability, but that defendant was willing to and would pay him his wages while he was recovering from his injuries. He also pleads that he did not know the contents of the release at the time he signed it, but supposed it was a receipt for his wages.

We will take first the claim of plaintiff that he did not know the contents of the release at the time he signed it.

The rule of law governing this contention is so well stated by SANBORNE, J., in Chicago, St. P., M. & O. Railway Co. v. Belliwith 83 F. 437, 439, and quoted with approval by the Supreme Court of this State in Woosley v. Wells, 281 S.W. 659, 701, that...