Armstrong v. Scullin Steel Co.

• Decision Date: 03 January 1925
• Docket Number: No. 18859.,18859.
• Citation: 268 S.W. 386
• Parties: ARMSTRONG v. SCULLIN STEEL CO.
• Court: Missouri Court of Appeals

268 S.W. 386

ARMSTRONG v. SCULLIN STEEL CO.

No. 18859.

St. Louis Court of Appeals. Missouri.

January 3, 1925.

Rehearing Denied January 22. 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Charles Armstrong against the Scullin Steel Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

DAUBS, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment for $3,000, and defendant appeals.

The petition alleges that plaintiff, as an employé of defendant, was required to carry loads over a path of defendant's manufacturing plant; that on August 3, 1922, and prior thereto, the path was not reasonably safe for him to go over while carrying a load, because of rods and broken cores left in the pathway; that defendant knew, or could have known by the exercise of ordinary care, of this condition in time to have remedied same, but that it negligently failed to do so, and required plaintiff to use the path with a load on his back; and that, while plaintiff in the discharge of his duties so used the path, he was injured by falling and injuring his right shoulder, right side, and back, and nervous system.

The defendant filed a general denial, and pleaded a $50 release as a bar to the suit. The reply is a general denial, then admits that defendant paid plaintiff the sum mentioned, and that plaintiff signed a writing, but that he was unable to and did not read same and signed same ignorant of what it contained; that he depended upon the representations of defendant's agents to the effect that same was a receipt for part wages; and, finally, that he tendered, and still tenders back the $50, which defendant refused. The reply is verified.

Appellant relies upon two points for a reversal of the judgment: First, that the demurrer to the evidence should have been sustained; and, secondly, that plaintiff's instruction on the measure of damages is erroneous. No question is raised as to the sufficiency of the evidence as to the negligence of defendant in the manner pleaded, nor as to the character and extent of the injuries, but appellant contends that there is an absence of proof of fraud in procuring the release, and therefore the release pleaded in defendant's answer is a complete defense, and defendant's instruction given the close of plaintiff's case and at the of the whole case should have been given.

Under our statutes (section 1238, Rev. St. Mo. 1919), plaintiff may allege in his reply that the release or settlement relied upon by defendant was wrongfully or fraudulently obtained, and, when plaintiff makes a showing by substantial evidence that such release was so obtained, such issue is to be submitted to the jury with all the other issues in the case. But counsel for respondent argues that since defendant offered, and the court gave, instructions on the issues made, that then defendant has abandoned his demurrers, and defendant implies that all those elements are in issue upon the evidence, and relies upon Davison v. Hines (Mo. Sup.) 246 S. W. 303.

While the opinion in the Davidson Case employs language somewhat broader than that used in Torrance v. Pryor (Mo. Sup.) 210 S. W. 430, and Leahy v. Winkel (Mo. App.) 251 S. W. 483, and similar cases, yet that decision is no broader than in these cases. We have recently attempted to analyze these latter cases in Loretta McMahon v. Joseph Greenspon's Sons Iron & Steel Co. 267 S. W. 83 (not yet [officially] reported). It is our understanding that the rule is that where several assignments of negligence are contained in the petition and a general demurrer to the evidence is interposed, with no request that any particular assignment be withdrawn from the jury, that then if defendant joins in submitting the case on instructions on any particular theory or cause of action, he is precluded from saying that such doctrine is not in the case. But where there is but one assignment of negligence, as here, the demurrer to the evidence is not abandoned by defendant in offering instructions on such theory.

We hold in this case that there is sufficient substantial evidence to warrant the court submitting the issue as to whether the release was wrongfully or fraudulently obtained. Plaintiff testified that shortly before the accident he saw notices posted in defendant's workshop, which notices were to the effect that injured persons would receive half-time pay during lay-off from injury. Plaintiff says that after he was injured he asked for such half-time pay, and that he was sent to the company's physician. He was then sent for what he understood and was led to believe was such pay. Plaintiff was and is very deaf, in fact, almost totally deaf, and the record shows that he was examined in court by written questions. He is, as disclosed by the evidence, a very ignorant man. He says he was 56 years old and that he cannot read at all without glasses. When he was sent to the office of defendant company, he met two persons, and, after making known that he wanted his pay, as he states, he was given a sum which amounted to about his half-time pay. The paper purporting to release defendant was handed him to sign. He said he did not have his glasses and could not read same, and that he was not told that same was a release, though this is strongly disputed by defendant's two witnesses, who directly testified that the contents of the release was thoroughly made known to plaintiff. Afterwards, as soon as plaintiff learned what the paper contained, he returned same and tendered the $50 back, and explained his mistake in signing the paper. Plaintiff was handed the release on the witness stand and displayed difficulty in attempting to read same. What plaintiff's evidence is in this respect can best be understood from the following testimony:

Plaintiff's cross-examination is, in part, as follows:

"Q. Had you ever seen or signed a paper like this before? A. I never noticed they had a paper—those people up there—and I never noticed that; and they told me to sign it, and after he got me to sign it he doubled it up, and handed it to me, and told me to go to the office and get my money. * * *

"Q. Did you hear him tell you to go to the office? A. I knowed I had to go to the office, because that was the only way I had to get my money. I never heard him tell me; no, sir; but he motioned to me, and I go by signs. I can't hear nothing. I am honest with you, if it is the last word I have to speak before me and God in heaven.

"Q. How long have you been so deaf that you can't hear anything? A. I have been that way five years.

"Q. Did the man who handed you this paper say anything to you or write out anything and show you before you signed it? A. No, sir, "Q. What did you do with the $50 that you received? A. I sent it back. I sent the money back to them by my lawyer."

On redirect examination the following appears:

"Q. Did you read over that paper you signed? A. No, sir; I didn't have my glasses and I couldn't see how to read it.

"Q. Was it read to you or explained to you? A. No, sir.

"Q. Did you know what was in it? A. No, sir; I didn't know...