Austin v. Brooklyn Cooperage Co.

• Decision Date: 17 July 1926
• Docket Number: No. 4033.,4033.
• Parties: AUSTIN v. BROOKLYN COOPERAGE CO.
• Court: Missouri Court of Appeals

285 S.W. 1015

AUSTIN v. BROOKLYN COOPERAGE CO.

No. 4033.

Springfield Court of Appeals. Missouri.

July 17, 1926.

Appeal from Circuit Court, Butler County; Chas. L. Ferguson, Judge.

Action by George W. Austin against the Brooklyn Cooperage Company. Judgment for plaintiff, and defendant appeals. Reversed.

Oliver & Oliver, of Cape Girardeau, for appellant.

Cope & Tedrick and Henson & Woody, all of Poplar Bluff, for respondent.

COX, P. J.

Action for personal injuries. Plaintiff recovered, and defendant appealed. The plaintiff was assisting a foreman of defendant in drilling, by machinery, holes through what is termed conveyor blocks, and it is alleged that through the negligence of said foreman the drill was brought in contact with one of plaintiff's fingers and cut off the end of it. Without detailing the evidence, suffice it to say that plaintiff made a case for the jury on the allegation of negligence and resultant injury. After the injury, plaintiff signed a release of his claim for damages. Plaintiff's counsel realized that this release must be voided before plaintiff could recover, and, instead of waiting for it to be pleaded as a defense, set it up in the first count of the petition and alleged that its execution was procured by fraud, and asked to have it canceled. The second count in the petition stated a cause of action based on the injury. The defendant by answer denied the negligence charged and also pleaded the release as a defense. The case was tried by a jury which found for plaintiff on both counts of the petition, and judgment was then rendered, reciting the verdict and giving judgment for plaintiff against the defendant for $1,750, with a credit of $196, the amount paid to plaintiff when the release was executed and interest thereon. Plaintiff had tendered back the amount received under the release, and defendant had refused to accept it.

Defendant predicates error in the action of the court in submitting to the jury the issue of fraud under the first count of the petition which was an action in equity to cancel the release. The plaintiff was at liberty to proceed in equity to cancel the release either in an entirely separate action, or by coupling it with an action for damages in a separate count as he did do, or he could have waited until defendant filed its answer and pleaded the release as a defense, and could then have raised the question of fraud in obtaining the release in his reply as provided in section 1238, Stat. 1919. If a party files a separate suit or asks for a cancellation in a separate count in his petition, it occurs to us that the correct practice would be to try the equity action separately from the law action for damages and by the court under the rules of equity procedure the same as in any other action in equity, but defendant did not ask to have that done in this case. No objection to trying the equity action and the law action together before a jury was made, and it is too late to raise that question after verdict.

The most serious contention of defendant is that the evidence does not sustain the finding of the jury for plaintiff on the first count of the petition to the effect that the release was obtained by fraud, and hence defendant's demurrer to plaintiff's testimony should have been sustained. The release recited that, in consideration of $190, the receipt of which is acknowledged, the plaintiff released and forever discharged defendant from all liability on account of the injury on which this suit is based. It further provides as follows:

"It is expressly agreed that the payment of the above sum is the sole consideration for this compromise and settlement."

This release was signed by plaintiff February 6, 1925. The signature was witnessed by Earl V. Walker, chief clerk for defendant, and the party with whom the settlement was made on the part of defendant, and Ada Bock, a stenographer in the office of Mr. Walker. Plaintiff's contention is that the release does not contain the entire agreement. He testified that the settlement was made with Mr. Walker, and the agreement was that defendant was to pay $150 for the time he had lost, pay his doctor bill, his house rent, and pay him for full time while he was unable to work, and give him employment again as soon as he should be able to work. He further testified that the defendant paid him $150 and paid the doctor $40, which made up the $190 recited in the release, and had paid nothing more and had refused to give him work. The evidence of the plaintiff as to how he came to sign the release and the evidence on which he relied to sustain the charge that its execution was procured by fraud, when arranged in logical order, is substantially as follows: On cross-examination he was asked:

"Q. Did you have the settlement the same day you signed this agreement? A. Yes, sir.

"Q. I thought you said nothing was said when you signed this up? A. I don't remember all the dates, but I was talking with Walker one day about my injury and claim, hut we did not settle. The next morning he called me in and said he had had a conversation with Scott, and they had agreed to give me $150, pay my doctor bill, pay my house rent, and give me straight time until I got able to work, then I was to have a job. That was about a week before I signed up."

Mr. Scott was the manager of defendant. We mention this testimony first because it details a conversation that occurred a week before the release was executed.

Plaintiff further testified:

"I cannot read print or write. At the time I made this settlement I don't know how the release was worded and what was in it. It never was read to me. There...