Bethurkas v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 03 February 1923
• Docket Number: No. 17372.,17372.
• Citation: 249 S.W. 438
• Court: Missouri Court of Appeals
• Parties: BETHURKAS v. CHICAGO, M. & ST. P. RY. CO.

249 S.W. 438

BETHURKAS v. CHICAGO, M. & ST. P. RY. CO.

No. 17372.

St. Louis Court of Appeals. Missouri.

February 3, 1923.

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

"Not to be officially published."

Action by Andrew Bethurkas against the Chicago, Milwaukee & St. Paul Railway Company. Verdict for defendant, new trial denied, and plaintiff appeals. Reversed and remanded.

Arthur Stahl and Earl M. Pirkey, both of St. Louis, for appellant.

Fred S. Hudson, of Kansas City, for respondent.

BECKER, J.

Plaintiff brought suit for damages for personal injuries alleged to have been sustained by him in July, 1917, while in the service of the defendant in the state of South Dakota as a section hand. According to plaintiff's petition, while working as a section hand for the defendant, his foreman gave him a sledge hammer, the head of which was not secure upon the handle, and the handle of which was split. Plaintiff at the time noticed that the handle was split, and called the foreman's attention to the defect, but was directed by the foreman to use it. Thereupon plaintiff, relying upon the foreman's superior knowledge, made use of the sledge hammer in his work, and while using it the head of the hammer flew off, causing plaintiff to fall backwards and causing him injury.

The amended answer denied the jurisdiction of the court, on the ground that the defendant was not properly served; set up a plea of contributory negligence on the part of the plaintiff in failing to take proper care of himself in the handling of the sledge hammer which he was using at the time he met with his injuries; also set up a plea of assumption of risk and a plea that plaintiff had executed a release and made a settlement in full of his claim against the defendant for any injuries he might have suffered.

The reply was a general denial, and in the verification thereof contains an averment that the plaintiff did not execute the release charged in the defendant's answer as having been signed by plaintiff.

On trial of the case to the court and a jury, a verdict resulted for the defendant, and, plaintiff's motion for new trial being in due course overruled, plaintiff appeals from the resulting judgment.

The evidence adduced on behalf of plaintiff tends to show the following: In July, 1917, he was a section hand in South Dakota, working for the defendant. On July 21, 1917, his foreman gave him a sledge hammer to use, the head of the sledge was insecure on the handle and the sledge handle was cracked. He called his foreman's attention to the crack, but the foreman told him to use it. He thought the foreman knew best, and that he could use the sledge in safety; while using it, the head flew off the handle, causing plaintiff to fall and sustain injuries.

Defendant's testimony tended to show that plaintiff was not injured, and that his injuries were due to disease or climate, and that his name appeared on the pay roll, and he worked after the, time he claimed to have been injured. Defendant's witness Robinson said he was timekeeper, and that plaintiff had been in the hospital on account of sickness, and that plaintiff had said nothing to him about being injured, but that, as a matter of precaution, before permitting plaintiff to return to work, "I had him sign a release." On cross-examination Robinson testified that no money was paid plaintiff for the release, and that he did not know that plaintiff had worked after he came back from the hospital; that there were several men who had the same surname as plaintiff; that there were three altogether, plaintiff and two brothers; that the section men did their own cooking, and had a camp, and were allowed a certain number of men to take care of the camp, and these were carried on the pay roll as working, and plaintiff might have been in the camp during the time he was on the pay roll after the time of the alleged injury.

There was medical testimony pro and con, and also testimony of other witnesses offered by plaintiff and defendant to sustain their respective theories. What we have set out above is sufficient for an understanding of our disposition herein of the assignments of error brought here for our determination.

On behalf of defendant the court, among others, gave the following instruction, to wit:

"The court instructs the jury that the consideration of re-employment in the release offered in evidence is a valid and sufficient consideration in law for the execution of the same, and if you believe from the evidence that the plaintiff signed said release and was re-employed by the defendant, then plaintiff is not entitled to recover, and your finding and verdict must be for the defendant."

The giving of this instruction is urged here as error, it being contended by counsel for appellant that a release in consideration of re-employment for an indefinite time and terminable at the will of the employer is void. In support of this contention we are cited no Missouri cases, but several cases in other jurisdictions. We must rule the point to be not well taken, in that in this state the matter is no longer open to dispute, but that a release such as introduced by the defendant in this case, if signed by plaintiff, barred his right to recovery in the present action. As was specifically ruled by this court in the case of Forbs v. Railroad Co., 107 Mo. App. 661, 82 S. W. 562:

"While, as a general rule, in order to support an agreement a legal consideration is requisite, it is not essential to the validity of a contract that the consideration therefor should be adequate in value. A valuable consideration, although small or even nominal, in absence of fraud, is enough to support the agreement entered...