Brennecke v. Ganahl Lumber Co.

• Citation: 44 S.W.2d 627,329 Mo. 341
• Decision Date: 21 December 1931
• Docket Number: 29578
• Parties: William G. Brennecke v. Ganahl Lumber Company, Appellant
• Court: United States State Supreme Court of Missouri

44 S.W.2d 627

329 Mo. 341

William G. Brennecke v. Ganahl Lumber Company, Appellant

No. 29578

Supreme Court of Missouri

December 21, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Anthony Ittner, Judge.

Reversed (on first count) and affirmed (on second count).

Banister Leonard, Sibley & McRoberts and Frank P Aschemeyer for appellant.

(1) Defendant's instruction in the nature of a demurrer to the evidence with reference to the first count of the petition, offered at the close of all the evidence, should have been given, because: (a) Defendant's releases introduced in evidence were valid and binding upon the plaintiff. Plaintiff did not make out a primafacie case of actionable fraud in the procurement of the releases, because under the facts and circumstances he had no right to rely on any misrepresentations which were made. Higgins v. Am Car Co., 22 S.W.2d 1043; State ex rel. Union Pac. Railroad Co. v. Bland, 23 S.W.2d 1029; Allgood v. Elec. & Water Co., 6 S.W.2d 51; Woosley v. Wells, 281 S.W. 695; Dyrssen v. Union Elec. Light & Power Co., 317 Mo. 221, 295 S.W. 116; Anderson v. Drug Co., 149 Mo.App. 554; Hannah v. Butts, 14 S.W.2d 31; 26 C. J. 1149, 1062, 1141; Paretti v. Rebenack, 81 Mo.App. 494; Edwards v. Noel, 88 Mo.App. 434; Davis v. Ins. Co., 81 Mo.App. 264; Lewis v. Land Co., 124 Mo. 672; Wade v. Ringo, 122 Mo. 322; Anderson v. McPike, 86 Mo. 293; Dunn v. White, 63 Mo. 181; Brown v. Railway Co., 187 Mo.App. 104; Stacey v. Robinson, 184 Mo.App. 61; Bradford v. Wright, 145 Mo.App. 630. (b) The evidence shows that plaintiff was guilty of such want of ordinary prudence in failing to avail himself of means of knowledge close at hand and readily accessible as to preclude him from claiming that he was misled by the representations. United Breeders Co. v. Wright, 134 Mo.App. 717; Och v. Ry. Co., 130 Mo. 27; First Nat. Bank v. Hall, 129 Mo.App. 286; Hughey v. Trout, 196 S.W. 1065; Austin v. Cooperage Co., 285 S.W. 1015; Crim v. Crim, 162 Mo. 544; Hall v. Ry. Co., 209 S.W. 582. (c) Even though plaintiff signed the release under a misapprehension as to its contents, the release was not effectual until delivered, and at the time of its delivery plaintiff had ample opportunity to know its contents. 13 C. J. 307; In re Narvones, 146 N.Y.S. 922, 161 A.D. 563; Laprade v. St. Ry., 205 Mass. 77; Hart v. Wire Co., 91 Mo. 414; North St. Louis B. & L. Assn. v. Obert, 169 Mo. 507; American Copying Co. v. Muleski, 138 Mo.App. 419; Stimson v. Brinkman, 190 S.W. 647. (d) Plaintiff ratified and affirmed the contract of release when he accepted benefits under it. 13 C. J. 624; Light & Power Co. v. Machine Co., 170 Mo.App. 224. (e) Plaintiff should have sought a rescission of the contract of release within a reasonable time after he discovered the fraud. His unreasonable delay precludes any right to a rescission now. Steam Heating Co. v. Gas Fixture Co., 60 Mo.App. 148; Long v. Vending Machine Co., 158 Mo.App. 662; Robinson v. Siple, 129 Mo. 208; First Methodist Church v. Berryman, 303 Mo. 475; Tower v. Pauly, 51 Mo.App. 75; Window Co. v. Cornice Co., 181 Mo.App. 318; Davidson v. Gould, 187 S.W. 591. (2) It was erroneous and prejudicial to permit plaintiff to say that he relied upon the representations made to him because this was a conclusion and not a statement of fact, and it invaded the province of the jury. 22 C. J. 502; Baker v. Trotter, 73 Ala. 277; Smith v. Lyons Salt Co., 177 S.W. 1057. (3) The verdict of the jury upon each count and in the aggregate is grossly excessive and is the result of passion and prejudice. Chambers v. Hines, 208 Mo.App. 222; Boyer v. Ry. Co., 293 S.W. 386; Meyers v. Wells, 273 S.W. 110; Taylor v. Ry. Co., 311 Mo. 604, 279 S.W. 115; Gilchrist v. Kansas City Rys. Co., 254 S.W. 161; Looff v. Kansas City Rys. Co., 244 S.W. 578; Kiefer v. St. Joseph, 243 S.W. 104; Mount v. Coal & Mining Co., 294 Mo. 603, 242 S.W. 943; Page v. Payne, 293 Mo. 600, 240 S.W. 156.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) In considering the issue in the release as raised by the demurrer only the evidence of the plaintiff and such parts of defendant's evidence as sustains the plaintiff's side of the issue is to be considered. Haughtaling v. Banfield (Mo. Sup.), 8 S.W.2d 1025; (2) The record makes a jury issue whether the purported release in evidence barred recovery on the first count of the petition. Haughtaling v. Banfield (Mo. Sup.), 8 S.W.2d 1025; Eigle v. Am. C. & F. Co., 287 S.W. 801; State ex rel. v. Trimble, 23 S.W.2d 166; State ex rel. v. Bland, 23 S.W.2d 1029; Rau v. Robinson, 260 S.W. (Mo. Sup.) 751.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Action for damages for personal injuries alleged to have been sustained by plaintiff while employed by defendant. The third amended petition upon which the case was tried is in two counts, each stating a separate and distinct cause of action.

The first count charges that plaintiff was in defendant's employ and on the 17th day of March, 1925, was assigned to work in close proximity to a combustion engine which was then in operation and which emitted noxious and poisonous gases and fumes containing carbon monoxide gas; that the engine was not properly and sufficiently equipped with exhaust pipes to carry the gases away and that the air about the place where plaintiff was required to work became permeated with poisonous gases, so that plaintiff, breathing the air so charged and permeated with poisonous gases, sustained carbon monoxide poisoning causing him serious and permanent injuries. Defendant is charged with a breach of its duty to furnish plaintiff a reasonably safe place in which to work in that it negligently failed to equip the exhaust on the engine with pipes to carry away the gases emitted; negligently failed to provide a means of ventilation by which the noxious and poisonous gases could be prevented from accumulating "at or about the place where plaintiff was required to work" and negligently failed to warn plaintiff of the danger from the discharge by the engine of poisonous gases at or about the place where he was working. The first count prays damages in the sum of $ 15,000.

The second count of the petition charges that plaintiff sustained injuries on the 30th day of June, 1925, caused by carbon monoxide poisoning on that date under substantially the same circumstances alleged in the first count. The allegations of negligence made in the second count are identical with those set out in the first count. The second count prays damages in the sum of $ 25,000.

In its answer to the first count defendant, after a general denial, pleads a written release by plaintiff under date of April 14, 1925, "releasing and discharging the defendant from any and all claims or causes of action on account of personal injuries sustained by plaintiff on the 17th day of March, 1925, while in the employment of defendant."

By reply plaintiff denied the allegations of the answer setting up a release in bar of the cause of action set out in the first count and alleged that if he signed the purported release "he had no knowledge of its contents and was induced to sign said instrument by fraudulent statements, promises and inducements made" to him by the agent of a liability insurance company in the manner and under circumstances detailed.

Defendant's answer to the second count is a general denial.

The jury found for plaintiff, on both counts of the petition, awarding damages on the first count in the sum of $ 10,000 and on the second count in the sum of $ 15,000. From the judgment for $ 25,000 the defendant appealed.

Most of the testimony bearing upon respondent's alleged injuries and the nature and extent thereof related to the injuries charged to have been caused by and resulting from the inhalation by plaintiff of carbon monoxide gas on June 30, 1925. All of appellant's assignments of error, which are briefed, with one exception, relate to the first count, the only assignment of error as to the second count being that the verdict on that count is grossly excessive.

At the time he received the injuries alleged to have been sustained on March 17, 1925, and which is the basis of the cause of action set out in the first count of the petition, plaintiff was fifty-six years of age and was employed by the defendant as a carpenter at a wage of $ 7.50 per day. On that date he was assigned by his foreman to work at a "boring machine," in the box factory, at defendant's plant in the city of St. Louis. This machine was operated with power supplied by a ten-horse power, coal oil, combustion engine. A concrete foundation for this engine was being constructed and the engine had been moved and placed on a temporary foundation within four or five feet of the "boring machine." Prior to the time the engine was moved it was equipped with an exhaust pipe which carried gases and fumes from the exhaust outside of the building. When the engine was moved to the temporary foundation the exhaust pipe was disconnected and had not been replaced on March 17th. The plaintiff testified that as he worked at the boring machine on that morning he could feel the exhaust from the engine striking against his left leg; that the fumes and gases discharged by the engine caused him to become sick nauseated and dizzy; that about 11:20 A. M. he made complaint to his foreman who directed him to "stick it out until noon," stating that at noon the exhaust pipe would be attached; that shortly thereafter he "keeled over" and "didn't know a thing" until he "woke up about five o'clock in the evening" in Barnes Hospital. At the hospital a tentative diagnosis was made that respondent was suffering from carbon monoxide poisoning. He was at the hospital about four days, remained at home three or...