Culver v. Kurn

• Citation: 193 S.W.2d 602,354 Mo. 1158
• Decision Date: 11 March 1946
• Docket Number: 39505
• Parties: James H. Culver, Appellant, v. J. M. Kurn and Frank A. Thompson, Trustees of the St. Louis-San Francisco Railway Company
• Court: Missouri Supreme Court

193 S.W.2d 602

354 Mo. 1158

James H. Culver, Appellant, v. J. M. Kurn and Frank A. Thompson, Trustees of the St. Louis-San Francisco Railway Company

No. 39505

Supreme Court of Missouri

March 11, 1946

Rehearing Denied April 8, 1946.

Appeal from Newton Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

H A. Gardner for appellant.

(1) The release pleaded by defendants and relied upon by the defendants as a defense to this action, is void and in violation of Sec. 55, Title 45, U.S.C.A., under the Federal Employers' Liability Act as a contract, regulation, or device taken by defendants for the purpose and with the intent to enable defendants to exempt themselves from liability under said act. Duncan v. Thompson, Trustee, 86 L.Ed. 575, 315 U.S. 1; Railroad v. Schubert, 56 L.Ed. 911, 224 U.S. 603. (2) The rule or regulation promulgated by defendants, if they had such a rule, that all employees involved in an accident were required to execute releases before they continued to work, is also void under said section. Thompson v. Missouri Pacific, 15 F.2d 28; State ex rel. St. Louis Car Co. v. Hughes, 152 S.W.2d 193; Erie Railroad Co. v. Margue, 23 F.2d 664; Miller v. Busey, 186 S.W. 983; Davis v. Crane, 12 F.2d 355; Missouri Digest, Trial, sec. 191; Moore v. Industrial Commission of Ohio, 197 N.E. 403. (3) Instruction 8 is erroneous. In that it assumes there was a promise by defendants to re-employ plaintiff at the time the release was signed. Whether or not such a promise was made is a disputed fact; and, it is error to assume in an instruction any fact in dispute. Rollins Case, 220 S.W. 1022. (4) The provision in the release that "the execution hereof being conclusive evidence that said trustees have made me such a promise" is void, because it is an attempt to substitute a method of proof of such promise in violation of the ordinary rules of evidence. Rollins v. Businessmen's Accident Assn., 220 S.W. 1022; First Natl. Bank v. White, 120 S.W. 36; Wertheimer v. Traveler's Protective Assn., 64 F.2d 435; Hartman v. Railroad, 182 S.W. 148. (5) Instruction 8 is further erroneous in that it informs the jury that if, following the execution of the release, the defendants did employ plaintiff for one day or longer, . . ., "then you are instructed that there was sufficient consideration for said release." The mere employment of plaintiff by defendants, without any promise to do so as an inducement to execute the release, was not sufficient consideration to support the release. (6) Instruction 12 is erroneous in that it informed the jury that even though they found that Dr. McFarland stated to plaintiff that his ear would give him no trouble in the future, yet such statement did not constitute such fraud as would invalidate the release. Yeager v. St. Joseph Lead Co., 12 S.W.2d 520; Tattershall v. Yellow Cab Co., 37 S.W.2d 659.

M. G. Roberts, Frank C. Mann and Mann & Mann for respondents.

(1) A contract of employment without a definite term may be terminated at the will of either party, with or without cause. Brookfield v. Drury College, 139 Mo.App. 339, 123 S.W. 86; Davis v. Pioneer L.I. Co., 181 Mo.App. 353, 172 S.W. 67. (2) A release executed in consideration of one day's reemployment is supported by a good consideration and is valid. Cory v. Chicago, B. & K.C.R. Co., 100 Mo. 282, 13 S.W. 346; Bethurkas v. Chicago, M. & St. P.R. Co., 249 S.W. 438; Forbs v. St. Louis, I.M. & S.R. Co., 107 Mo.App. 661; Hogard v. Kansas City R. Co., 202 S.W. 431. (3) A written instrument, such as is here involved, wherein one, for a valid consideration, releases and discharges a cause of action which he has against another is not such a "contract, rule, regulation or device" executed for the purpose or intent of "exempting itself from any liability" within the contemplation of Section 55, Title 45, U.S.C.A. If it were, then every injury to a railroad employee falling within the terms of the Act must inevitably be brought to the courts for settlement. Patton v. Atchison, T. & S.F.R. Co., 59 Okla. 155, 158 P. 576; Duncan v. Thompson, 315 U.S. 1, 86 L.Ed. 575. (4) Defendant's Instruction 8 is not erroneous: It assumes no fact which the jury was required to find. (5) The recital in the release that plaintiff had been promised employment for one day as a mason helper is a contractual provision which cannot be contradicted by parol evidence. Gates Hotel Co. v. Federal Inv. Co., 331 Mo. 107, 52 S.W.2d 1016; Burk v. Walton, 337 Mo. 781, 86 S.W.2d 92; Ezo v. St. Louis S. & R. Co., 87 S.W.2d 1051. (6) Defendant's Instruction 12 is not erroneous: Dr. McFarland was not the agent of defendant and no statement by him to plaintiff concerning his physical condition would invalidate the release. (7) Dr. McFarland's statement to plaintiff that his ear would give him no trouble in the future was not a statement of an existing condition but the mere expression of opinion as to a future occurrence and cannot constitute fraud, which would invalidate the release. Conklin v. Mo. Pac. R. Co., 331 Mo. 734, 55 S.W.2d 306; Wingfield v. Wabash R. Co., 257 Mo. 347, 166 S.W. 1037.

OPINION

Clark, J.

Plaintiff's petition alleges personal injuries received by him while employed by defendants and due to their negligence in the operation of a railroad as a common carrier in interstate commerce. Verdict and judgment were for defendants and plaintiff has appealed.

Appellant assigns as error the trial court's action: (1) in holding a release, executed by appellant after the injury, valid unless procured by fraud and in admitting same in evidence over appellant's objection; (2) in giving instructions numbered 8 and 12 at the request of defendants.

In their answer respondents set up the release as a bar to the suit. In his reply appellant alleged that the release is without a valid consideration, was procured by false and fraudulent representations, and is void under Section 55, Title 45, U.S.C.A.

Appellant, with his foreman, Howe, and other workmen was riding on a railroad motor car on defendants' track when a train was observed approaching from the opposite direction. In response to an order from some one (appellant says it was the foreman) the men jumped from the motor car. One workman was killed and appellant received an injury to his knee and claims to have received a blow on the side of his head from a flying object resulting in an injury to one of his ears. Shortly after the collision defendants' claim agent, Blume, appeared and, after the coroner had held an inquest as to the dead workman, took appellant and two other workmen in his automobile to Steelville in search of a doctor. No doctor being found there they went on to Lebanon and consulted Dr. McFarland. The latter was not on the medical staff of defendants, but on this occasion was employed and paid by the claim agent. The doctor examined and bandaged appellant's knee and appellant says he also examined his ear and told him there was nothing the matter with it and would give him no trouble in the future. The doctor denies that he made any such statement and says that appellant made no complaint about his ear; that there was no external evidence of an injury to it and he did not examine it. After the doctor had been consulted the claim agent requested the men to sign releases and one of them did so. Appellant did not sign that evening. He says the claim agent came to see him the next morning before time for him to go to work and told him he had talked with the doctor and "he says there is nothing wrong with you." Then appellant says: "I thought it over and I couldn't be without work and the doctor had told him there was nothing that would occur later, so I pretty nearly had to go to work." Appellant said he knew it was a rule of the company after he had been "involved in an accident of that kind" he couldn't go back to work until he had signed some sort of a release. He also said the claim agent told him "if anything happened to us later, he would pledge his word and honor them releases wouldn't harm us in no way."

Appellant introduced medical testimony that at the time of trial he was totally deaf in one ear and this was due to an injury.

For respondents, Blume denied that he made the statements attributed to him by appellant; denied that he was present when appellant signed the release the morning after the collision; said it was his duty to investigate accidents, take statements and settle claims, but not to take releases on form G-43; that it was the foreman's duty to take G-43 releases, and he had another form, G-39.

Howe, respondents' foreman, said he took the release from appellant the next morning after the collision and Blume was not present; that he kept a supply of release forms; that the company had a rule that where men had been involved in an accident they couldn't go back to work "until a release was signed or some adjustment made." He said he told the men "they had to sign a release or lay off until some kind of a settlement was made." Four days after the collision, and because of it, this witness was discharged, but was re-employed about six weeks later.

The release signed by appellant is on a printed form, G-43, with blank space in which was inserted the date and place of injury. Among other recitals it states: that appellant was injured and claims that respondents are liable and they deny liability; that respondents will not retain in their employment any person who has an unadjusted claim; that appellant desires to be re-employed and in consideration of the promise of employment for one day, and as much longer as satisfactory to respondents, the release being conclusive evidence of such promise, he does compromise his claim and release responden...