Dyrssen v. Union Electric Light & Power Company
Decision Date | 24 May 1927 |
Docket Number | 25488 |
Parties | James Dyrssen, Appellant, v. Union Electric Light & Power Company |
Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County; Hon. G. A Wurdeman, Judge.
Affirmed.
John C. Doyle and George F. Heege for appellant.
Defendant's instruction in the nature of a demurrer given by the court at the close of plaintiff's evidence was error and should not have been given. Sec. 1238, R. S. 1919; O'Dell v National Lead Co., 243 S.W. 397; Rau v Robertson, 260 S.W. 755; Green v. Railroad Co., 251 S.W. 931; Carrol v. Peak, 156 Mo. 451; Tait v. Locke, 130 Mo. 282.
A. E. L. Gardner for respondent.
(1) The instruction given by the court at the close of plaintiff's evidence, directing a verdict for defendant, was authorized by the evidence. Plaintiff was sui juris, in possession of his faculties, able to and had full opportunity to read the instrument which he signed. Under this situation the law presumes that he knew its contents, and he will not be permitted to take advantage of his own failure or negligence and be heard to say that the instrument did not express the real contract. Mateer v. Ry. Co., 105 Mo. 320, 351; Crim v. Crim, 162 Mo. 552; Reddick v. Light & Power Co., 210 Mo.App. 260; O'Shea v. Lehr, 182 Mo.App. 690; Ely v. Sutton, 177 Mo.App. 553; Paris Mfg. & Imptg. Co. v. Carle, 116 Mo.App. 581; Anderson v. Drug Co., 149 Mo.App. 554; Hughey v. Truitt, 196 S.W. 1065; Hall v. Ry. Co., 209 S.W. 582. (2) A compromise of a doubtful claim is a good consideration for a contract. Wood v. Telephone Co., 223 Mo. 565; Livingston v. Dugan, 20 Mo. 102; Hill v. Coal Co., 124 Mo. 153.
This is an action to recover damages for a wrist injury sustained by plaintiff while cranking a Ford automobile furnished him by defendant in connection with his duties as meter inspector. The trial judge sustained a demurrer to plaintiff's evidence, whereupon the jury returned a verdict for defendant, and from the judgment rendered thereon plaintiff has appealed.
Plaintiff alleged that defendant was negligent in failing to furnish plaintiff with reasonably safe tools and appliances with which to work in that "the spark control and the commutator on said Ford automobile was defective and that the said spark control caused the commutator on said automobile to stay advanced too far, thus causing the engine of said automobile to run backwards instead of forward and thus caused said iron crank to fly backwards with great force and violence and suddenly strike plaintiff on the right wrist."
Defendant's answer consisted of a general denial, and pleas of assumption of risk, contributory negligence, and the execution and delivery of a full release.
In reply plaintiff denied each and every allegation contained in defendant's answer, and by way of further reply stated that
The release pleaded in defendant's answer is as follows:
Appellant's only assignment of error is that "the court erred in reading to the jury and in giving defendant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case." Such action was nothing more than telling the jury what was the legal effect of the plain undisputed evidence before it. Such has been held not to deprive the party against whom the verdict was directed of his right to a jury trial. [38 Cyc. 1534; Mallen v. Longworthy, 70 Ill.App. 376; 26 R. C. L. 1060; Hopkins v. Nashville, R. Co., 96 Tenn. 409, 32 L. R. A. 354.]
Section 1238, Revised Statutes 1919, provides that issues such as were made by the answer and reply relating to the alleged release "shall be submitted with all the other issues in the case to the jury, and a general verdict or finding upon all the issues, including the issue or issues of fraud so raised, shall be sufficient." It follows that if the issue of fraud thus raised is not supported by evidence sufficient to go to the jury, defendant's demurrer was properly given.
Respondent says that "plaintiff was sui juris, in possession of his faculties, able to and had full opportunity to read the instrument which he signed," and that "under this situation the law presumes that he knew its contents, and he will not be permitted to take advantage of his own failure or negligence and be heard to say that the instrument did not express the real contract." This is expressive of a well recognized general rule observed in Crim v. Crim, 162 Mo. 544, l. c. 552; Mateer v. Ry. Co., 105 Mo. 320, l. c. 351, 354, and other cases cited by respondent.
In his reply plaintiff stated that he was induced to sign the alleged release "by virtue of the misreading said release to plaintiff by defendant's agents." He now contends that under the proof adduced in support of this allegation he is not amenable to the general rule above indicated, and for justification leans heavily upon the following expression by Judge Goode in Tait v. Locke, 130 Mo.App. 273, l. c. 282:
The above expression must be read and understood as qualified by Judge Goode's preceding words that "the defense of fraud cannot be rejected, unless the inference is irresistible that defendant failed to observe ordinary care to learn the contents of the paper in controversy before signing it." Its proper interpretation is thus well stated by Judge Nortoni in O'Shea v. Lehr, 182 Mo.App. 676, l. c. 690 (italics ours):
Plaintiff's evidence tended to show that his foreman was Oscar Hoffman to whom he reported the defective condition of the car on the...
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