Edwards v. Morehouse & Mfg.
| Decision Date | 27 March 1920 |
| Docket Number | No. 2470.,2470. |
| Citation | 221 S.W. 744 |
| Court | Missouri Court of Appeals |
| Parties | EDWARDS v. MOREHOUSE & MFG. |
Appeal from Circuit Court, Butler County; Almon Ing, Judge.
Action by William Edwards against the Morehouse Stave & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.
See, also, 204 S. W. 545.
J. C. Sheppard and A. L. Sheppard, both of Poplar Bluff, for appellant.
John A. Gloriod and Hill & Phillips, all of Poplar Bluff, for respondent.
The plaintiff lost his right arm by reason of same coming in contact with a rapidly revolving drum or barrel saw while helping operate same as an employ-6 of defendant at its stave mill at Fisk, Mo. This saw, as its name indicates, is shaped like a large barrel or drum, revolving on an axis, and was being used to cut barrel staves from sawlogs. The saw was raised from the floor by framework, and underneath the saw was a chute to catch the sawdust and conduct same, sliding down by its own weight, to and through a hole in the floor into a conveyor, which carried same to the engine for fuel. The negligence alleged was that this chute was constructed in an almost horizontal, but slightly oblique, position, when it should have been in a (more nearly) perpendicular position under the saw so as to cause the sawdust to more readily pass down the chute to the conveyor; that this improper construction of the chute caused the sawdust to frequently accumulate and clog in the chute, rendering it necessary for plaintiff to loosen and displace this sawdust so same would pass down to the conveyor; that this was so done by use of a stick, and in so doing by reason of a guard in front of the saw it was necessary for plaintiff to place his hand near the saw; that this made his work dangerous, as his hand was likely to be caught by the saw.
Plaintiff's evidence is that this chute was so nearly horizontal and had so little incline that the sawdust frequently clogged therein; that the usual and only method know not him of getting the sawdust to move and permit the further operation of the saw was for him to take a stick and reach down with it and loosen the sawdust. In doing this plaintiff's hand or wrist rested on the guard close to the revolving saw, and in punching and working with the stick in loosening and punching the sawdust down the chute his hand was in constant danger of coming in contact with the saw. On this particular occasion the sawdust became clogged in the chute, and plaintiff took a stick about 28 to 32 inches long, and was engaged in loosening up the sawdust in the manner mentioned when suddenly, and without plaintiff knowing just how or why, his wrist came in contact with the saw, and in an instant his hand was gone. He says he held the stick between his thumb and fingers, reaching down to the chute with the stick, his wrist resting on the guard in front of the saw. In doing this he was compelled to move his hand and wrist to some extent, and it is evident that in so doing his hand came nearer the saw than he intended, and same was caught by the teeth. The guard was some 12 to 14 inches from the saw teeth, and in this space he worked his hand and the stick.
This is the second appeal. See 204 S. W 545, for a more extended statement of the facts. The case was then remanded because of error in the instructions. The plaintiff again recovered, and defendant appeals.
After plaintiff's injury he was given first aid by a local physician and then taken to a hospital at Poplar Bluff, Missouri. Here his arm was amputated higher up so as to facilitate the healing. He was injured on April 4, 1916, and in just one week later he was discharged from the hospital. On the day of his discharge he was met by the agent of a liability insurance company interested in the matter, and is alleged to have signed, by making his mark, a release of defendant's liability, reciting therein that both parties, plaintiff and this defendant, desired to compromise the matter, and have agreed to do so for the sum of $92, which is to be paid Dr. Cadwell. Then follows a release and discharge of defendant from all liability, and a recital that defendant also agrees to pay Dr. Greathouse. The doctor last mentioned rendered first aid to plaintiff after his injury, and Dr. Cadwell, mentioned, operated the hospital where plaintiff was taken and his arm amputated. It is conceded that plaintiff became unconscious shortly after his injury, and did not know till afterwards of his being taken to the hospital or of the amputation of his arm. This court held on the former appeal that, notwithstanding plaintiff was unconscious and made no request or contract for medical services, he was obligated to pay for same, and that the payment of the doctor bills by defendant or any one for it was a sufficient consideration for the release in question.
On this trial plaintiff sought to avoid this release solely on the ground that plaintiff was at the time of signing physically and mentally incapacitated to contract, and that defendant wrongfully obtained the release when plaintiff did not understand same. At defendant's instance the jury was instructed that the release was binding unless the jury found that at the time of signing same plaintiff was not in his right mind, and did not know what he was doing. As to the release being a bar to plaintiff's cause of action, the instruction is too favorable to defendant, since such release is not binding when fraudulently or wrongfully procured, as well as when plaintiff is incapacitated. Section 1812, R. S. 1909. Loveless v. Cunard Mining Co., 201 S. W. 375, 381; Hubbard v. Lusk, 181 S. W. 1028; Logan v. Railroad, 166 Mo. App. 490, 500, 148 S. W. 444.
It is also the law that where the release is not merely voidable, but is void, as where the party making same is mentally incapacitated or "not knowing what he is doing," as defendant's instruction puts it, then he is not required to pay or tender back the consideration received as a condition precedent to maintaining the suit. Loveless v. Mining Co., 201 S. W. 375, 380; Chalmers v. Railways, 153 Mo. App. 55, 60, 131 S. W. 903; Malkums v. Cement Co., 150 Mo. App. 446, 131 S. W. 148; Hubbard v. Lusk, 181 S. W. 1028, 1031. The case of Reed v. Gill & Sons, 201 Mo. App. 457, 212 S. W. 43, is not contrary to our holding, for the release there was not void, but only voidable. We ruled on the former appeal that there was evidence sufficient to make this a jury question.
The evidence for plaintiff is stronger than on the other appeal. Plaintiff stoutly testified that he had no recollection of passing events till some two months after his injury, during part of which time he acted as city marshal of the town of Fisk, his chief duties being, it seems, to collect the dog tax. All that the jury had to believe was that plaintiff was mentally incapacitated to contract the day he left the hospital one week after his injury, for that is when he signed the release. Several witnesses testified to irrational acts and conduct at a later date.
Plaintiff's exaggeration of the duration and extent of his mental incapacity went to his credibility, but the rule is that the jury may or may not reject his entire evidence even when they believe a witness has willfully testified falsely to a material fact. The agent who procured this...
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