Ensler v. Missouri Pac. R. Co.

• Citation: 23 S.W.2d 1034,324 Mo. 530
• Decision Date: 03 February 1930
• Docket Number: 28184
• Parties: William H. Ensler v. Missouri Pacific Railroad Company, Appellant
• Court: United States State Supreme Court of Missouri

23 S.W.2d 1034

324 Mo. 530

William H. Ensler v. Missouri Pacific Railroad Company, Appellant

No. 28184

Supreme Court of Missouri

February 3, 1930

Appeal from St. Francois Circuit Court; Hon. Peter H. Huck Judge.

Reversed and remanded.

Thos J. Cole, Arnot L. Sheppard and J. C. Sheppard for appellant.

(1) The demurrers to the evidence at the close of plaintiff's case and at the close of the whole case should have been sustained because the evidence conclusively shows that the injuries of plaintiff were the result of his own negligence. Kube v. Coal & Mining Co., 209 S.W. 614; Wojtylak v. Coal Co., 188 Mo. 260. (2) Plaintiff was the roundhouse foreman and charged with the duty of inspecting, repairing and controlling the engines and machinery at said roundhouse, and he cannot recover for injuries resulting from his own negligence in the performance of any of such duties. 39 C. J. 855, par. 1072; Bradley v. Tea & Coffee Co., 213 Mo. 320; Knorpp v Wagner, 195 Mo. 637; Roberts v. Telephone Co., 166 Mo. 370; Gluson v. Excelsior Mfg. Co., 94 Mo. 201; McCarver v. Lead Co., 268 S.W. 687; Humphrey v. Lusk, 196 Mo.App. 442; Keller v. Blurton, 183 S.W. 710; Kelley v. Railroad, 105 Mo.App. 365. (3) The plaintiff cannot recover, and the court should have sustained the demurrers to the evidence at the close of the case, for the reason that there was no sufficient evidence to go to the jury that the release was procured by fraud practiced on the plaintiff; but the evidence clearly shows that plaintiff was negligent in signing the release without reading it or having it read to him, and cashed the check, which showed on its face that it was a complete settlement for plaintiff's injuries, after keeping it for nearly two months. Woolsey v. Wells, 281 S.W. 695; Crim v. Crim, 162 Mo. 544; Bank v. Hall, 129 Mo.App. 286; Anderson v. Drug Co., 149 Mo.App. 554; Manufacturing & Imp. Co. v. Carle, 117 Mo.App. 581; Hall v. Ry. Co., 209 S.W. 582; Austin v. Cooperage Co., 285 S.W. 1015; Magnolia Petroleum Co. v. McFall, 12 S.W.2d 15; Florida East Coast Ry. Co. v. Thompson, 111 So. 525; Central Georgia Ry. Co. v. Garner, 122 So. 429. (4) The court erred in giving to the jury plaintiff's Instruction 5, which does not require the jury to find that the plaintiff actually relied on the representation made by the claim agent, but only tells the jury that he had a right to rely on the representations made by the claim agent.

C. O. Inman and W. H. Douglass for respondent.

(1) The demurrer of the defendant at the close of the whole case was properly overruled. The injury to plaintiff was not caused by his failure to inspect and repair the defective engine, as the engine could not be repaired at Bismarck, and when engines could not be repaired at Bismarck it was the duty of the plaintiff to notify the master mechanic at Poplar Bluff, and the evidence shows that plaintiff did notify the master mechanic at Poplar Bluff of the defect in the engine and tender, and the master mechanic failed to make the repairs. Plaintiff had done all that he could do under the circumstances; also he had no right to take the engine out of use except by orders of the master mechanic. Kelley v. Railroad, 105 Mo.App. 365. (2) The release pleaded by defendant was fraudulently obtained by the claim agent of the defendant on representations of the agent to plaintiff that the release was a receipt, and in procuring plaintiff's signature thereto on these representations at a time when plaintiff was sick in bed, suffering from pain and unable to read. Houghtaling v. Banfield, 8 S.W.2d 1023; Green v. Railroad, 213 Mo.App. 583; Childers v. Railroad, 218 S.W. 441; Reddick v. Light & Power Co., 210 Mo.App. 260. (3) There was no error in Instruction 5 for failure to require the jury to find that plaintiff did rely on the representation of the claim agent in signing the release, for the evidence shows that plaintiff did rely on these representations; also, that was not a contested issue in the case; also, the instruction did require a finding of the jury on all contested issues with reference to the release, and the jury was not misled nor defendant injured by this instruction. Also it has often been held that instruction need not cover uncontested issues. State ex rel. v. Trimble, 260 S.W. 1003; Koenig v. Rys. Co., 243 S.W. 118; Harper v. Blandon, 274 S.W. 845; Barkbigler v. Milling Co., 275 S.W. 599; Schulte v. Company, 282 S.W. 181; Irwin v. McDougal, 217 Mo.App. 645.

OPINION

Ragland, J.

This is a suit under the Employer's Liability Act in which plaintiff seeks to recover damages for personal injuries caused, as it is alleged, by defendant's negligence. At the time he received his injuries plaintiff was in the employ of defendant at Bismarck, Missouri, as a roundhouse foreman. His duties as such foreman were to inspect, and to repair or cause to be repaired, when in need of repairs, the engines coming into such roundhouse, if such repairs could be made with the material, tools and appliances furnished by defendant for that purpose at Bismarck: as to cases in which required repairs could not be made at Bismarck it was plaintiff's duty to notify one Reinhardt, defendant's master mechanic at Poplar Bluff, Missouri.

In the early morning of December 28, 1924, while it was still dark, plaintiff climbed up on one of defendant's engines which was standing just outside of the roundhouse for the purpose of making an inspection. As he was leaving the cab and coming down the step for the purpose of getting down off the engine, he slipped and fell to the ground, falling on his back across one of the rails of an adjoining track and thereby sustaining the injuries for which he sues. He alleges in his petition, and his evidence tends to show, that his fall was caused by certain defects in the engine and its tender, namely: (1) the floor of the tender was lower than that of the cab, causing the iron plate or apron which afforded the walk-way between the engine and the tender to tilt or lie on an incline; (2) the plate was smooth, whereas such a plate ordinarily has a roughened surface; and (3) a leaky arch tube of the boiler in the engine permitted steam to escape which condensed and froze on the plate, giving it an icy surface. The defects just mentioned had existed for sometime, at least three or four weeks, before plaintiff received his injury, according to his testimony. He stated that they were of such character that they could not be remedied at Bismarck and that he had reported them, verbally and by letter, to Reinhardt. When confronted with his reports of repairs on the engine in question, of dates December 5th, 9th and 23rd, respectively, made by him to the master mechanic on specially prepared forms furnished by defendant and in which none of the defects now complained of was mentioned, plaintiff offered a two-fold explanation: He said: first, that the reports were prepared by men under him who did the work of inspecting and repairing, he merely endorsing his approval on them, and they (the men making the inspections and repairs) could have overlooked the defects in question; and, second, that they were not supposed to "find everything on those engines," that some things were omitted "to keep them from the Government man." His counsel had served notice on defendant to produce at the trial the letters he claims to have written Reinhardt with reference to the condition of the platform apron and the leaky arch tube of the boiler; Reinhardt denied receiving such letters, and of course did not produce any; he further denied having received notice or knowledge of any kind or from any source of the conditions just mentioned prior to plaintiff's injury.

Following his injury plaintiff was confined to his home until about January 17th, at which time he resumed his duties as roundhouse foreman. About a week thereafter his physical condition became such that he was unable to continue at work. He then went, or was sent by one of defendant's physicians, to a hospital in St. Louis. He remained in the hospital, except during short intervals, until May 12, 1925. At that time he was unable to work and so continued up to the time of the trial, March, 1927.

On July 13, 1925, plaintiff received from defendant $ 2300, and at that time executed a paper which recited that said sum was paid and received in full settlement of all claims growing out of the injuries for which plaintiff now sues. His signature was witnessed by his wife. The release was pleaded in bar by defendant. Plaintiff replied by charging that it was obtained through the false and fraudulent representations made by Kendall, defendant's claim agent. The testimony of plaintiff as to the circumstances under which the paper was signed, omitting repetitions, was as follows:

"I told Mr. Kendall that I couldn't see it and he pointed his finger to show me where to sign my name. My eyes were so I couldn't read then.

"Well your wife was there -- she could read, couldn't she? A. She could read, but wasn't there; she said she was going to town and I suppose she went. Q. Isn't that her signature on that release or receipt, as witness (indicating on exhibit)? A. She came in after I had signed it and Mr. Kendall asked her to sign it. I didn't ask her to read it over to me because she wasn't in there when I signed it. I suppose she had gone to town. It wasn't read to me. . . .

"I was in bed. It was on July 13, 1925, in my home in Bismarck, in the front bedroom. I think he was at the house four times and he was at the hospital to see me about three times. He was always friendly with me, posed to be my friend. . . . Sure, I thought he was my friend. . . .

"He rapped at the door and Mrs. Ensler let him in and he asked her where I was and she says, 'In the...