Forsythe v. Horspool

• Decision Date: 03 May 1932
• Docket Number: No. 21171.,21171.
• Court: Missouri Court of Appeals
• Parties: FORSYTHE v. HORSPOOL.<SMALL><SUP>*</SUP></SMALL>

49 S.W.2d 687

FORSYTHE v. HORSPOOL.^*

No. 21171.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

As Modified on Denial of Rehearing May 18, 1932.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Samuel Jackson Forsythe against Henry J. Horspool. Judgment for plaintiff, and defendant appeals.

Affirmed.

Superseding opinion in 28 S.W.(2d) 401 and conforming to opinion of Supreme Court in 40 S.W.(2d) 611.

Edward H. Robinson, A. E. L. Gardner, William H. Allen, and John S. Marsalek, all of St. Louis, for appellant.

Campbell Allison, Joseph A. Falzone, and Orval C. Sutter, all of Clayton, for respondent.

NIPPER, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on the 12th day of December, 1924. There was a verdict and judgment for plaintiff, and defendant has appealed.

The petition alleges that on the above-named date the appellant and two other defendants were engaged in the general contracting and construction business, and were constructing a dwelling house in St. Louis county, Mo., and plaintiff was in their employ as a carpenter; that, in the construction of the building, the defendants, their agents, servants, or employees, erected or caused to be erected a scaffold which was attached to said building so being constructed at said place; that said scaffold was constructed of four pieces of timber placed upright about twelve feet apart along the side of said building, and had cross pieces commonly known as "lookouts" nailed to them and to the building, forming a horizontal support, upon which planks or boards were laid forming a platform upon which the workmen stood while engaged in their work; that the planks forming the platform were about sixteen feet in length, and were laid from the end of the lookouts, and projected over into the middle section approximately four feet; that the planks used for the floor or platform of the middle section were shorter, or about ten feet in length, and rested upon the ends of the planks of the other section so protruding as aforesaid; that the inner half of said platform was under the projecting roof, and the outer half extended out from said roof so as to enable workmen to stand thereon, and place the first course of shingles in position; that on the above-named date, while plaintiff was engaged as a carpenter to lay shingles on said roof, and while in the exercise of due care for his own safety, the defendants, their agents or servants, negligently and carelessly ordered and caused three bales of heavy shingles to be passed through a window in the wall of said building, and out and upon the middle section of said scaffold at a position under said roof where the same could not be seen by plaintiff; that the platform was sufficient to have borne the weight of plaintiff and his coworker with him, but was insufficient to support their weight after the shingles were placed thereon; that when plaintiff and his coworker, working from opposite ends of said scaffold toward the middle, and while they were standing upon said middle section, said floor or platform gave way, and plaintiff fell violently to the ground, and received certain injuries to his body, head, arms, and legs.

It is unnecessary to set out in detail all the injuries alleged to have been sustained by plaintiff.

The petition further alleges that the defendants, their agents, servants, or employees, knew, or by the exercise of reasonable care might have known, that the middle bent of said scaffold was so constructed that it would not support the weight of two workmen, and in addition thereto the shingles; that the plaintiff did not know, and had no reasonable grounds to suspect that the shingles had been placed thereon.

There were five assignments of negligence in the petition: First, failure to provide a reasonably safe place for plaintiff to work; second, failure to provide and use boards of sufficient length for the middle bent of said scaffold, so that the ends would rest upon the cross-arms or lookout; third, in erecting, maintaining, and using a scaffold which was not well and safely supported, and so secured as to insure the safety of persons working thereon, in violation of section 6802, Revised Statutes Missouri 1919; fourth, negligently and carelessly ordering and directing other employees to place the shingles upon said scaffold where they could not be seen by plaintiff; fifth, failure to warn plaintiff of the fact that the shingles had been placed on the scaffold.

The answer, in addition to a general denial, pleads contributory negligence on plaintiff's part, to the effect that the scaffold was constructed, erected, and built by plaintiff out of material of the best quality, and that, if plaintiff was injured, his injuries were caused by his failure to erect the scaffold in a proper manner. The answer pleads further contributory negligence on plaintiff's part, in that plaintiff placed the shingles there himself. As a further answer to the petition, defendants plead that plaintiff, for the consideration mentioned therein, executed to defendants full release and acquittances of his cause of action. Three releases are set out in the answer as having been executed by plaintiff, one for $180, executed on the 6th day of February, 1925, one for $30, executed on the 12th day of December, 1924, and one for $500, executed on the 6th day of January, 1926. These releases purported to release said defendants from all claims, demands, and damages, on account of his injuries received on said 12th day of December, 1924.

The reply denied that at any time plaintiff had released his right or cause of action against defendants; alleged that any sums of money paid therein were paid under an agreement to pay him $30 per week as wages during the time he was incapacitated, and that all receipts therefor were executed in the belief and under the assurance by the defendants that the same were only ordinary receipts on account of such wages; that said agreement had been breached by the defendants, and that the releases pleaded in the answer were obtained without his knowledge or consent, through fraud, deceit, and imposition, practiced upon him by the defendants at a time when his mind was impaired as a result of the injury described in the petition, and he was thereby incapable of understanding the purport and meaning thereof; and that such releases are null and void. Plaintiff dismissed as to all the defendants except the appellant.

The evidence discloses that plaintiff received his injuries on the date mentioned in the petition. He was a carpenter, working on a building, and was engaged in placing shingles on said building. While so placing these shingles, he was working upon a platform or a scaffold, engaged at the time with another carpenter. The building was about thirty-two feet long, and the scaffold extended approximately along the entire length of the building. The scaffold was formed by putting up certain uprights, about eighteen feet high, a few feet from the building, with two in between them. The distance between the uprights was approximately ten feet. Boards, called "lookouts," extended from each upright to the building. On these lookouts, boards were laid to form each depth of the platform or scaffold. The uprights and lookouts were put up under the order and direction of defendant's foreman. Plaintiff and his coworker put the boards on the lookouts. The platform was made of two boards about sixteen feet in length and two inches thick, lying upon the lookouts, with a third similar board about eight feet long lying on top of the other boards in the middle space. Each sixteen-foot board extended from each end of the building to near the center of the scaffold. In the middle space the third board was put on top of the other long boards. A short time prior to plaintiff's injury, he was at one end of the platform and his coworker at the other working towards each other. While they were thus working, bundles of shingles were passed out of a window and placed upon this platform, about the middle thereof, by other employees. When plaintiff and his coworker came to the middle part of the scaffold, near where the shingles were, and with the shingles between them, the platform gave way in the middle, causing plaintiff to fall to the ground.

The evidence on the part of the plaintiff discloses that neither he nor his coworker had any knowledge of these shingles being placed on the scaffold. They were located near and working on the roof, and the evidence discloses that they could not see and that they did not know that shingles were being placed on the scaffold. The evidence further discloses that the scaffold had been tested by the weight of two or three men to show that it was sufficient and substantial to hold all weight that was necessarily expected thereon. Plaintiff stated that he did not know anything about the shingles being placed thereon, for, if he had known, the scaffold never would have fallen, for he would have moved the shingles. Some one had placed the shingles on it through an upstairs window without the knowledge of the plaintiff or his coworker, and the evidence also discloses that they did not expect or anticipate that this would be done. Plaintiff also testified that the boards used were all they had to use for this platform.

The evidence discloses that the agents of an insurance company made settlements with plaintiff in behalf of defendant, as set out in the answer, and three separate releases were executed. One of these settlements was made with plaintiff's attorney being present. We will refer to the facts relative to the execution of these releases later.

Plaintiff testified that, from the time the scaffold fell and he received his injuries, it was more than two years before he could remember anything which transpired. He testified that he had no recollection as to...