Hackler v. Natchez & S. Ry. Co.

• Citation: 157 Miss. 432,128 So. 325
• Decision Date: 12 May 1930
• Docket Number: 28692
• Parties: HACKLER v. NATCHEZ & S. RY. CO. et al
• Court: United States State Supreme Court of Mississippi

128 So. 325

157 Miss. 432

HACKLER v. NATCHEZ & S. RY. CO. et al

No. 28692

Supreme Court of Mississippi

May 12, 1930

Division A

1. MASTER AND SERVANT.

Whether injuries sustained when falling from railroad car while switching and removing cars from transfer boat resulted from employer's negligence held for jury.

2 RELEASE.

If employer's agent in reading release to injured employee fraudulently omitted therefrom material part, changing meaning, and thereby induced employee to sign, release was void.

3 RELEASE.

In action by employee against employer for injuries, whether release was obtained by fraud held for jury.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by B. L. Hackler against Natchez & Southern Railway Company and others. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Kennedy & Geisenberger, of Natchez, for appellant.

The question of whether or not the release was obtained by fraud should have been submitted to the jury.

All questions of fraud, collusion and misrepresentation in the obtaining of execution of a release are for the jury, as is also the question whether a release of plaintiff's claim was obtained by defendant in good faith with a full understanding on plaintiff's part of his legal right.

34 Cyc. 1105-1106; I. C. R. R. Co. v. Vaughn, 33 Ky. L. Rep. 906, 111 S.W. 707; Louisville Veneer Co. v. Clements, 33 Ky. L. Rep. 106, 109 S.W. 308; I. C. R. R. Co. v. Fairchilds, 48 Ind.App. 300, 91 N.E. 836; Bussiam v. Milwaukee, L. S. & W. R. R. Co., 56 Wis. 325, 14 N.W. 452; M. P. R. R. Co. v. Goodholm, 61 Kan. 758, 60 P. 1066.

Where one injured through the negligence of another is induced, by fraudulent representations, to release the other from liability, his delay, after discovering the fraud, does not estop him from rescinding the release and bringing action for the injury at any time within the period of litigation where the delay did not operate to the prejudice of the other.

Galveston, H. & S. A. R. R. Co. v. Cade, 93 S.W. 124; Coles v. Union Terminal Ry. Co., 124 Ia. 48, 99 N.W. 108; Omaha, Thompson-Houston Electric Co. v. Rombold, 93 N.W. 966, 68 Neb. 54.

The court should have submitted to the jury the question as to whether or not plaintiff assumed the risk of his injury.

Assumption of risk is ordinarily a question of fact for the jury, depending on whether or not plaintiff knew or ought to have known danger, and appreciated or ought to have appreciated it.

Note 13, sec. 54, Title 45, U.S.C. A. 495; Norton v. Maine Railroad Co., 100 S.W. 598, 116 Me. 147.

If the defendant violated the Safety Appliance regulation, the defense of assumption of risk is not available.

Seaboard Airline R. R. Co. v. Horton, 34 S.Ct. 635, 233 U.S. 492, 58 L.Ed. 1062; Note 5, Title 45, Railroads, U.S.C. A. 442.

E. H. Ratcliff, of Natchez, for appellees.

A release of the character here involved is contractual in its nature and cannot be varied by parol evidence.

English v. N. O. & N.E. Railroad Co., 100 Miss. 575, 56 So. 665.

This record discloses no intimation of fraud, as appellees read it, on the part of the appellees except the simple denial of the fact that the written contract does not contain the words "employment or re-employment" is a part of the consideration of this contract.

One injured by a Railroad Company, who on a compromise settlement releases his claim for damages, and afterwards in an action at law, seeks to avoid the release, must show by clear and convincing evidence that it was procured by fraud or misrepresentation such as would authorize its cancellation by a court of equity.

A. & V. R. Co. v. Turnbull, 71 Miss. 1029.

Argued orally by L. T. Kennedy, for appellant.

OPINION

Cook, J.

The appellant, B. L. Hackler, instituted this suit in the circuit court of Adams county against the Natchez & Southern Railway Company and the Natchez & Louisiana Transportation Company, seeking to recover damages alleged to have been sustained by reason of negligence of the defendant in failing to furnish him a safe place to work while he was employed by them in switching and removing cars from a transfer boat operated by the said Natchez & Louisiana Transportation. Company in interstate commerce, and by reason of the failure of the Natchez & Southern Railway Company to comply with the Federal Safety Appliance Act (Act Cong. March 2, 1893, sec. 4 [45 U.S.C. A., sec. 4]), by providing necessary grabirons or handholds on the sides of the car from which the appellee fell and was injured. The declaration also alleged that some months after he was injured the defendants offered to settle his claim for the damages sustained by him by paying his hospital and medical expenses, and his full salary for the six months' time that he had lost as a result of his injury; and that he was fraudulently induced to accept this offer of settlement, and to sign a release of all liability for the injury so sustained by him, and that consequently the release executed by him was fraudulent and void. The appellees filed a plea of general issue, and gave notice thereunder that they would offer evidence to prove that at the time of his injury he was engaged in interstate commerce, and had assumed the ordinary risks of his employment; that the defendants were guilty of no negligence which caused his injury; that the settlement with the appellant was fairly and openly made; and that the release signed by him was executed with full knowledge of all the facts, and of the contents thereof.

The essential facts, as shown by the testimony offered by the appellant, are as follows: At the time of his injury, and for many years prior thereto, the appellant was employed by the Natchez & Southern Railway Company as engine foreman, in charge of a crew engaged in switching in the railroad yards and in moving railroad cars to and from a transportation boat operated by the Natchez & Louisiana Transportation Company for the purpose of transporting such cars across the Mississippi river. This boat was equipped with two lines of railroad tracks, which were raised about two feet above the level of deck of the boat, these tracks being about seven or eight feet apart. Between these lines of tracks there was erected a plank walk way, which was level with the rails of the tracks. Between the outer edges of this walk...