Higgins v. American Car Co.

• Decision Date: 11 December 1929
• Docket Number: 28039
• Citation: 22 S.W.2d 1043,324 Mo. 189
• Parties: Edward W. Higgins, Appellant, v. American Car Company
• Court: Missouri Supreme Court

22 S.W.2d 1043

324 Mo. 189

Edward W. Higgins, Appellant, v. American Car Company

No. 28039

Supreme Court of Missouri

December 11, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Geo O. Durham and Lowell Sparling for appellant.

(1) Plaintiff was entitled to all reasonable inferences to be drawn from the testimony. Contrary inferences should have been disregarded. Fritz v. Railroad, 243 Mo. 62; Williams v. Railroad, 257 Mo. 87. (2) Plaintiff made a case of primary liability when proof was offered that defendant furnished a hard brittle key, under circumstances where a soft key was ordinarily used, and adopted a plan of driving it up with a hard hammer, and failed to warn plaintiff the key was hard. Crader v. Ry. Co., 164 S.W. 678; Timmerman v. Frankel, 172 Mo.App. 174; Spencer v. Bruner, 126 Mo.App. 94. And failed to inspect the key. Cody v. Lusk, 171 S.W. 624; Ogan v. Railroad Co., 142 Mo. 248; Gutridge v Ry. Co., 105 Mo. 520. (3) The court erred in permitting defendant to interrupt plaintiff's case and offer the releases in evidence. There was no evidence of the authenticity of the releases. (4) The draft, was outside the issues raised by the pleadings and was not proved. (5) The authenticity, delivery and contractual character of the releases, were not admitted nor established by the evidence and they were improperly admitted in evidence. 22 C. J. 970; McElvain v. Railroad, 151 Mo.App. 126; Deierling v. Ry. Co., 163 Mo.App. 291. (6) The releases and their validity and effectiveness were for the jury, and the court erred in ruling they were a bar to plaintiff's action as a matter of law. Rau v. Robertson, 260 S.W. 751; Austin v. St. L. Transit Co., 115 Mo.App. 146; Robertson v. Fuller Const. Co., 115 Mo.App. 456; Dyrssen v. Union Elect. Co., 295 S.W. 116; McElvain v. Ry. Co., 151 Mo.App. 126; Deierling v. Ry. Co., 163 Mo.App. 291; Tait v. Locke, 130 Mo.App. 273.

Jourdan & English and Harry E. Wiehe for respondent.

Where the plaintiff servant sued the defendant master for personal injuries and admitted that he signed a complete release and that he received, carried about for several days and cashed a check reciting on its face that it was in full settlement and release of his claims for injuries, he was not entitled to recover against the defendant, because he could not have the release set aside without showing actual fraud in the procurement of the release, accompanied by ordinary care and prudence on his own part in determining what he was signing. Hall v. Railway Co., 209 S.W. 582; Dyrssen v. Electric L. & P. Co., 295 S.W. 116; Woosley v. Wells, 281 S.W. 695; Allgood v. Electric & Water Co., 6 S.W.2d 51; Hannah v. Butts, 14 S.W.2d 37; Rau v. Robertson, 260 S.W. 751 (distinguished); 22 C. J. 970.

White, J. Blair, P. J., concurs; Walker, J., absent.

OPINION

WHITE

The plaintiff brought suit in the Circuit Court of the City of St. Louis for damages on account of personal injuries. On a trial of the case, February 26, 1926, at the close of the evidence the court directed a nonsuit with leave. After the overruling of the plaintiff's motion to set aside the nonsuit, he, in due course, appealed.

The plaintiff was employed by the defendant as a blacksmith. He worked in connection with some machinery, including a heavy hammer, used in removing and placing certain dies. The exact nature of the work which plaintiff was doing is not described, but the allegations of the petition and the evidence sufficiently show that slots or channels were cut in certain appliances to correspond with slots in the dies, and in such a slot a piece of steel, called a wedge or key, fitted so as to retain the die in place. On September 20, 1923, it is alleged, the plaintiff with an assistant removed a die and another proper die was placed in position. The plaintiff and his assistant then, for the purpose of securing the die, proceeded to drive in the key with a sledge hammer. The key was of hard, brittle, tempered steel, and in striking it with the hammer, a chip was broken off and it struck the plaintiff in the arm, causing injuries for which he sued. It is alleged that the defendant was negligent in furnishing a key of brittle, tempered metal, and in failing to warn him that the head of the key was brittle and dangerous, and that the defendant negligently failed to inspect the key prior to the injury.

In answer, the defendant denied every allegation of the petition, and further alleged that on October 15, 1923, plaintiff, for a consideration of $ 140 paid to him, released and discharged the defendant from all claims arising on account of the injury he claimed to have sustained. The reply of plaintiff denied the allegations of the answer, denied execution of the release set out in the answer, and alleged that, if the plaintiff did sign such a release, it was procured through fraud on the plaintiff, who thought he was signing a receipt for his wages.

It is unnecessary to consider whether the defendant originally was liable on account of any negligence claimed. The evidence sufficiently shows a release of liability for an adequate consideration. The defendant introduced Exhibit 2, which declares that the plaintiff, in consideration of $ 140 paid, does release and discharge the defendant from any and all claims and demands by reason of any damage, loss or injury which plaintiff had sustained in consequence of the accident occurring on or about September 20, 1923. Also a check dated October 15, 1923, signed by H. O. Carriere, adjuster for the claim division of the Maryland Casualty Company, directing the Maryland Casualty Company to pay to E. W. Higgins $ 140 "in full settlement of and satisfaction of my claim for personal injuries sustained by me in an accident occurring on or about September 20, 1923, while in the employ of the American Car Company." The check concludes with this: "The endorsement hereof by the payee shall be a full release and acquittance for the item or claim described." On the reverse side appears the endorsement as follows: "The endorsement hereof by the payee constitutes a receipt and release for the items mentioned in this draft. (Signed) E. W. Higgins. Signature Martin Van Raalte." We infer that Van Raalte signed as a witness. It is peculiar that the body of the check acknowledges satisfaction of "my claim" in the first person, when it is signed by the maker while the payee is the one that has the claim. However, no point is made on that irregularity.

The plaintiff testified that about the fifteenth of October, he went to Van Raalte's office. He was told by Van Raalte to go down to the insurance office and "they will settle your wages with you." He said he went there to settle his wages. He took his wife with him. The wife testified that her husband told her he wanted her to go down town with him that he had some trading to do. She could read without glasses. The plaintiff testified that he could not see to read or sign his name without glasses, but he did sign the receipt and endorse the check. He said that Mr. Weihe was in the Maryland Casualty office when he went there, for the purpose of getting his wages; that Weihe asked him how long he had been laid off, and he figured it would come to about $ 130, and finally told him he would make it $ 140, which was about what his wages would amount to by the following Monday. Weihe said, "Here is my check for signing this paper," and plaintiff asked him what it was and he replied, "It ain't nothing; only just a receipt; merely a receipt to show I paid...