Hornstein v. Alpha Portland Cement Co.

• Citation: 18 S.W.2d 121
• Decision Date: 21 June 1929
• Docket Number: No. 20767.,20767.
• Parties: HORNSTEIN v. ALPHA PORTLAND CEMENT CO.
• Court: Court of Appeal of Missouri (US)

18 S.W.2d 121

HORNSTEIN v. ALPHA PORTLAND CEMENT CO.

No. 20767.

St. Louis Court of Appeals. Missouri.

June 21, 1929.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Suit by Otto Hornstein against the Alpha Portland Cement Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant.

Raymond S. Davis, of St. Louis, for respondent.

SUTTON, C.

This is an action in equity to set aside a release executed by plaintiff to defendant on May 21, 1925, for personal injuries received by him on April 16, 1925, while in the employ of defendant at its rock quarry at Continental, Mo. Plaintiff was injured while attempting to cover, with mud or wet clay, sticks of dynamite placed upon large rocks preparatory to shooting such rocks. While so engaged, rocks fell down into the pit where he was working, and struck him on the head. He was rendered unconscious by the blow, and was caused to bleed profusely through his ears for several days. He was removed by defendant to a hospital, where he was treated by Dr. Carroll Smith and Dr. William C. Weinberg, physicians and surgeons, under employment by the defendant. He remained at the hospital for four weeks, and then returned to the boarding camp at defendant's plant, and a few days later resumed his employment with defendant.

On May 21, 1925, the release in suit was presented to him, together with a check for $106, by Albert Sauter, who was conducting the boarding camp. Plaintiff is a German, and came to this country from Germany only two or three months prior to his injury. Sauter was his friend and relative. He knew him in Germany, and was instrumental in bringing him from Germany to this country, having advanced him the money to pay the expenses of his trip from Germany, and secured his employment by defendant.

Plaintiff testified that Sauter presented the release to him, together with a check for $106, at the boarding camp, and stated that it was a receipt for his wages covering the time he was in the hospital, and requested him to sign it; that he figured $106 was the correct amount of wages covering that time, and signed it; that he did not know what it was, except that Sauter told him it was only a receipt for his wages; that it was not read to him; that there was nothing said about it being a release or any settlement of his claim; that he indorsed the check for $106, and that the check was retained by Sauter to apply upon the balance of $120 then due Sauter for money advanced to pay plaintiff's expenses from Germany; that he believed the statement made by Sauter and relied upon it; that Sauter was the only man in America that he knew, and the only person upon whom he could rely, and that Sauter said nothing about representing the defendant in securing this release; that, prior to the signing of the release, there had been no talk with any one at any time of a settlement or release of his claim; that he had not discussed with Sauter the matter as to what the company would pay; that immediately after the accident he was taken to Alexian Brothers Hospital, where he was confined to bed for four weeks, and was treated by Dr. Carroll Smith and Dr. William C. Weinberg; that, while in the hospital, he asked Dr. Smith about his injuries, and that Dr. Smith replied that he had a bump on his head; that this was said through one of the brothers acting as interpreter; that Dr. Weinberg also told him that he had sustained only a bump on the head, and that he would be all right in about fourteen days; that this was after he had been in the hospital about three weeks; that he also talked to Dr. Weinberg about five days after he left the hospital and before he signed the release, at which time Dr. Weinberg told him that, if he should have a little headache, it would not amount to much, and to come there and he would give him some medicine, and it would be all right; that the doctors never told him that he had suffered a fracture of the skull; that he signed the release several days after he left the hospital; that at that time he did not know he had sustained a fracture of the skull, but that he felt all right, and thought that he was all right; that Dr. Smith and Dr. Weinberg told him when he left the hospital that he was all right; that he believed those statements of the doctors, and relied upon them; that he was hit on the left side of the head; that he felt all right the day he signed the release; that he then considered himself fully recovered; that a few days later he had trouble with his head and became dizzy, and had to be held up and taken home to bed; that he has had these spells from once to twice a week ever since; that he never had any such trouble before he was injured; that sometimes he bleeds out of his ears; that he cannot see with his left eye; that, when the weather changes, he becomes dizzy, and has to stay in bed; that his head pains him on the left side from the forehead back down to the neck, and that he cannot hold his head up; that these pains are shooting pains, which last from a half hour to a whole day; that this interferes with his sleep and with his work; that he has been able to work two, three, or four days a week, at light work, but that he has never worked a full week since the accident; that he has spells of dizziness and unconsciousness causing him to fall to the floor; that such spells have occurred four or five time since the accident, the last time about five or six months...