Loveless v. Cunard Mining Co.

• Decision Date: 06 February 1918
• Docket Number: No. 2107.,2107.
• Citation: 201 S.W. 375
• Parties: LOVELESS v. CUNARD MINING CO.
• Court: Missouri Court of Appeals

201 S.W. 375

LOVELESS v. CUNARD MINING CO.

No. 2107.

Springfield Court of Appeals. Missouri.

February 6, 1918.

Rehearing Denied March 14, 1918.

Error to Circuit Court, Jasper County; It. A. Pearson, Judge.

Action by Oscar Loveless against the Cunard Mining Company. Judgment for plaintiff, and defendant brings error. Affirmed.

R. M. Sheppard, of Joplin, and J. P. McCammon, of St. Louis, for plaintiff in error. C. V. Buckley, Norman A. Cox, and Hugh Dabbs, all of Joplin, for defendant in error.

BRADLEY, J.

On January 31, 1916, plaintiff below, an employé of defendant below, was working in a lead and zinc mine for defendant in Jasper county, and engaged at the time as helper in the operation of a drill driven by compressed air pressure. He bottomed his petition upon negligence as follows: That at the time of his injury he had set up his drill machine, having turned off the air at the valve on the main air line, and stepped over and picked up the end of his branch air line for the purpose of attaching it to his machine; that in the meantime, another servant of defendant operating another drill machine in said mine had negligently and carelessly turned on the air at the valve on the main line and left the same on without warning plaintiff thereof, and had, when disconnecting his machine negligently and carelessly turned the air at the valve on his branch line so that the pressure remained on plaintiff's line and was held only by gravel and small particles of rock and dirt in the end thereof; that when plaintiff picked up his said line for the purpose of attaching it to his machine as aforesaid, the heavy air pressure thereon blew said particles of rock and gravel from the end of said line into plaintiff's face, destroying the sight of plaintiff's eye, and injuring the other eye and inflicting upon his face bruises, scars, and various hurts and injuries. Plaintiff further states that his said injuries were and are a direct result of the negligent and careless failure on the part of defendant to furnish him with a valve with which to shut the air off of said branch line at said machine as aforesaid, and of the negligent and careless direction of plaintiff by defendant through its foreman in charge of said work to use said line without said valve, and of the negligent and careless act of defendant's fellow servant aforesaid in turning and leaving on the air at the main line without warning plaintiff thereof and turning off the air on his branch line.

The answer was a general denial, a plea of assumption of risk, act of a fellow servant, and release and satisfaction. The reply was a general denial, and a plea to the effect that the release did not express the contract agreed upon, and that a fraud had been perpetrated upon plaintiff in the execution of the release. The cause was tried before the court without a jury on June 1, 1917, resulting in a finding for plaintiff in the sum of $6,000, but from this the court deducted $84 mentioned in the release, and $69 which defendant had paid on a doctor bill incurred by plaintiff. After unsuccessful motions for a new trial and in arrest, defendant brings the cause to this court by writ of error.

Plaintiff was working underground as helper in the operation of a drill. These drills were operated by means of compressed air forced from the surface down into the mine through a pipe called a main. Near the terminus of the main was a large valve, and just beyond this large valve the main line terminated in what is called a "horn," which is an assembly of connections so that branch air lines or pipes could be attached thereto. A branch line attached to this horn extended to each separate drill machine. The two branch lines material to this cause received their power from the same lead from the horn or main. Between the horn and the drill machine on the branch lines involved here was a valve so that if one machine was not ready to run and the other was, the air could be turned on at the large valve in the main line, and off at the valve on the branch line leading to the machine not ready to run, and on at the valve on the branch line leading to the machine ready to run. The record does not disclose how many branch lines might be attached at the horn, but all that concerns this controversy are the two that were attached. These two lines diverged from the horn in the form of an acute angle, one side of which extended to the right and one to the left. At the terminus of the branch line was a nipple to which a hose was attached or detached as became necessary. This hose could be connected with the drill at the terminus of the line. The drills were moved when necessary, and the branch line and hose adjusted accordingly.

Plaintiff was working under one Haney who had charge of the drill, and it was his duty to obey Haney's orders. The drill at the terminus of the other branch line was about 40 feet from plaintiff's drill. One Webb was the, helper to the operator of this second machine. There was a night shift which operated these same machines, and on Saturday night before plaintiff was injured on Monday morning the small valve on the branch line on which plaintiff was working had been practically destroyed by shooting charges of dynamite breaking up the material to be mined. This valve, however, had been out of repair for some two or three days. The fact that this valve was out of repair had been called to the attention of the ground boss, but as they had no other one and nothing with which to repair that one, the operator of the machine was directed to get along if he could until a new valve could be had. When a shot was fired, earth, gravel, and other debris usually wedged into the end of the branch air line pipe which is open when the shot is fired, because before the shot the hose is disconnected and the drill machine moved. Before beginning to operate a machine after a shot, the branch line is "blown out" in this manner: The valve between the terminus and the large valve on the main is opened, and the main then is opened, and this permits the air to extend into the branch line, thus blowing out whatever obstruction there might be in it. On the morning of the injury plaintiff was engaged in helping to set the drill at which he worked. The helper at the other drill undertook to blow out these two branch lines, and had opened the valve between the terminus on his line and the large valve on the main, and then turned on the main and blew out his line. He then closed the valve on his branch line, but did not close the valve on the main, and in this condition the entire pressure from the main which went to these two branch lines was thrown into the branch line where plaintiff was working. Although the valve on this line was broken the line did not blow out because the debris was so tightly wedged therein. Plaintiff did not know that the branch line on which he was working was not blown out, and did not know that the pressure had been left on at the main. In order for the other machine to operate it was necessary to close the air line on which plaintiff was working and, with the valve above mentioned out of repair, this could only be done by attaching the hose, which could be closed, to the nipple. The drill machine where Webb was helper was set and ready, and Webb announced that they were ready, and thereupon Haney directed plaintiff to attach the hose. When he picked up the terminus of the branch line pipe to attach the hose, the debris wedged therein was with great force suddenly blown out into plaintiff's face, resulting in the loss of his right eye.

On February 5, 1916, the plaintiff signed the following release:

"Know all men by these presents, that I, Oscar Loveless, for the sole consideration of eighty-four and no/100 dollars to me in hand paid by Cunard Mining Company have released and discharged, and by these presents do for myself, my heirs, executors, administrators and assigns release and forever discharge the said Cunard Milling Company of and from all claims, demands, actions, or causes of actions, on account of injuries resulting, or to result, from an accident to myself, which occurred on or about the 31st day of January, 1916, by reason of loss of right eye and of and from all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof."

At the same time plaintiff received and cashed a draft for $84. Defendant also paid a doctor's bill amounting to $69. This suit was brought without a tender being made except the $84. Other facts relating to the release and necessary to a full understanding of the issues will be mentioned in the course of the opinion.

Defendant makes several assignments of error, but all of consequence are covered by the one that the court erred in refusing to sustain a demurrer except the alleged error in refusing certain declarations of law. Learned counsel for defendant contend that the release in the circumstances obtaining here is fatal to recovery. The facts concerning the release are about as follows: On February 4, 1916, Clarence Craig an attorney, with office in Joplin, and who was the representative of the surety company upon whom the draft for $84 was drawn, informed plaintiff's physician (at that time Dr. Chenoweth) that he (Craig) would like to see plaintiff. The doctor so advised plaintiff, and he next day called at Craig's office, and the two went immediately to the office of Dr. Sloan, an eye specialist, whom Craig recommended very highly. The specialist examined the injured eye, and Craig examined it, using instruments. Plaintiff testified that Dr. Sloan informed him that he would fix him up all right, and that his eye would be as good as ever in two or three weeks. Dr. Sloan and Craig were not positive just what was said. After leaving Dr. Sloan's office, plaintiff and Craig...