Malkmus v. St. Louis Portland Cement Co.

• Decision Date: 01 October 1910
• Citation: 150 Mo. App. 446,131 S.W. 148
• Parties: MALKMUS v. ST. LOUIS PORTLAND CEMENT CO.
• Court: Missouri Court of Appeals

131 S.W. 148

150 Mo. App. 446

MALKMUS v. ST. LOUIS PORTLAND CEMENT CO.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

Rehearing Denied October 24, 1910.

1. RELEASE (§ 24)—CANCELLATION — CONDITIONS PRECEDENT.

Where one who concedes that he has executed a release of a claim induced by fraudulent representations antecedent to the execution seeks its cancellation because of the fraud,

he must pay, or offer to pay, the amount received under the release.

2. RELEASE (§ 24)—CANCELLATION — CONDITIONS PRECEDENT.

Where the fraud inheres in the execution of a release of a cause of action, and is of a character preventing a contract in the first instance, a plaintiff thus imposed on need not pay or tender the consideration received as a prerequisite to his right to sue on the cause of action released, since he neither affirms a release nor seeks its cancellation, but proceeds on his cause of action as though no contract had ever been entered into.

3. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Whether an employé in a cement factory injured by being struck by a protruding iron on a belt running 75 miles an hour was guilty of contributory negligence in failing to observe the protruding iron held, under the evidence, for the jury.

4. MASTER AND SERVANT (§§ 101, 102)—OBLIGATION OF MASTER—SAFE PLACE TO WORK —SAFE APPLIANCES.

A master must exercise ordinary care to furnish a servant a reasonably safe place to work and to supply him with reasonably safe appliances, and, where defects in the construction of the appliances exist which are discoverable by ordinary care, he is liable for injuries to a servant thereby.

5. MASTER AND SERVANT (§ 286)—INJURY TO SERVANT — NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to a servant in a cement factory struck by a protruding iron on a belt running at a high speed, evidence held to require submission to the jury of the issue of the master's negligence in providing such a belt.

6. TRIAL (§ 296)—INSTRUCTIONS.

Where, in an action for injuries to a servant, the evidence clearly showed that the master failed to exercise ordinary care to furnish the servant a reasonably safe place to work, and the court charged that the jury, to find for plaintiff, must find that he exercised ordinary care and was injured as a result of the master's negligence, error in a charge that it was the duty of the master to furnish the servant with a safe place to work and to warn him of dangers not known and obvious was not ground for reversal.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by August Malkmus against the St. Louis Portland Cement Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Williams & Dines and William R. Gentry, for appellant. J. M. Lashly and Thomas G. Rutledge, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries suffered by him through defendant's negligence. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant owns and operates a mill engaged in the manufacture of cement, and plaintiff was a laborer in its employ at the time of receiving his injuries. As parcel of the cement plant defendant maintains one large room about 70 feet wide and 120 feet long, in which are constantly operating numerous large belts, drums, and flywheels. As a result of the process of manufacturing cement, a fine dust constantly filled the atmosphere and settled in this large room, and it seems plaintiff was engaged in sweeping out this dust. Though he had been in defendant's service for two years, plaintiff had never worked in this room until four or five days before his injury, and was unfamiliar with the conditions. Among other things, it was plaintiff's duty to sweep under the belts operating the machinery, and while thus engaged a protruding iron at the splice of one of the belts struck him on the head as the belt was moving at about 75 miles per hour, and crushed his skull. Plaintiff was discovered soon after his injury lying beneath the belt in an unconscious condition, and was removed to a hospital, where he remained for about five weeks.

The first question for decision pertains to a release pleaded by defendant in its answer and alleged to have been executed by plaintiff as an acquittance of his cause of action for the negligent injury. Plaintiff denies that he executed a release, and asserts defendant made him a present of $65, which was equivalent to the amount of wages he would have earned if at work during the time he was confined in the hospital. The precise question for decision in connection with this matter is as to whether or not plaintiff may maintain this suit without first having tendered to defendant the amount of $65 which it paid him at the time of the execution of the instrument, which plaintiff says was to be an ordinary receipt, but turns out to be a release and acquittance. It is conceded that defendant paid plaintiff $65 two or three weeks after he came out of the hospital, and that he executed to it the instrument of writing, which appears to be both a receipt for the amount and a release of the cause of action now sued upon. But plaintiff says he did not intend to release his cause of action, and that he was imposed upon by defendant's agents who read the paper to him as a receipt. Defendant having pleaded the release as a bar to the right of recovery, plaintiff replied under the provisions of section 654, Rev. St. 1899 (Ann. St. 1906, p. 670), to the effect that he had not released his cause of action, and asserted that, though defendant gave him $65 on the date in question, it was a gift only for which he executed an ordinary receipt. The reply avers, too, that, if the instrument pleaded by defendant purports to be a release of the cause of action, then it was obtained without his knowledge or consent through the fraud, deceit, and imposition of defendant practiced on him because of his then impaired mental condition. After plaintiff had made a prima facie case by showing his injury and how it was occasioned, defendant introduced the release and other evidence tending to show that plaintiff released his cause of action for the sum of $65, which was duly paid him by it. In rebuttal plaintiff gave testimony to the effect that, immediately after coming out of the hospital, he called upon defendant's agent and requested some financial assistance, for the reason he was unable to work and provide for his family. After some consideration, defendant's agent figured that his wages, if employed during the time he was confined in the hospital, would amount to about $65, which amount it gave him as a present; that he thereupon signed and executed the instrument in writing as a receipt for such amount, not knowing it to contain any words of release or other contractual terms. Plaintiff says on account of his then condition he was unable to read the paper, and did not know its contents, and that, though it was read to him by defendant's agents both in English and in German, it was read as if it were a receipt only, and the words of release were concealed. Several witnesses for plaintiff testified that his mental condition was so impaired at that time as to render him incompetent to transact ordinary business affairs. There is testimony, too, to the effect that his injury, besides impairing his mental condition, occasioned a paralysis of one side of his body, and that he was threatened with paresis.

The jury found the issue for plaintiff in accordance with his theory to the effect that defendant made him a present of $65 and merely took a receipt therefor, or, in other words, as though the minds of the parties never met upon the contractual stipulation to the end of releasing the cause of action sued upon. Plaintiff not having tendered or offered to return the $65 to defendant, it is argued that no recovery may be awarded him; for it is said that the law requires as a condition precedent in every instance where one seeks to avoid the consequences of a release that he should first place the other party in statu quo by either paying or offering to pay the amount received thereunder. There can be no doubt of the general proposition of law asserted. The authorities are numerous which support and affirm it. It is sufficient to cite two only which are relied upon. Jarrett v. Morton, 44 Mo. 275; Althoff v. St. Louis Transit Co., 204 Mo. 166, 102 S. W. 642. But the doctrine referred to is without influence here, for, according to the case made by plaintiff, no release of the cause of action was ever executed. By reference to the authorities cited, which are relied upon by defendant, it will appear that in each instance there involved plaintiff conceded a release of the cause of action had been executed and sought a recovery notwithstanding the fact for the reason there had been fraud in the inducement or matters collateral to its execution. The matter in judgment here is to be distinguished from that involved in those cases, in that, instead of its consisting of fraud which induced the party to execute a release knowing it to be such, here the case presented is one where a fraudulent practice inhered in the execution of the instrument, and plaintiff was deceived through defendant's wrong in executing an instrument which he did not know to be a release and without an intention to do so. In other words, in the instance now in judgment, according to plaintiff's theory of the case, which is affirmed by the jury, there was never a contract of release executed between these parties, for through fraud of defendant plaintiff was induced to sign what he understood was a receipt, when, in fact, the instrument contained a contract of release of which he had no knowledge, and to which, of course, in the circumstances stated he could not have given his assent. When one concedes the fact that he has executed a...