Malkmus v. St. Louis Portland Cement Co.
| Decision Date | 01 October 1910 |
| Parties | AUGUST MALKMUS, Respondent, v. ST. LOUIS PORTLAND CEMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court.--Hon. Geo. C. Hitchcock, Judge.
AFFIRMED.
Judgment affirmed.
Watts Williams & Dines and William R. Gentry, for appellant.
(1) Where a release has been executed and the consideration therefore received, an action cannot be maintained on the cause of action released, without returning, or offering to return, the consideration received. The law of Missouri is settled that the consideration must be returned, or an offer of return made within a reasonable time after discovery of fraud by plaintiff and before institution of a suit. Althoff v. Transit Company, 204 Mo. 166. (2) The case was tried on the theory that defendant was negligent in failing to sufficiently light the room, or in permitting a metal hook or clasp on the belt to so project or extend as to be dangerous. There was no evidence as to when the metal clasp or hook first extended or protruded; no evidence that the defendant had any knowledge that it so protruded or extended, or that the defendant had any opportunity to repair it. Failure to prove notice of this defect and opportunity to remedy it was fatal to plaintiff's case. Wojtylak v Coal Co., 188 Mo. 281; Kelly v. Railroad, 105 Mo.App. 365; Krampe v. Brewing Assn., 59 Mo.App 277; Pavey v. Railroad, 85 Mo.App. 218; Herbert v. Shoe Co., 90 Mo.App. 305; Mfg. Co. v. Woodson, 94 Ala. 147; Wilson v. Railroad, 85 Ala. 273; Railroad v. Holborn, 84 Ala. 133; Railroad v. Flannigan, 77 Ill. 365; Rolling Stock Co. v. Wier, 96 Ala. 396; Burke v. Rubber Co., 21 R. I. 466. (3) The court erred in giving instruction No. 1 asked by plaintiff. The first sentence of this instruction made defendant an insurer of the safety of the place to work furnished plaintiff. This is reversible error. Ordinary care in this regard is all that is required. Hach v. Railroad, 117 Mo.App. 11; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Wojtylak v. Coal Co., 188 Mo. 260; Mertens v. Transit Co., 122 Mo.App. 304; Schmidt v. Railroad, 149 Mo. 269; Campbell v. Transit Co., 121 Mo.App. 406; Phelan v. Paving Co., 115 Mo.App. 423; Woods v. Railroad, 188 Mo. 229.
J. M. Lashly and Thomas G. Rutledge for respondent.
(1) (a) A master is chargeable with knowledge of conditions he creates himself. Railroad v. James, 56 F. 1001; Shearman & Redfield on Neg., sec. 194; 26 Cyc., p. 1114; Crown Coal Co. v. Hiles, 43 Ill.App. 310; Broderick v. Railroad, 56 Mich. 261; Merton v. Railroad, 81 Mich. 423. (b) The master is liable if the dangerous condition could have been discovered by the exercise of ordinary care on his part. Herdler v. Buck Stove, etc., Co., 136 Mo. 3; Moriarity v. Schwartzschild, 132 Mo.App. 650; Herbert v. Mound City B. & S. Co., 90 Mo.App. 305; Bullmaster v. St. Joseph, 70 Mo.App. 69. (c) A legal inference of negligence on the part of the master is authorized where the servant is put to work in a dangerous place. The master cannot furnish a place necessarily dangerous and escape liability because he says he did not know. Reichla v. Greensfelder, 52 Mo.App. 43; Musick v. Dodd Packing Co., 58 Mo.App. 322; Irmer v. Brewing Co., 69 Mo.App. 17; Plank v. Railroad, 60 N.Y. 607; Zellars v. Water & L. Co., 92 Mo.App. 107; Nash v. Brick Co., 109 Mo.App. 600. (3) Fraud in the execution of a release makes the instrument absolutely void. In such a case no rescission is required, there being nothing to rescind. Where there is no rescission there is no necessity for return or tender. Sec. 654, R. S. 1899; Girard v. Car Wheel Co., 123 Mo. 358; Berry v. Railroad, 122 S.W. 1043; Dwyer v. Railroad, 66 Mo.App. 335; Och v. Railroad, 130 Mo. 27; Vautrain v. Railroad, 28 Mo.App. 538; Jones v. Higgins, 73 Mo.App. 331; Courtney v. Blackwell, 150 Mo. 245; Hayden v. Railroad, 117 Mo.App. 76; Winter v. Railroad, 160 Mo. 159; Alexander v. Railroad, 54 Mo.App. 66; 34 Cyc., pp. 1067-1073; Shaw v. Webber, 79 Hun (N.Y.) 307; Railroad v. Hambright, 87 Ark. 614; Simoli v. Rubber Co., 81 Conn. 423; Butler v. Railroad, 88 Ga. 594; Railroad v. Edmonds, 33 Ky. L. Rep. 933; Bjorland v. Seattle El. Co., 35 Wash. 439; O'Brien v. Railroad, 89 Iowa 644; Bliss v. Railroad, 160 Mass. 447; Kirchner v. Howe Mach. Co., 135 N.Y. 182.
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 seventy feet wide and one hundred and twenty feet long in which large belts, drums and fly wheels are constantly operating. 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 seventy-five 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 sixty-five dollars, 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 sixty-five dollars 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 sixty-five dollars 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, Revised Statutes 1899, section 654, An. St. 1906, to the effect that he had not released his cause of action, and asserted that though defendant gave him sixty-five dollars 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 sixty-five dollars, 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 sixty-five dollars, 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 that, 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 sixty-five dollars 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 sixty-five dollars 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...
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