McMillan v. Isreal, 16792.

• Citation: 30 S.W.2d 626
• Decision Date: 27 January 1930
• Docket Number: No. 16792.,16792.
• Parties: McMILLAN v. ISREAL.
• Court: Court of Appeal of Missouri (US)

30 S.W.2d 626

McMILLAN v. ISREAL.

No. 16792.

Kansas City Court of Appeals. Missouri.

January 27, 1930.

Certiorari Denied by Supreme Court April 8, 1930.

Rehearing Denied March 3, 1930.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Lycurgus C. McMillan against Charles Isreal. Judgment for plaintiff, and defendant appeals.

Affirmed.

Ryland, Boys, Stinson, Mag & Thomson, of Kansas City, for appellant.

Atwood, Wickersham, Hill & Chilcott, of Kansas City, for respondent.

BARNETT, C.

This is a suit for personal injuries. The jury returned a verdict for plaintiff in the sum of $5,000. Judgment was rendered thereon, motions for new trial and in arrest of judgment were filed and overruled, and defendant appealed. The evidence most favorable to the plaintiff is to the effect: That defendant is in the transfer business. That he maintains a place of business in Kansas City, Mo., which is used as his office, as a place for storage, and as a place for repair of the trucks which he uses in his business. On the 8th day of November, 1926, the plaintiff was employed by the defendant. He usually acted as an assistant to the truck drivers, but he performed other services from time to time around defendant's place of business. The defendant ordered the plaintiff to move an engine or motor which was on the floor in his place of business near the wall. At that time another employee of the defendant was sitting in a motortruck and had the engine running indicating that he intended to move the truck. Pursuant to the defendant's orders, the plaintiff procured a hand truck from another part of the building, put the engine or motor upon this hand truck, tried to brake the truck back, and at the same time stepped back. While he was engaged in this work, his back was turned to the motortruck, and he was engrossed in his work. Pool, the other employee of the defendant, started the motortruck, ran it upon and against the plaintiff, and thereby injured him. Plaintiff's testimony is to the effect that at the time he was engaged in his work the defendant was present, personally directing the work, standing a few feet from the plaintiff and facing the motortruck. Defendant admitted that in a deposition taken before the trial he had stated that he witnessed the accident, but he explained that, when he so testified, he meant that he was right there on the floor; that the truck had not passed over the plaintiff's foot when he got there, and the plaintiff had not gotten up; that the first warning that he had was when the plaintiff cried out. However, on cross-examination, the defendant testified that the plaintiff "kinda leaned over and got his foot under the wheel." The evidence clearly shows that plaintiff was not warned of the approach of the truck, either by the driver or by the defendant.

The testimony shows that the plaintiff, on or about the 22d day of October, 1926, signed an instrument which reads as follows:

"Release — Personal Injuries.

"Received of Charles Isreal and Isreal Motor Transfer Company the sum of One Hundred Fifty & no/100 and Twenty-Two Dollar Hospital Bill and One Hundred Dollars and Two Medical bill ($274.00) which I (being of lawful age) acknowledge to be in full accord and satisfaction of a disputed claim growing out of bodily injuries sustained by me on or about the 13th day of October, 1926, at or near 1912-14 Grand Avenue for which bodily injuries I have claimed the said Charles Isreal and Isreal Motor Transfer Co. to be legally liable, which liability is expressly denied; and in consideration of said sum paid, I hereby remise, release and forever discharge the said Charles Isreal and Isreal Motor Transfer Co. heirs, successors, administrators and assigns, from any and all actions, claims and demands for, upon or by reason of any damage, loss, injury or suffering which heretofore has been or which hereafter may be, sustained by me in consequence of such accident and injury."

The plaintiff cannot read and cannot write except to sign his own name. He had gone to a hospital after he was injured, and he signed the release on the day that he was discharged from the hospital. Plaintiff testified that the doctor who had attended him took him to the office of the adjuster for the insurance company that carried defendant's risk, and the adjuster told him he was giving him some money "to hold me up until I recovered," at which time he would negotiate for a settlement with him; that the adjuster stated that the payer was merely a release from the hospital and from the doctor; and that the release was not read to him. Plaintiff testified that, on receiving a check for $150, he showed it to a friend, who told him that a release was indorsed thereon. He then consulted his attorney and offered to return the check uncashed. The testimony indicates that the insurance company, acting on behalf of defendant, had assumed the payment of the hospital bill and the doctor's bill in the sum of $274. The plaintiff did not offer to pay this $274. However, he had never contracted to pay the same. At the close of all of the evidence, the court, at the plaintiff's request, gave plaintiff's instructions No. 1 and No. 3. They are as follows:

"1. The court instructs the jury that if plaintiff was in the employ of defendant Charles Isreal, then under the laws of the State of Missouri defendant was bound to exercise ordinary care to provide plaintiff a reasonably safe place in, at and about which plaintiff was required to work and be in the performance of his duties to defendant and to exercise ordinary care to keep said working place reasonably safe; and it was the further duty of defendant to exercise ordinary care to ascertain any perils arising from the fact that plaintiff's working place would become dangerous by reason of any independent act about to be performed in his business and to warn plaintiff of such peril. If, therefore, you find and believe from the evidence that at the time and place referred to in evidence plaintiff Lycurgus C. McMillan was employed in the service of defendant Charles Isreal and that plaintiff was engaged in loading and removing the motor referred to in evidence and that defendant Charles Isreal was present and in charge of and directing said work and that plaintiff was engrossed in his work and that while plaintiff was so engrossed in his work, if so, the automobile truck referred to in evidence approached and struck plaintiff and plaintiff was injured thereby, if you so find, and that the approach and movement of said automobile truck made plaintiff's said working place dangerous and not reasonably safe to him, if so, and that plaintiff was unaware of the approach and movement of said automobile truck, if you so find, and in ignorance of said danger and peril arising by reason thereof, if so, and that defendant Charles Isreal was present at plaintiff's said working place and knew, or by the exercise of ordinary care could have known, of the approach and movement of said automobile truck and the making of plaintiff's said working place dangerous and not reasonably safe thereby, if so, and permitted the approach and movement of said truck toward plaintiff and his said working place and thereby made his said working place dangerous and not reasonably...