Mentzer v. Armour

• Decision Date: 01 October 1883
• Citation: 18 F. 373
• Parties: MENTZER v. ARMOUR and others.
• Court: U.S. District Court — Western District of Missouri

18 F. 373

MENTZER v. ARMOUR and others.

United States Circuit Court, W.D. Missouri.

October, 1883

Scott &amp Taylor, for complainant.

Pratt Krumbock & Ferry, for defendants.

KREKEL J., (charging jury.)

This suit is brought by Mentzer, plaintiff, to recover damages from Armour and others, defendants, for personal injury sustained while in their employ as a carpenter upon a building which defendants were erecting in Kansas City. In the statement of his cause of action Mentzer alleges generally that his injury resulted from defendants failing to furnish proper material for the construction of the building failing to furnish a safe and proper structure for him to stand and walk on; failing to furnish efficient and sufficient superintendents; charging that the defendants wholly disregarded their duty in these respects, carelessly and negligently furnishing unsound and defective lumber for joists; that defendants' agents carelessly and negligently nailed and fastened the joists; that they carelessly and negligently furnished unskilled and incompetent superintendents,-- all of which the defendants knew, or might have known by the exercise of ordinary care that this carelessness and neglect caused dangers of which they failed to advise him; that defendants' overseer ordered him to go upon said joists to brace them, which he did, and was thereby permanently injured and disabled, to his damages in the sum of $1,500. The defendants in their answer generally deny all carelessness and neglect; deny that the material used in the building was unsound or otherwise defective; and say that the injury plaintiff received was the result of his own carelessness and neglect, and that they are therefore not liable to him. They further set up a release, whereby any claim for damages which plaintiff might have had was discharged.

You observe that the complaint of the plaintiff proceeds upon the ground that defendants were bound to furnish suitable material for building purposes, and place the same in proper position for his work; that the defendants did not furnish efficient superintendents, in consequence of which neglect by the defendants the plaintiff was injured. In the consideration of the case you will bear in mind that the allegations of carelessness and neglect made by the plaintiff he is bound to prove by a preponderance of evidence. The law does not presume or impute carelessness or negligence, but requires it to be shown by him who alleges it, and unless he does show it he cannot recover.

And, first, as to the defense set up that defendants have been released from any damages to which the plaintiff may have been entitled. The execution of the release in evidence is not denied. Regarding this release it may be said that the law favors settlements of the kind. A defendant may buy his peace. The plaintiff says he ought not to be bound by it, because the release was obtained from him by fraudulent misrepresentations made by defendants' agents, and that he was not in his right mind when he executed it; that when it was obtained he was suffering from pain, and was under the influence of drugs, and did not know what he was doing. The allegations as to the fraudulent obtaining of the release, and the state of his mind at the time of executing it, made by the plaintiff, must be proven by him. If you are satisfied from the evidence that the release in question was obtained by fraudulent representations, or that from any cause plaintiff was not in his right mind when he executed the same, he ought not to be bound by it, and it should be treated by you as a nullity. The release is valid as it stands, and unless successfully attacked as stated, ends the case, and your verdict should be for the defendants.

As I cannot and have no right to anticipate the result of this branch of the case, I proceed to instruct you upon the remaining issue-- that of carelessness and negligence on the part of the defendants. And here, first, of the suitableness of the timber. The modern tendency is to grade all property entering into commerce as far as possible, so that the knowledge of the grade of an article enables any one to fix for the time being, its market value. Lumber, it seems, has measurably been brought within this tendency. Thus, according to the evidence, we have a first, second, and third grade in clear; and first, second, and culls in lumber not clear. In 1879, the time the defendant built the structure in which the plaintiff was injured, there were only two grades in lumber not clear, namely, first grade and culls....