Owens v. Norwood White Coal Co.

• Decision Date: 19 November 1912
• Citation: 157 Iowa 389,138 N.W. 483
• Parties: OWENS v. NORWOOD WHITE COAL CO.
• Court: Iowa Supreme Court

157 Iowa 389

138 N.W. 483

OWENS

v.NORWOOD WHITE COAL CO.

Supreme Court of Iowa.

Nov. 19, 1912.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action at law to recover damages for personal injury. There was a verdict and judgment for plaintiff, and defendant appeals. Reversed.

For former opinion, see 133 N. W. 716.Guernsey, Parker & Miller, of Des Moines, for appellant.

J. L. Gillespie and Bannister & Cox, all of Des Moines, for appellee.

DEEMER, J.

On August 5, 1908, the defendant was, and for some time had been, operating a coal mine in Polk county, and plaintiff was engaged in its service. He was a miner of experience, and at the time in question was principally engaged in attending the pumps of the mine, but at intervals, when his attention was not thus required, he assisted in other work when called upon so to do, and at the time of the injury of which he complains he had gone to the assistance of one Grange, who was the timberman in charge of a mine entry spoken of by the witness as “17.” Plaintiff had some experience as a timberman, and was acquainted with the manner in which mine entries in that neighborhood were constructed and maintained. It was the duty of Grange to inspect this entry every day, and especially those parts of the roof and walls not protected by timbers placed for that purpose. As the entry was driven further into the mine, the timbering, so far as any was thought to be necessary, was advanced accordingly for the purpose of maintaining a passage or roadway between the hoisting shaft and the places where coal was being excavated. As the excavation of the entry was pushed forward into the mine, the track on which coal cars were operated was also extended, keeping the end of the track a short distance behind the face of the coal. Between the end of the track and the face of the coal the roof and walls of the entry were left to the inspection and care of the miner or miners working at that point; but, so far as the entry was completed and track laid, it was the duty of the timberman in charge to look after the safety of the passage. Wherever the condition or character of the roof of the entry appeared to demand it, protection against danger from falling rock and slate was usually provided by setting up posts on which cross-timbers and logs were placed. The existence of a defective roof from which a fall is liable to occur may sometimes be discovered upon visual inspection, and, when more obscure, may ordinarily be detected by tapping or sounding with a hammer or pick. This entry was being extended to the east, and from its side at intervals were turned or opened rooms from which miners dug coal which was loaded upon the cars and hauled through the entry to the shaft. Nearest the east or working end of the entry was room known as “No. 7,” which was worked by one Murray, and about 30 feet farther westward was room No. 6, worked by one Owens, not the plaintiff. Prior to August 4, 1908, the work of timbering the entry had been carried forward to a point about halfway between the openings into rooms 6 and 7. From this place the roof was left unsupported to a point 30 or 40 feet east of No. 7, from which point Grange, the timberman, having called plaintiff to his assistance, began to set another series of supports. For this purpose they brought in timbers on a coal car, and under the direction of Grange they had begun to unload them immediately east of the switch at the turn of No. 7, when a large mass of slate fell from the junction of the roof with the rib or wall of the entry, and plaintiff was caught in the fall and severely injured. He charges that his injury was occasioned by the negligence of the defendant in failing to provide him a reasonably safe place to work, and in failing to properly timber the entry, and that defendant, though having knowledge of the dangerous condition of the entry at that place, failed to warn the plaintiff thereof. The defendant denies the alleged negligence on its part, alleges that plaintiff himself was guilty of negligence contributing to his own injury, and that he assumed the risk of the conditions of the mine at the place in question, and is therefore not entitled to recover damages. Defendant further pleaded that, after plaintiff's injury and before this action was begun, the parties had an accounting and settlement, the result of which was that defendant undertook to pay, and did pay to, the plaintiff or for his use the sum of $136, and that he agreed to accept, and did, in fact, accept and receive, the same in full payment, settlement, satisfaction, and discharge of all his demands and rights of action on account of defendant's alleged negligence, and did then and there, in writing release the defendant from all further liability on account thereof. Replying to said plea of settlement, plaintiff admits the execution and delivery of the written acknowledgment of satisfaction set up by the defendant, but says the same was procured from him by fraud and misrepresentation, and he is therefore not precluded or estopped thereby.

[1][2] 1. In view of our final conclusion in the matter, we need only say, with reference to the merits of the case, that there are grave doubts about there being any showing of actionable negligence. The majority of the court are inclined to think there was no such showing of negligence on the part of the defendant as to take the case to the jury, and are also inclined to the opinion that the plaintiff assumed the risks and hazards of which he complains. Part of the work which he was employed to do was to assist in timbering the mine, and this he was engaged in when injured. A minority of the court think that these were jury questions and should have been submitted as such. We refer to the matter now for the purpose of showing that in any event there has always been doubt of defendant's liability and of plaintiff's right to a verdict on the testimony, aside from the question upon which the case turns. This much in preparation for the controlling proposition in the case which we shall now consider.

[3][4] 2. On the 28th day of August, 1908, something more than four weeks after the accident, plaintiff made a settlement with the defendant and executed to it the following receipt and release:

“Form 373, 2 M, 607.

I, J. R. Owens, hereby admit and acknowledge that there has been paid to me in hand this day by Norwood White Coal Company the sum of one hundred thirty six and 60/100 dollars in full settlement, accord and satisfaction of any and all claims or demands of every description which I now have or may hereafter have against the said Norwood White Coal Co. on account of an accident causing injury to me on or about August 5th, 1908.

In testimony whereof, I hereunto set my hand and seal this 28th day of August, 1908. J. R. Owens [Seal.]

Witness: C. Woodbridge. Mrs. J. R. Owens.”

Prima facie, at least, this is a bar to his recovery. He pleaded in his reply, however, that defendant's agent and attorney falsely represented to him that he had no cause of action, and by his professed friendship and false pretenses of sympathy he won his (plaintiff's) confidence and induced him to sign the paper and accept the money, and that said attorney and agent falsely and fraudulently represented and stated to plaintiff that his (plaintiff's) doctor had stated to him (the said agent) that he (plaintiff) would be up and around within six weeks. He further alleged that he had no opportunity to consult counsel with reference to his case, and believing each and all of said statements to be true, and relying thereon, he entered into the contract of settlement which he would not have done had he known the truth. He also pleaded a mutual mistake of the parties as to plaintiff's legal rights, and asked that the settlement be disregarded, and that the amount paid him be credited on whatever allowance the jury should make on his behalf. The testimony introduced on this issue tended to show that defendant's agent and attorney stated to plaintiff that he had no case, and that he would be a lucky man to take the money offered; that this agent, one Woodbridge, visited plaintiff about August 10, 1908, and had him make a statement of his case, and at the time “he asked Mr. Owens if he knew him, and Mr. Owens said, ‘I suppose you are sent here by the company,’ and he said, ‘That is who I am.’ He said, ‘My name is Woodbridge,’ and he said, ‘Mr. Owens, I am going to do all I can for you,’ and he says, ‘I have gone where they will cuss and swear at me,’ and he says, ‘You have acted the perfect gentleman, and I am going to do all in my power, and I am going to try and get half of your wages while you lay here.’ That was after he had talked with Mr. Owens. Mr. Woodbridge said where he goes they cuss and swear at him some places, and he said the company would rather give it to the lawyers than to give it to the man that cussed him.”

The witness who gave this testimony (plaintiff's wife) further testified: “On his second visit Mr. Woodbridge came with Dr. Cokenower who had been taking care of my husband. The two drove up together in a buggy. When Dr. Cokenower came in, he brought Mr. Woodbridge to the bed and said, ‘Come here, and see that I am not holding this man here any longer than I can possibly help,’ and he took care of his back, and put a new drainage in his back, and when Dr. Cokenower said that, Mr. Woodbridge came up and looked at my husband. After the doctor got through dressing the wounds, he picked up his satchel and walked out and sat in his buggy. Mr. Woodbridge then sat on a chair alongside of my husband and told him he had heard from the company that the company had allowed him $75 all told, but he said, ‘Mr. Owens, your hurt is deeper than I thought it was; I will do better than that on my own responsibility. I will give your hospital bill and doctor bill, and give you $50.’ He said, ‘Wait a minute and I will go and...