Russ v. Union Oil Co

• Court: Louisiana Supreme Court
• Writing for the Court: MONROE, J.
• Citation: Russ v. Union Oil Co, 36 So. 937, 113 La. 196 (La. 1904)
• Decision Date: 22 June 1904
• Docket Number: 15,194
• Parties: RUSS v. UNION OIL CO

36 So. 937

113 La. 196

RUSS v. UNION OIL CO

No. 15,194

Supreme Court of Louisiana

June 22, 1904

Rehearing denied June 30, 1904.

Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.

Action by Napoleon Russ against the Union Oil Company. Judgment for plaintiff, and defendant appeals. Reversed.

Sutherlin & Barret, for appellant.

Thigpen & Foster, Charles Latham Gaines, and Frank J. Looney, for appellee.

MONROE J. LAND, J., recused.

OPINION

MONROE J.

Statement.

Plaintiff demands $ 5,000 as damages for personal injuries, sustained as he alleges, by reason of defective apparatus used in the mill in which he was employed by defendant. Defendant, by way of exception, sets up a compromise, and, the exception having been overruled, answers that the plaintiff assumed the danger incident to his employment, and that he was guilty of contributory negligence. There was a verdict and judgment for plaintiff in the sum of $ 425, the defendant has appealed, and the plaintiff has answered the appeal praying for an increase in the amount of the award.

The facts necessary to be considered in determining the validity and effect of the compromise, as we find them from the testimony in the record, are as follows:

The plaintiff had his arm broken whilst working in defendant's mill between 2 and 3 o'clock on the morning of Thursday, January 15, 1903, and was immediately sent to the Charity Hospital in Shreveport. He was there asked whether he desired to consult a lawyer, and, upon his answering in the affirmative, Mr. Foster, of the law firm of Thigpen & Foster, was summoned by telephone, called on him between 9 and 10 o'clock, and entered into a contract, which was thereafter to be reduced to writing, to bring suit against the defendant for damages. Between 10 and 12 o'clock on the same day, Mr. West, defendant's manager, had plaintiff removed to a private sanitarium, and gave instructions that no lawyers were to be permitted to see him. The next day Mr. Foster sent to the sanitarium, for plaintiff's signature, a written instrument embodying the verbal contract between him and plaintiff of the day before, but his messenger was at first refused admittance to plaintiff's room. After some telephoning, however, between Foster and the surgeon in charge of the sanitarium, and between the latter and West, the messenger was admitted, and the contract was signed, and a copy of it served on West.

On the Sunday following (January 18th), Calvin Bradford called upon plaintiff in a friendly way, and after a short visit, in which nothing was said about the latter's claim against the defendant for damages, was in the act of leaving, when plaintiff requested him to ask Mr. West to come and see him, Bradford says, "about having the case withdrawn"; and Dr. Schumpe surgeon in charge of the sanitarium, testifies that at a different time the plaintiff made a similar request of him. Bradford delivered the message the next morning (Monday, January 19th), and West, accompanied by Russell, one of defendant's employes, went at once to the sanitarium and effected the compromise here in question, which was reduced to writing and signed by plaintiff in the presence of two witnesses at a later hour on the same day; and plaintiff also signed a letter, which West had caused to be prepared, and which was duly delivered, informing plaintiff's attorneys of the compromise, and instructing them not to bring suit, as also a letter to defendant stating that he had no claim against it. West, testifying in regard to the matter, says that plaintiff "stated that he had done wrong in bringing the suit, and that he wanted to have it withdrawn; that he saw where he had made a mistake, and that if he [West] would take care of him and give him his place back he would like very much to have the thing compromised and settled"; and he further testifies that the instrument evidencing the compromise and the letters mentioned were fully explained to plaintiff, were delivered to and read by him, and were signed by him without hesitation, intimidation, misrepresentation, or inducement; and this testimony is corroborated in different terms and degrees by Russell, Schumpert, and Kingsmore. The instrument in question reads, in part, as follows:

"Know all men by these presents: That in consideration of the sum of $ 20 to me in hand paid by the Union Oil Co. of Shreveport, Louisiana, the receipt whereof is hereby acknowledged, and the assumption of all medical and surgical bills at the Sanitarium, and the further agreement to pay me running time (meaning work days) for six weeks, with a view of effecting a settlement and compromise I have released, acquitted and discharged, and do, by these presents release, acquit and forever discharge the said Union Oil Co. * * * of, and from, any and all costs, charges, claims, or demands, of whatsoever name or nature in any manner arising, or to grow out of, the accident by which I had my right arm broken on Thursday, January 15, 1903, on the third floor of the said mill," etc.

The $ 20 referred to were paid upon the signing of the instrument, and the "running time" was paid, week by week, for three weeks thereafter, at the expiration of which period the plaintiff, through his counsel, repudiated the compromise, tendered back the money which had been received, and offered to pay his bill at the sanitarium, and the defendant tendered the balance of the running time called for by the compromise, and offered to give plaintiff light employment at its mill.

From the testimony of plaintiff we make the following excerpts: After stating that West and Murphy (the latter being another of defendant's employes) had called on him on the day after the accident, and before he had signed the contract with his attorneys, he proceeds:

"They said they came to bring me some money and they were going to give me $ 10, and I told them that I didn't want that, and they asked me would $ 20 do, and I told them that I didn't want that, that that wasn't enough for my arm, and he said that he wasn't giving me anything for my arm, that they were just giving me that to help me out. Q. Did you, at any time, tell them to see your attorneys? Did you tell them to see me, at any time? A. I did. Q. Did you tell them to see anybody else? A. That was after they carried me in another ward. Q. What happened then? A. Mr. West came out there to see me that evening. Q. What did he say then? A. He said, 'You entered suit against me' and I told him, 'Yes, sir,' and he said I played hell. Q. Then what? A. He said I wasn't going to get anything; said, if I got it, you all would get all the money, and I wouldn't get any. Q. Who -- your lawyers? A. Yes, sir. Q. Did anybody else come to see you besides Mr. West? A. Mr. Russel was out there. Q. What did Mr. Russell tell you? A. He said he carried his son up, and Mr. Currie hired him, and he didn't know anything about machinery, and they put him to working machinery, and he got his fingers cut off, and he said he told them that he was going to sue them, and they said for him to go ahead and sue, and he sued, and he said he had to pay for that suit and pay for the sanitarium bill, too. Q. Who else came to see you? A. Calvin Bradford. Q. What did he say? A. He didn't say anything. He asked me how I was getting on, and I told him to ask Mr. West to come out there, and I asked Mr. West had he seen you all, and he said, 'No.' He said, 'Let it alone.' I told him I thought he was going to compromise."

* * * * * * * *

"Q. Well, what passed between you and Mr. West in regard to a compromise? A. He came out that evening, and said he was going to see Mr. Foster. Q. Mr. West said he was going to see Mr. Foster? A. Yes, sir; and the next time he came back, that was when I sent for him, and asked him if he had seen Mr Foster, and he said that he had not seen him; that he was just going to let it alone; and I told him that was all right then. * * * Q. When that [referring to the written instrument evidencing the compromise] was brought to you, what was said to get you to sign that document? A. That evening when he was out there, and I asked him what about the case, and he said that he was going to let it alone, and I said it was all right, and he said it was best for me to compromise now, and I told him what Mr. Russell said about getting his little boy's fingers cut off. Q. Well, we had that. A. Well, I told him twice; I told him when my wife was there, and told him that evening when he came up there to see me. Q. Did they say anything else to you? A. The first time they came and brought money they said they was going to give me that to take care of my family; that they didn't have anybody to take care of them. By the Court: Q. Did you get that $ 20? A. Yes, sir; I got that. He said he was going to give me that to take care of my family. He asked how many I had in my family. * * * Q. Calvin Bradford came to see you Sunday, didn't he? A. Yes, sir; came down to the sanitarium. Q. He just called to see you because he knew you at the mill? A. Yes, sir. Q. He was a colored man? A. Yes, sir. * * * Q. When Calvin left, that Sunday evening, you told him to tell Mr. West to come up there, and next Monday morning Mr. West came up there? A. He didn't come up until late in the evening. Q. Now, then, what did you and Mr. West agree on when he came? A. I asked him what about the case, and he said he was going to let it alone, and I told him that was all right then. They told me it was best to compromise, and Mr. Russell told me about the boy getting his fingers cut off. Q. You thought it was best, too, didn't you? A. After they told me that, I did. Q. When Mr. West came back again, he came back with the...