Slabon v. St. Louis Car Co.

• Decision Date: 02 April 1940
• Docket Number: No. 25430.,25430.
• Court: Missouri Court of Appeals
• Parties: SLABON v. ST. LOUIS CAR CO.

138 S.W.2d 673

SLABON v. ST. LOUIS CAR CO.

No. 25430.

St. Louis Court of Appeals. Missouri.

April 2, 1940.

Rehearing Denied April 16, 1940.

Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.

Action by Stephen Slabon against the St. Louis Car Company, a corporation, on an alleged contract for lifetime employment. From an adverse judgment, defendant appeals.

Affirmed.

Watts & Gentry and Lehmann & Lehmann, all of St. Louis, for appellant.

S. F. Pinter and Mason & Flynn, all of St. Louis, for respondent.

McCULLEN, Judge.

This case is before this court for the second time on appeal. The first judgment was reversed and the cause remanded because the trial court had excluded evidence offered by plaintiff. See Slabon v. St. Louis Car Co., Mo.App., 102 S.W.2d 939.

Thereafter, the cause was again tried before the court and a jury, resulting in a judgment for plaintiff in the sum of $2,100. From that judgment defendant took this appeal, filing its bill of exceptions on September 8, 1939.

Plaintiff's petition alleges that, on July 30, 1925, he sustained an injury in the course of his employment with defendant under circumstances which he claimed rendered his employer liable to him in damages; that on September 24, 1925, in consideration for the signing by plaintiff of a certain paper prepared by defendant and absolving defendant from liability to plaintiff for such injuries, defendant agreed to give plaintiff steady employment during the period of his natural life as long as defendant's plant should be in operation. Plaintiff further alleges that he signed the paper, performed his part of said agreement by refraining from holding defendant liable in damages, and that defendant performed its part of said agreement until February, 1930, when, in violation thereof, defendant refused plaintiff to continue his said employment, although said plant was then and has since been in operation, and plaintiff repeatedly offered his services to defendant in consonance with said agreement; that plaintiff has since the breach of said agreement by defendant sought employment similar to his employment with defendant but has been unable to find same; that his wages with defendant amounted to between $25 and $30 per week. Plaintiff prayed damages in the sum of $7,500. The answer of defendant was a general denial.

Plaintiff gave his testimony in the Hungarian language, it being translated into English by an interpreter. He testified that he was sixty-six years of age at the time of the trial out of which this appeal arises; that he started working for defendant in 1912 and worked there eighteen years; that in September, 1925, he was lifting an iron sheaf onto a machine when he slipped and fell with the iron in his hand and it fell with him; that he immediately felt a sharp pain in his lower right side and reported the accident to Mr. Coleman, who was the foreman; that the foreman told him to go to the doctor, which he did. The doctor referred to is Dr. Herman J. Rosenfeld, defendant's plant physician. Plaintiff further testified that the doctor examined him and told him he was ruptured, and told him to go home but to come back in about two or three days; that he went back and told the doctor, "I got some demands"; that the doctor told him he was hurt, and that the doctor said he would speak to the head boss, Mr. Meissner, who was the manager of the whole place and president; that in about three or four days he went back to the doctor and the doctor told him he would get compensation provided he signed a paper; that the doctor told him he had to sign the paper and he would get a lifetime job; that the doctor said before he could go back to work he would have to get a truss and would have to sign the paper in order to get a lifetime job; that he signed the paper; that the company thereafter furnished him with a truss; that he wore it about three and a half years when it broke and he went back and defendant furnished him with another truss or rupture belt; that on the last-mentioned occasion, Mr. Schuchard, an employee of defendant, went with him to get the truss.

Plaintiff further testified that the doctor said to him, "Slabon, it's best for you to be operated on"; that before he was operated on, plaintiff talked with the president of defendant company, who told plaintiff he should permit himself to be operated on "and I would get relief for my wife, $15.00 a week, and that I would have a lifetime job; that I would always get that"; that he was operated on at the City Hospital, having been taken there by Mr. Schuchard. Plaintiff testified further that at that time he was off from work over two months, but that Mr. Meissner did not give plaintiff's wife "that $15.00 a week"; that $50 was all he got for those two months; that afterwards he went back to work and worked about eight months in 1929 and 1930, and defendant laid him off in April, 1930; that, before he brought this suit, he demanded his job; that he spoke to Dr. Rosenfeld and asked him for any kind of a job as he had been promised, as Dr. Rosenfeld knew, a lifetime job; that the doctor chased him out of the office; that he has not worked for defendant since 1930; that he was able to return to work but couldn't get work; that defendant's plant has been in operation; that in 1925 and 1930, when he was working for defendant, he earned at least $50 for two weeks' pay.

On cross-examination plaintiff testified in detail as to the circumstances under which he was injured. During the cross-examination defendant's Exhibit A was shown to plaintiff and he testified that he signed it but that he could not read; that he never asked anybody to read what was above his name thereon; that the paper was handed to him in the main office of defendant; that Dr. Rosenfeld was there when he signed his name; that Dr. Rosenfeld told him to sign the paper, and that Dr. Rosenfeld said in English, "You get a lifetime job"; that he had a conversation with Mr. Meissner at the doctor's office just before he went to the hospital to be operated on; that the doctor told Mr. Meissner at that time that plaintiff had to go to the hospital to be operated on; that plaintiff told Mr. Meissner that he could not afford to quit working long enough to go to the hospital because his wife and family wouldn't have anything to live on; that he would have to have assistance; that Mr. Meissner then told him that, if he would send his wife to the cashier's window while he was in the hospital, the company would give her money, but his wife did not go to the office to get any money; that after he got out of the hospital he went to the office and got $25 on two occasions while he was not working; that each time he got $25 he signed a paper (defendant's Exhibits B and C, each being a receipt for said amount— one dated February 16th and the other March 1, both in the year 1929); that the Exhibits A, B and C were the only papers he ever signed after he was hurt; that on the occasion when Mr. Meissner came into the anteroom of the doctor's office when plaintiff was getting ready to go to the hospital to be operated on, Mr. Meissner promised to give plaintiff's wife $15 during the time he was in the hospital.

During his cross-examination plaintiff repeated his description of his visits to the doctor after he sustained his injury. In this connection plaintiff testified that the doctor told him that he had a hernia; that he asked the doctor what "they" were going to do for him regarding his accident and his injuries, and what he would get; that the third time he went to the doctor's office, the doctor said, "This is going to be a rupture. It's very bad", and, "You will have to have a belt. Go right away and get a belt"; that the doctor said to him, "You go right away to the drug store and buy a rupture belt, and first you go into the office and you must write up the paper"; and that the doctor told him what kind of a paper and said to him, "You get a paper for a lifetime job." Plaintiff was asked, during cross-examination, to tell in English exactly what he said to the doctor and what the doctor said to him, but he stated he could not remember the words because he was unable to speak enough English to remember the words the doctor used.

Lee Kaldron testified, as a witness for plaintiff, that he had been doing handy work around the witness' house, and yard work for about six years; that plaintiff had good health and was exceptionally strong for his age and was receiving board and lodging in consideration for his work.

Dr. Herman J. Rosenfeld testified, as a witness for defendant, that in 1925 he was employed by defendant as its plant physician; that between September 20th and 22nd, 1925, plaintiff came into the plant hospital for examination and told the witness that he had a rupture and had been wearing a truss for it; that he examined plaintiff and found an inguinal hernia on the right side, and adjusted the truss or rupture belt; that he entered on his report on September 23, 1925, plaintiff's check number, his name, the time he entered the plant hospital, and the time he was released, the nature and extent of his hernia, and a statement, which he said was made by plaintiff, that the rupture was not caused by factory work. The doctor's report was produced at the trial.

The doctor further testified that he called the attention of Mr. Schuchard, the employment manager, to the fact that the plaintiff had an old hernia; that in December of that year plaintiff again came to the plant hospital, having been sent there from the blacksmith shop because of his hernia, but no treatment was given plaintiff at...