Smith v. The City of Kansas City

• Decision Date: 09 February 1918
• Docket Number: 21,514
• Citation: 102 Kan. 518,171 P. 9
• Parties: WILLIAM SMITH, Appellee, v. THE CITY OF KANSAS CITY, Appellant
• Court: Kansas Supreme Court

171 P. 9

102 Kan. 518

WILLIAM SMITH, Appellee, v. THE CITY OF KANSAS CITY, Appellant

No. 21,514

Supreme Court of Kansas

February 9, 1918

Decided January, 1918.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

COMPENSATION ACT--Personal Injuries--Written Release--Mutual Mistake. The paper relied on as a release appears to have been signed when the parties were mutually mistaken as to the extent of plaintiff's injuries. The sum therein named being manifestly inadequate, such instrument is not binding.

E. S. McAnany, M. L. Alden, Thomas M. Van Cleave, all of Kansas City, and Frank L. Barry, of Kansas City, Mo., for the appellant; Samuel Maher, of Kansas City, of counsel.

W. W. McCanles, Charles E. Thompson, and H. F. Gorsuch, all of Kansas City, for the appellee.

OPINION

WEST, J.:

The city appeals from a judgment recovered by the plaintiff for damages caused by being trampled while in the employ of the city caring for horses used in connection with its fire department. He alleged that he was 65 years old and was making $ 2 a day. The injury was on February 15, 1916, and on the 24th of March, thereafter, he drew $ 33.75 and signed a paper called a final receipt, for which he alleges there was no consideration, as the amount paid him was only a part of the compensation due. He also pleaded inadequacy, fraud, and mutual mistake. The jury were charged that the only ground upon which the release could be set aside was that of mutual mistake as to the extent of his injuries, and gross inadequacy. The verdict was for $ 590.25. The plaintiff is an unlettered man and spent 30 years of his life with Barnum's circus. He testified to receiving injuries on the legs, and a rupture, and also injury in the back; that he wore a bandage on one leg for three or four weeks; that he was in bed off and on for ten or twelve days, then got up on crutches and walked around; that he attempted to do work at other places and had been discharged for physical inability that the city doctor came to see him, did nothing for one leg, and bandaged the other "and put a little splinter on it," and said he would be up in two or three days. Eleven or twelve days thereafter he sent for another doctor, whom he saw several times. This doctor advised him not to do any work until he got better. He twice saw still another doctor who gave him some medicine and, like the one just mentioned, told him he was ruptured. He went to numerous other physicians, but appears, nevertheless, to have taken charge of his own case to quite an extent. He testified that he was told to go over and draw his wages, which he supposed he was doing when he signed the paper. At the time of trial he testified that he had not done anything for five or six months until the preceding week. He seems to have tried to work at numerous places, but failed on account of his inability to perform the required tasks. When he signed the paper he had not attempted to do any work, and did not know what effect his injury would have upon his ability to work. The superintendent of the waterworks testified that he went to see the plaintiff about ten days after the injury and later, when he came to the city hall, that he gave him the address of Mr. Barry, an attorney in Kansas City, Mo., who was representing the city; that the plaintiff thought he would be able to go back to work the following Monday morning. The paper recites the payment of $ 33.75--

"Said amount being such part of my weekly wages for the period of four and one-half weeks from the 23d day of February, 1916 to the 25th day of March, 1916 (both dates included) as I am entitled to, and making in all with the weekly payments already received by me, the total sum of Thirty-three and 75/100 Dollars ($ 33.75) such payment being the final payment of compensation under the ...