St. Louis-San Francisco Railway Co. v. Hall
| Decision Date | 20 October 1930 |
| Docket Number | 184 |
| Citation | 32 S.W.2d 440,182 Ark. 476 |
| Parties | ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. HALL |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; W. W Bandy, Judge; reversed.
Judgment reversed, and case dismissed.
E. T Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.
Harrison Smith & Taylor and C. T. Carpenter, for appellee.
BUTLER, J. Mr. Justice HUMPHREYS concurs on the ground that appellee ratified the release.
The appellee, G. A. Hall, had for many years operated stations for pumping water for engines of the appellant company. For about a month preceding October 12, 1927, he was engaged in this business for the appellant at Monette, Arkansas. The engine which he operated at this place was a coal oil burner, and the fuel was delivered by the section crew at the pump house and by them carried within and placed in proper position. On the morning of the 12th of October, 1927, the section crew, composed of the foreman and four men, loaded a push cart at the depot with a case of cup grease, a thirty-gallon drum of gasoline and a one hundred and ten-gallon drum of coal oil, and pushed the car by means of the motor car used by the section crew to a point opposite the pump house, variously estimated at being from six to nine feet from the door of said pump house. It was the purpose of the section crew to there unload and place the grease, gasoline and coal oil in the pump house for the use of the operator Hall. In the course of unloading Hall's leg was broken by the drum of coal oil rolling against it, catching it between the drum and the door sill of the pump house. Hall was carried to a hospital in Jonesboro where he remained for about twelve days when he was transported to one of the company's hospitals at Springfield, Missouri, at which he remained until December 20, 1927. For some days before that date he had recovered sufficiently to go about the hospital on crutches, and he was informed by the physician in charge that he might go home for the Christmas holidays. He left the hospital on December 20, and reached his son's home near Leachville on the morning following.
On December 22, 1927, Mr. Allard, the claim agent of the appellant company, visited Hall for the purpose of effecting a settlement for the injury sustained by Hall. He found Hall in bed, complaining of being exhausted by the journey from the hospital at Springfield and feeling very unwell. Allard did not press the question of settlement, but left. Some three or four days afterward Hall visited his wife's brother-in-law, John Dunham, at Holcomb, Missouri, and remained there for three or four days. He left in company with his son-in-law, N. D. Oxley, for the latter's home at St. Francis, Arkansas, at which place he was on the 9th of January, 1928. On that date, the claim agent again visited Hall, and a settlement was agreed upon for the sum of $ 750, and Hall signed a written instrument which by its terms in consideration of the said $ 750 released the appellant company from all liability and from all claims for the injury which occurred in the preceding October, including those that then existed or which might thereafter develop. Upon the execution of the release Allard delivered to Hall the company's check for $ 750 which Hall retained until January 18, 1928, when he deposited the same to his credit in a bank at Blytheville, Arkansas, immediately drawing out $ 250 in cash. After leaving the bank it was Hall's purpose to consult with his physician regarding the condition of his leg, and, while going along the street, one of his crutches slipped causing him to fall breaking his leg again. He was given first aid and immediately taken to the company's hospital at St. Louis, Missouri, where his leg was reset and treated for a time until he could again go about the building on crutches. His leg did not heal properly and was then placed in a plaster cast, and in this condition he returned to his home with instructions to return to the hospital at the end of forty days. In about forty-six days he did return, and after further examination it was determined that it would be necessary to amputate his leg, which operation was performed on July 12, 1928.
In the month of August, 1928, he checked on the remainder of his deposit in the Bank of Blytheville for two small amounts. He drew two checks in September, four in October, one in December, four in January, 1929, and one in February, 1929, when there was left in the bank of the $ 750 received from the appellant company the sum of $ 120. On the 25th day of April, 1929, Hall filed suit against the appellant company for damages for the injury sustained on October 12, 1927, alleging that his injury was occasioned by reason of the negligence of the appellant's employees. The appellant company answered denying negligence, and pleading as a further defense the settlement entered into January 9, 1928. To the plea of settlement the appellee replied alleging that the settlement was induced by fraud and entered into by reason of a mutual mistake, and that the same was not valid and binding. The case was presented to the jury on these issues, and from a verdict and judgment adverse to the appellant is this appeal. Such further facts as are necessary for an understanding of the issues and conclusions reached will be hereinafter stated.
The three major propositions presented here, as in the court below, and urged as grounds for reversal are, first, that the evidence failed to show any negligence on the part of the appellant's employees; second, that the release signed was fairly entered into without misrepresentation or fraud or because of mutual mistake and is valid and binding; and third, that the appellee by his act accepted the benefits of the settlement and ratified the same.
1. The testimony regarding the happening of the injury to Hall is in hopeless conflict, but, for the purpose of testing its sufficiency, the testimony of the appellee must be accepted and viewed in its most favorable light and given its strongest probative value. All of the testimony for the appellee was given by himself alone, which was to the effect that, as the push cart with its load approached down the railroad track and stopped at a point opposite the front door of the pump house, he entered the pump house for the purpose of stopping the engine and removing the belt that it was necessary to do this in order that the coal oil drum might be rolled beyond the engine and placed upon a shelf elevated at some distance from the floor; that...
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