Vasquez v. Pettit

• Citation: 74 Or. 496,145 P. 1066
• Parties: VASQUEZ v. PETTIT.
• Decision Date: 02 February 1915
• Court: Supreme Court of Oregon

145 P. 1066

74 Or. 496

VASQUEZ v. PETTIT.

Supreme Court of Oregon

February 2, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by L. Vasquez against J. Pettit, doing business under the firm name and style of Pettit Feather & Bedding Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action by L. Vasquez against J. Pettit, doing business as the Pettit Feather & Bedding Company, to recover damages for a personal injury. The complaint charges in effect that on May 1, 1911, the plaintiff was engaged in operating for the defendant a carding machine, used in picking hair with which to fill mattresses, and while thus employed his right hand was caught between cylinders of the machinery and so injured as to necessitate amputation. The negligence alleged is a failure properly to guard the machine, or to provide it with a belt shifter, or to inspect the instrumentality, or to instruct the plaintiff, or to have prompt communication between the operator of the machine and the engineer in charge of the motive power. The answer denied the negligence alleged, and for further defenses averred: (1) That the plaintiff know the danger incident to operating the machine and assumed the risk; (2) that aside from his carelessness the injury resulted from the negligence of fellow servants (3) that the hurt was caused by the plaintiff's carelessness whereby the accident was unavoidable; and (4) that the defendant on July 22, 1911, settled and compromised with the plaintiff, giving him the sum of $535 and also assuming the payment of the surgeon's charges and the hospital expenses incurred in caring for the plaintiff, who upon the receipt of the money executed to the defendant a release discharging him from all liability by reason of the accident and injury. The averments of new matter in the answer were put in issue by the reply, which further alleged in substance, that at the time stated the plaintiff received $400 from the defendant, who then informed him that an insurance company would pay such charges of the doctor and bills at the hospital; that the defendant thereupon requested the plaintiff to sign an instrument in order to show the receipt of the money, so as to prove that the sum paid had been disbursed, saying that the amount was intended to cover wages for the past, and for a reasonable future time; that the defendant then promised and agreed with the plaintiff that he could work for the company as long as it continued in business; that if such writing is a release the plaintiff was induced to sign it by the defendant's fraudulent representations to him that it was only a receipt; that such statements were false, and so known by the defendant when he uttered them, and they were made for the purpose of inducing the plaintiff to sign the writing; that he is a Spaniard and unable, to any extent, to speak, read, or write the English in which language the instrument was written, and no copy thereof was delivered to him; that desiring to continue in the work in which he was engaged when hurt, and realizing the difficulty which he would encounter in securing other employment by reason of the loss of his hand, and relying upon the defendant's representations and agreement, he signed the writing, supposing it was a receipt; that he did not intend to sign a release and did not believe he had done so; that he never received any money in compensation for his injuries and suffering; and that since he was hurt he has endeavored to render valuable services for the defendant who, disregarding his promise and agreement, discharged the plaintiff and refused longer to employ him. Based upon these issues, a trial was had resulting in a judgment for the plaintiff in the sum of $4,000, and the defendant appeals.

F. S. Senn, of Portland (Senn, Ekwall & Recken and Moser & McCue, all of Portland, on the brief), for appellant. W. E. Farrell, of Portland (Davis & Farrell and Wilber Henderson, all of Portland, on the brief), for respondent.

MOORE C.J. (after stating the facts as above).

No motion...