Wells v. Royer Wheel Co.

• Decision Date: 18 December 1908
• Citation: 114 S.W. 737
• Parties: WELLS v. ROYER WHEEL CO.
• Court: Kentucky Court of Appeals

114 S.W. 737

WELLS v. ROYER WHEEL CO.

Court of Appeals of Kentucky.

December 18, 1908

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Action by Henry Wells against the Royer Wheel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Jeff Henry and W. W. Spalding, for appellant.

McChord Hines & Norman and John McChord, for appellee.

LASSING J.

Appellee operates a manufacturing establishment in Lebanon, Ky. and is engaged primarily in the manufacture of spokes, hubs, and rims used in the building of wheels. Appellant, while in the service of said company, was, on the 4th of October, 1906 injured about his head and face by the "blowing up" of a machine which he was operating. On the 3d of October 1907, he filed suit in the Marion circuit court in which he sought to recover of appellee damages for his said injury.

He charges in his petition that the said company directed him to work at and about a machine in its said plant which was old, worn, unsafe, and in a defective condition; that plaintiff had no knowledge of the condition of said machine, and that he was not warned of its condition, or of the dangers attendant upon its use, though it was then well known to the said company that the machine was defective, worn, and unsafe for use, and had been in such condition for some time; that he was inexperienced in the work to which he was assigned, and that this fact was known to the said company; that without fault on his part, and while so engaged in operating the machine as directed by the company, he was injured by a part of said machine striking him in the face and head, and injuring his nose, cheek, and eyesight in one eye so that it was totally destroyed; that said injury was the result of the gross negligence of the said company in permitting said machine to remain in an unsafe and defective condition, and requiring him to work at it without warning him of its attendant dangers. He asked for damages in the sum of $1,995. The company answered in two paragraphs. The first traverses all of the material allegations of the petition. In the second it pleaded a settlement with the plaintiff, in which he accepted from it the sum of $446 in full compromise, settlement, satisfaction, and discharge of any claim, present or prospective, which he had against said company growing out of the said accident and injury, and it filed with its said answer a receipt, signed by the plaintiff, in which the full and complete settlement and adjustment of the whole matter was set out. Thereafter, by an amended petition filed, plaintiff admitted that he had received the sum of $300 from the defendant company, but he alleged that this said sum was in compromise and settlement of his claims growing out of the accident for time lost between the date of the injury and the date of the settlement, and for mental and physical suffering endured by him from the date of the injury to the date of settlement, and for all physical injuries sustained by him other than the injury to his eye and eyesight; that in the said settlement it was expressly agreed and understood that the injury to his eye and eyesight was not taken into consideration, but was reserved for further settlement and determination; that the remainder of the sum named in the receipt was not received by him, but was paid in settlement and discharge of his doctor bill and hospital fees; that, under the terms of the compromise, he had settled with the defendant company for all injury and lost time and suffering endured by him except the injury to his eye and eyesight, and that he sought to recover for this alone, but that, by mistake of his counsel in drafting the original petition, the other items of damage resulting from the accident were included, when the claim should have been made only for the injury to his eye and the loss of the sight thereof. He prayed as in his original petition. Thereafter plaintiff filed his reply, in which he traversed the material allegations of the second paragraph of the answer, and pleaded further that at the time the settlement, set out in defendant's answer, was made he had no counsel representing him, but was assured by counsel for defendant that the receipt was only a settlement for items of damage which they had discussed and agreed should be settled for the sum designated; that it was not read by him, and was not read to him; that he did not know that it purported to be a settlement in full of all claims for damages growing out of said accident and injury, and had he known this to be the fact, he would not have signed it; that at the time this paper was signed plaintiff was not in a condition, either mental or physical, to understand the purport or contents of the said receipt and the legal effect of his signature thereto, which fact was known to the defendant at the time the said signature and receipt were procured; that by reason of the representations made by defendant's counsel and the enfeebled condition, mental and physical, of plaintiff he was deceived and imposed upon, and a fraud was perpetrated upon him, and he prayed as in his petition and its amendment. Defendant answered the amended petition in three paragraphs. The first is a traverse. The second pleaded that the plaintiff was a skilled mechanic in the use of a spoke-turning machine, such as he was operating at the time of the accident and the injury complained of, and had full knowledge, not only of the condition, but of the use and operation of said machine; that his injuries were the result of his own negligence and carelessness in the handling of said machine, and were not due to any fault on the part of the defendant company. The third paragraph pleaded the one-year statute of limitation as a bar to the further prosecution of this action. A demurrer was sustained to the third paragraph. The affirmative matter in the second paragraph was traversed in the reply, and upon the issues, as thus joined, a trial was had before a jury, which resulted in a verdict in favor of the defendant company. A motion and grounds for a new trial was filed and, upon being heard, overruled. To test the validity of certain rulings of the trial court this appeal is prosecuted.

Appellant complains that the court erred in admitting and rejecting testimony, and especially in refusing to permit the testimony of one F. B. Cox, regarding certain declarations and admissions made to him by Joseph Coleman, the general manager for appellee, to go to the jury as substantive evidence, that the court erred in instructing the jury, and that the verdict is palpably and flagrantly against the evidence, and is unconscionable and unjust, and should not be upheld. The witness F. B. Cox was the father-in-law of appellant, and appellant offered to prove by him that, some days before the date upon which the settlement was made with the company for which the receipt was executed, Joseph Coleman, the general manager of appellee company, and one Wallace Russell, its foreman, came to appellant's house, and in the presence of said F. B. Cox undertook to make a settlement and adjustment with appellant on account of his said injuries, and appellant offered to prove by said witness Cox that during the progress of this conversation Joseph Coleman admitted that appellant was not in a condition, mental or physical, to transact business, and that he (Cox) advised Coleman not to make any contract with him while in this condition; that he (Coleman) thereupon said to him, "We will make it all right with him," and, further, that Coleman said, "We are not settling for his eye. His eye is not out. If it goes out, we will owe him more than $200 or $300." The court refused to permit this testimony to go to the jury as evidence against the company, and we think properly so, as it is a well-settled principle that, in order that the declarations, statements, or admissions of an agent may bind his principal, it is necessary that they should be made at the time of the making of the contract which is the subject-matter of such declarations, statements, or admissions. At this time no agreement had been reached by appellant and Coleman representing appellee company. In fact the witness Cox shows that at that time no proposition was even made to appellant. On the contrary, according to the statement of this witness, the advisability of a settlement and adjustment was simply being discussed, together with the amount that would be satisfactory to appellant should an agreement be reached.

It is argued that this testimony would have shown that appellant's condition, mentally and physically, was such that he was not in a condition to make a contract. This might have been true as to that date, but it would not show, or even tend to show, that at the date upon which the contract was made and the compromise effected appellant was not in a condition of mind and body to enable him to know and understand the nature and extent of the contract into which he was entering. In Story on Agency (page 152) the rule is thus stated: "A party dealing with an agent, who is acting within the scope of his authority and employment, is to be considered as dealing with the principal himself. If it is a case of contract, it is the contract of the principal. If the agent, at the time of the contract, makes any...