Wingfield v. Wabash R. Co.

• Decision Date: 02 April 1914
• Citation: 257 Mo. 347,166 S.W. 1037
• Parties: WINGFIELD v. WABASH R. CO.
• Court: Missouri Supreme Court

166 S.W. 1037

257 Mo. 347

WINGFIELD v.WABASH R. CO.

Supreme Court of Missouri.

April 2, 1914.

1. TRIAL (§ 255) — REQUESTS TO CHARGE — NECESSITY.

Parties at trial are not bound to ask for instructions; nor, in the absence of requests, is the court bound to charge on the theory of the respective parties.

2. RELEASE (§ 59) — VACATION — GROUNDS — INJUNCTION.

Where, in an action for injuries, plaintiff sought to set aside a release on the ground that he had been induced by defendant's physician to execute the release on the latter's false statement that plaintiff's arm, the bones of which had been broken, had united at the time of the physician's examination, an instruction that, if the jury found that the physician falsely assured plaintiff, without qualification, that his arm would be as good and strong as ever within six months, then the release did not bar plaintiff's right to recover was erroneous.

Woodson and Walker, JJ., dissenting in part.

In Banc.Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by Robert Wingfield, revived after his death in the name of Annie Wingfield, his administratrix, against the Wabash Railroad Company.Judgment for plaintiff, and defendant appeals.Reversed.

J. L. Minnis, of St. Louis, and Sebree, Conrad & Wendorff, of Kansas City, for appellant.Guthrie, Gamble & Street, of Kansas City, for respondent.

GRAVES, J.

The facts of this case were well stated by BOND, J., then commissioner, when this case was pending in Division No. 1.To that statement we shall add but one thing (i. e., the full text of plaintiff's reply), which we think important in the discussion of a question raised.The statement of BOND, J., is as follows:

"Plaintiff sues for injuries sustained by him on June 29, 1906, while working for the defendant upon a water tank at or near Keytesville, Mo., which he alleges, through the negligence of defendant, collapsed, gave way, and fell, causing him severe and permanent injuries.The answer was a general denial, plea of contributory negligence, assumption of risk and of release and satisfaction for the sum of $650 paid to plaintiff by defendant.The reply contained a denial of matters not therein admitted, and an averment that the instrument of writing executed by plaintiff on the 24th of December, 1906, purporting to release and satisfy all his claims against the defendant for the injuries sustained, was induced by fraud and wrongful conduct on the part of the defendant, in that the defendant procured the plaintiff to rely upon the statement of a physician selected by it to examine his injuries; that said physician made an untruthful statement to plaintiff as to the extent of his injuries, upon which plaintiff relied solely in accepting such compromise and executing said release; that plaintiff, prior to the commencement of this suit, tendered to defendant a return of the $650, which was refused, and hereby continues his tender thereof.For plaintiff there was evidence tending to show that he was a member of a gang of 12 or 13 men working under the direction of a foreman, A. C. Blake, known as the bridge gang, and employed by defendant in putting up water tanks; and in the prosecution of this work they had been for about a week engaged in the construction of a temporary tank on the banks of the Chariton river, about 28 miles from Moberly, which was intended to furnish water for a water train belonging to the defendant and used for supplying water at Moberly, Mo., during the continuance of a prevailing drouth.This foreman described specifically the method of constructing such tanks and the general dimensions of the one then being built, and the particular duties of the men employed by him in the construction work; the tank in question was intended to hold 16 feet of water; plaintiff was one of the workmen employed by him and assisted in the building of that tank; it was partly braced at the time it collapsed, which took place directly after they had eaten their dinner; these braces were nailed but had not been bolted as they should have been according to the usual and proper method of construction; that the plaintiff was acquainted with these facts and knew as much about the condition of the tank as he did.

"There was testimony that plaintiff was on top of the tank and engaged in pulling up dirt to stop a leak at the time of the injury; that it shook and rocked before falling, and this was commented upon by some of the workmen and deterred some of them from going upon it; that the plaintiff was a bridge carpenter.On his own behalf plaintiff testified: That he was injured on the 29th day of June while engaged in his work on top of the tank about 35 or 40 feet from the ground.That when it gave way he was unconscious for about a minute while the water was running over him.That he was caught after the fall between an iron band and a joist on top, 3×8 inches.That the iron band was a tank hook a half inch thick and 5 inches wide.That one of the staves was also on him, which was 4 inches wide and 3 inches thick and 16 feet long.That he found his arm broken and the bone exposed through the skin and his undershirt.That he was taken to Keytesville, about a mile and a half distant, where the doctor gave him a hypodermic injection, after which he was put in a caboose, and the conductor poured hot water on his arm until they got to Moberly, where he was taken to a hospital and then put in the operating room.That, after coming out from that, he found his arm was not treated with splints or casts but was kept lying on a pillow and remained in that condition a week or longer.After two weeks they put a plaster cast upon it.The physician who treated him was Dr. Clapp.That after removing the cast they put tin splints on it, subsequently replaced them with wooden splints, in which condition it was kept until he was examined in St. Louis, September 21, 1906.A physician who examined plaintiff three or four weeks previous to the trial testified that he found his arm was broken and disunited; that the plaintiff showed him pieces of bone which had worked out; that the separate bones were held together by exudated matter.This physician gave his opinion that, in order to remedy this, the fracture must be opened, the ends of the bone would have to be cut off and wired together, for in their present condition they were overlapping each other, and that this operation would shorten the arm three or four inches.He further stated that assuming plaintiff's testimony as to the nature and history of his injury to be true, on the 21st of September, 1906, it would not have warranted a skilled professional man in then stating to the plaintiff that there was a reasonable certainty of a complete recovery of the injuries to his arm.The testimony of this physician was corroborated by three others.There was further testimony for the plaintiff that he was approached by a representative of defendant to make a settlement of his claim and was offered $200, which he refused, telling him that he did not know of the condition his arm was going to be in; that he was then asked if he would go to St. Louis, if transportation was furnished him, and see Dr. McCandless, which he agreed to do, and about a week thereafter made a trip to St. Louis and met that claim agent, who told him which street car to take in order to reach Dr. McCandless, whom the agent said was one of the best physicians in St. Louis, and whatever he told him could be depended upon.The plaintiff replied he knew nothing about the said doctor and would have to take the agent's word for that, but would go out and see him; that he found Dr. McCandless at his residence; that he was accompanied on his trip out there by Dr. Ragsdale, a student at the Moberly hospital, whom he had asked to have accompany him as he was weak and did not want to go around by himself; that Dr. Ragsdale said to Dr. McCandless, `The plaintiff wants you to examine him;' that Dr. McCandless proceeded to do this for 30 or 35 minutes; that plaintiff then stated to Dr. McCandless that he wanted to know how his arm was going to be, whether it was going to get well or not, that he had to work for a living, and was contemplating a settlement, and would like to have him to be honest in his opinion as to whether his arm was going to get well or not.He said the doctor replied, `Young man, I will guarantee you will have a good arm inside of six months;' that the doctor further told him that there was a perfect union of his arm and advised when he got back to the hospital to take his arm out of the sling and let it hang down, stating that its paralyzed condition was on account of the arm being drawn up; that `after your arm hangs down at the side the circulation will be restored;' that he then asked Dr. McCandless whether he was positive the arm would get well, and the doctor replied, `Inside of six months that arm will be perfectly well;' that the doctor agreed to telephone his diagnosis to Mr. Austin, the claim agent who had induced plaintiff to call upon him; that the plaintiff went back to see Mr. Austin, who told him that he had gotten a telephone from Dr. McCandless, and that whatever Dr. McCandless told him he could depend upon.Thereupon they began to talk about the settlement and reached an agreement as to the amount, and plaintiff signed a release in the superintendent's office after he got back to Moberly, because he believed Dr. McCandless had told him the truth.Plaintiff, at the time of the trial, testified he had hardly any use of his arm.He could not put his hand on anything and push up; that there was a little life in his little finger, and that the rest of his fingers are dead and the thumb is stiff; that he can lift his hand up and down but cannot put his arm on anything with any weight and push down on it; that in one direction he can raise his arm from his body.The visit of the plaintiff to Dr. McCandless was about...