Wingfield v. Wabash Railroad Company

• Decision Date: 02 April 1914
• Parties: ANNIE WINGFIELD, Administratrix of Estate of ROBERT WINGFIELD, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

166 S.W. 1037

257 Mo. 347

ANNIE WINGFIELD, Administratrix of Estate of ROBERT WINGFIELD, v. WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri

April 2, 1914

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Reversed and remanded.

Sebree Conrad & Wendorff and J. L. Minnis for appellant.

(1) The court committed error in refusing the demurrer to the evidence and the defendant's instruction in the nature of a demurrer offered at the close of all the evidence, because the evidence fails to prove facts sufficient to constitute a cause of action. 1 LaBatt on Master and Servant, secs. 29 267; Holloran v. Iron & Foundry Co., 133 Mo. 470. (2) The plaintiff failed to prove fraud in the execution of the release; and for this reason the court erred in refusing the demurrer to the evidence, and the instruction in the nature of such demurrer offered by the defendant at the close of all the evidence. Brown v. Mining Co., 194 Mo 681; 1 Bigelow on Fraud, p. 473; McFarland v. Railroad, 125 Mo. 253; Morris v. McMahan, 75 Mo.App. 494; Cooley on Torts, 474; Wade v. Ringo, 122 Mo. 322; Homuth v. Railroad, 129 Mo. 629; Carroll v. United Railways, 157 Mo.App. 247; Mateer v. Railroad, 105 Mo. 320; 14 Am. & Eng. Ency. Law, 22; Wilder v. Decou, 18 Minn. 470; Development Co. v. Silva, 125 U.S. 247; Railroad v. Bennett, 63 Kan. 781. (3) The verdict is excessive. Murphy v. Railroad, 115 Mo. 111; Phippin v. Railroad, 196 Mo. 321; Clifton v. Railroad, 232 Mo. 708. (4) Instruction numbered 1, given on the part of the plaintiff, is erroneous. (5) The plaintiff failed to prove any fraud in the execution of the release, and the demurrer to the evidence should have been sustained for that reason.

Boyle, Guthrie, Howell & Smith and Guthrie, Gamble & Street for respondent.

(1) The defendant was guilty of indefensible negligence. The facts show gross negligence. No evidence shows that Wingfield knew of any danger. He says he did not. Even if the evidence had disclosed any knowledge on his part of the conditions producing danger, yet he was wholly inexperienced in this line of work and had a right to rely on the superior judgment of the master. The issue was settled by the jury. Jewel v. Bolt & Nut Co., 231 Mo. 176; Butz v. Construction Co., 199 Mo. 279; Clifford v. Transit Co., 202 Mo. 432; Shepard v. Transit Co., 189 Mo. 362; Jarrell v. Coal Co., 154 Mo.App. 561; Corby v. Tel. Co., 58 Mo.App. 27; Morgan v. Railroad, 136 Mo.App. 337; Shortel v. City, 104 Mo. 114; Burkhart v. Rope Co., 217 Mo. 466. (2) The release was obtained by wilful and intentional fraud, under circumstances of inequality of the parties and was unconscionable. Lomax v. Railroad, 119 Mo.App. 198; Althoff v. Transit Co., 204 Mo. 171; State ex rel. v. Stuart, 111 Mo.App. 493; Pomeroy's Equity Jurisprudence (4 Ed.), secs. 847, 928, 947, 948; Funding Co. v. Heskett, 125 Mo.App. 532; Hess v. Draffen, 99 Mo.App. 580; Brownlee v. Hewitt, 1 Mo.App. 360; Barnard v. Duncan, 38 Mo. 170; Derby v. Donohue, 208 Mo. 706; Lappin v. Crawford, 186 Mo. 462; Eaton v. Winnie, 20 Mich. 165; Connor v. Chemical Co., 17 A. 975. (3) And not binding under cases concretely applying to this very class of controversies. Carroll v. Railroad, 157 Mo.App. 277; Patterson v. Railroad, 55 Wash. 625; Bjorklund v. Elec. Co., 35 Wash. 439; Hedin v. Institute, 62 Minn. 148; Nelson v. Railroad, 111 Minn. 193; Railroad v. Hambright, 87 Ark. 614; Railroad v. Richards, 23 Okla. 256; Jones v. Railroad, 32 Tex. Civ. App. 198; Vialett v. Ry. & Power Co., 30 Utah 260; Railroad v. Goodholm, 61 Kan. 758; Lumley v. Railroad, 76 F. 70; Jones v. Accident Assn., 119 N.Y.S. 589; Dominicis v. Casualty Co., 116 N.Y.S. 975.

GRAVES, J. Lamm, C. J., concurs; Bond, J., concurs for the reasons assigned in the quoted portion of his opinion; Brown, J., concurs in result, and Walker, J., concurs in result and in the opinion except paragraph one; Woodson, J., concurs in result in separate opinion; Faris, J., not sitting.

OPINION

In Banc

GRAVES J.

The facts of this case were well stated by Bond, J., then Commissioner, when this case was pending in Division No. One. 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, Missouri, 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 twelve or thirteen 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 twenty-eight miles from Moberly, which was intended to furnish water for a water train belonging to the defendant and used for supplying water at Moberly, Missouri, 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 sixteen 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 thirty-five or forty 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, three by eight inches; that the iron band was a tank hook a half inch thick and five inches wide; that one of the staves was also on him, which was four inches wide and three inches thick and sixteen 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 about 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 separated 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...