Woodford v. Illinois Cent. Gulf R. Co.

• Decision Date: 26 November 1974
• Docket Number: No. 35464,35464
• Citation: 518 S.W.2d 712
• Parties: Ronald E. WOODFORD, Plaintiff-Respondent, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corporation, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 712

518 S.W.2d 712

Ronald E. WOODFORD, Plaintiff-Respondent, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, a corporation Defendant-Appellant.

No. 35464.

Missouri Court of Appeals, St. Louis District, Division One.

Nov. 26, 1974.

Motion for Rehearing or for Transfer to Supreme Court Denied

Jan. 14, 1975.

Application to Transfer Denied March 10, 1975.

Voorhees & Summers, Alphonso H. Voorhees, St. Louis, for defendant-appellant.

Gray, Friedman & Ritter, Charles E. Gray, St. Louis, for plaintiff-respondent.

DOWD, Chief Judge.

Action under the Federal Employers' Liability Act. Defendant appeals from a judgment entered for plaintiff as a result of a jury verdict for $160,000.

Plaintiff was injured in 1967 while working for defendant railroad. A lawsuit followed. The case was settled in October of 1968, and plaintiff returned to work for the railroad. This appeal deals with an alleged second injury in 1969. Both accidents involved disc injuries to the same area of the back.

The following facts were testified to at trial: In 1967, plaintiff sustained a back injury during the course of his employment as a carman for defenadnt. A surgical procedure ¹ was performed and plaintiff returned to work in 1968, after beginning a lawsuit against defendant. This lawsuit was ultimately settled for $30,000, and plaintiff's suit was dismissed with prejudice. On October 12, 1968, plaintiff signed a release of any claim against defendant on account of 'injuries sustained by Ronald E. Woodford at or near Bloomington, Illinois on or about the 1st day of August 1967.' At the time plaintiff executed the release there were present plaintiff's attorney, the railroad attorney, and the claim agent for the railroad. Plaintiff was told at that time that he would not lose his job but would continue his employment as a burner-welder He was furnished an assistant 'at all times' on this job. He was able to do his job under the job conditions existing at that time. He had 'slight problems' with his back when the weather changed. However, the release recited that $30,000 was the sole consideration received by plaintiff and that the release was the entire agreement between the parties.

After the 1967 injury, plaintiff returned to work in March of 1968. During the first part of August, 1968, plaintiff changed jobs from carman to burner-welder because added duties at his old job were causing him soreness and stiffness in his lower back. The general foreman promised plaintiff that he would have a helper whenever he was doing heavy work.

In September of 1968, plaintiff was examined by a Doctor Harold Walters, who had been seeing plaintiff since January, 1968. Doctor Walters testified that at the time of the September examination, plaintiff would have been able to continue doing the work of a burner-welder, but that plaintiff should not be subjected to a lot of bending, stooping, lifting or straining. Doctor Walters testified that if plaintiff would have continued to do light work his condition should have stabilized and that many people who have ruptured discs learn to live with them, as long as there is not too much strain on the back.

During the ensuing months, plaintiff often suffered discomfort and pain when the work became to heavy or when extra work was assigned. Plaintiff sometimes received help during this time, but sometimes he requested help and it was refused. In December of 1968, plaintiff was assigned extra work beyond the ordinary duties of a burner-welder. The extra work included lifting and moving heavy pieces of metal, as well as moving box cars. This extra work affected plaintiff's back condition, and he complained to the general foreman frequently. In July of 1969, plaintiff was hospitalized, and operated on for the removal of a ruptured disc. Plaintiff was off work three months and then went back to work with a doctor's release. In November of 1970, plaintiff was rehospitalized and a spinal fusion was performed. This time the doctor's release limited plaintiff to light work only. Plaintiff was released on July 28, 1971, and since that time has not been employed by defendant, but has held several jobs, some of which have caused him pain.

Plaintiff's amended petition alleged that he was an employee of defendant at the time of his injuries; that during the year 1969, plaintiff was injured while doing work assigned to him by defendant which defendant knew or should have known would result in great bodily injury to the plaintiff. Plaintiff claimed that defendant failed to provide plaintiff with both reasonably safe working conditions and adequate help, that such failure by defendant was the cause of substantial injuries to plaintiff's back, and that by failing to provide such safe conditions and adequate help, defendant was thereby negligent. As a result of these injuries, plaintiff will continue to suffer severe pain and have difficulty holding steady employment.

Defendant's amended answer raised three defenses: (1) plaintiff was contributorily negligent; (2) plaintiff had signed a release in 1968 regarding a 1967 accident which covered these same injuries; (3) plaintiff had begun a lawsuit on these injuries in 1968 which was dismissed with prejudice and is therefore res adjudicata to this action.

Plaintiff contends that the 1969 injuries were new injuries and not covered either by the release or the former lawsuit.

On this appeal the defendant raises the following four points: (1) trial court erred in overruling defendant's motion for directed verdict; (2) trial court erred in refusing to give two instructions offered by defendant; (3) trial court erred in admitting certain testimony over defendant's objections, and (4) the verdict was excessive.

The first point presented by defendant-appellant is that trial court erred in overruling defendant's motion for a directed verdict. Defendant raised two contentions in this motion: (1) the release signed by plaintiff in October, 1968 covers these injuries and precludes plaintiff from bringing this suit and (2) plaintiff's previous suit was dismissed with prejudice and is res judicata to plaintiff's present action.

In reviewing defendant's motion for directed verdict, it is the duty of appellate courts to consider only the evidence most favorable to plaintiff, the reasonable inferences to be drawn therefrom and to disregard defendant's evidence unless it aids plaintiff's case. Pavyer Printing Mach. Wks. v. South Side Roofing Co., 446 S.W.2d 445 (Mo.App.1969).

Having thus reviewed the evidence, we find that there was testmony by plaintiff's two doctors to the effect that plaintiff's injuries were sustained as a result of the heavy lifting required of plaintiff by the added duties of plaintiff's job. The doctors also testified that in September 1968 plaintiff was capable of doing the work assigned. Plaintiff also testified that in October, 1968, he was capable of performing his work as a burner-welder under the job conditions existing at that time. He was furnished a helper at all times on the job. Trial court, therefore, could have concluded, as did the doctors testifying for plaintiff, that these were new injuries and not covered by the release, especially since the release was by its terms limited to the injuries sustained in the 1967 accident in Bloomington, Illinois.

Defendant's second claim on his motion for directed verdict was that the dismissal of plaintiff's 1968 suit is res judicata to his present claim. We note initially that the principle of res judicata requires that four 'identifies' be present before application. They are: identity of the thing sued for, identity of the cause of action, identity of the persons and parties to that action, and identity of the quality of the person for or against whom such a claim is made. Jones v. Des Moines & Mississippi River Levee Dist. No. 1, 369 S.W.2d 865, 872 (Mo.App.1963).

Again, taking the evidence in the light most favorable to plaintiff, there was medical testimony to the effect that plaintiff had considerably recovered from the 1967 accident and his condition was stabilized and was reinjured as a result of the heavy work required of him as a burner-welder. In light of this testimony, the 'identity of the same cause of action' was not met and trial court properly ruled that the first suit was not res judicata to plaintiff's present action. Trial court is required to submit a case to the jury if plaintiff's evidence justifies within reason the conclusion that defendant's negligence was the cause of plaintiff's injuries. Wilmoth v. Chicago, Rock Island and Pacific R. Co., 486 S.W.2d 631, 634 (Mo.1972).

Appellant's second point on appeal is that trial court erred in refusing to give Instructions A and B as offered. The instructions purport to submit the same issues to the jury as were contended by defendant in his motion for directed verdict, i.e., that both the release and res judicata bar plaintiff's present claims. Instructions A and B, as offered by defendant, are as follows:

'INSTRUCTION NO. A.

Your verdict must be for defendant if you believe:

First, plaintiff signed and delivered the release to defendant, and

Second, plaintiff was paid $30,000.00, for such release.

'INSTRUCTION NO. B.

Your verdict must be for defendant if you believe:

That plaintiff previously filed a law suit against defendant for damages for the same condition which is the subject of this case which law suit was dismissed with prejudice to plaintiff.'

It is defendant's argument that even if his motion for directed verdict on these two issues fails, he should, at the very least, be allowed to submit those theories to the jury. We need not reach this contention for the reason that the instructions are erroneous and the trial court was correct in refusing to submit them in the form they were offered.

Instructions may not be confusing, misleading, inadequate nor prejudicially erroneous. Tile-Craft Products Co. v. Colonial Properties,...