Yeager v. St. Joseph Lead Co.

• Decision Date: 09 January 1929
• Citation: 12 S.W.2d 520,223 Mo.App. 245
• Parties: CHARLES YEAGER, RESPONDENT, v. ST. JOSEPH LEAD COMPANY, APPELLANT. [*]
• Court: Missouri Court of Appeals

12 S.W.2d 520

223 Mo.App. 245

CHARLES YEAGER, RESPONDENT, v. ST. JOSEPH LEAD COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

January 9, 1929

Appeal from the Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.

AFFIRMED.

Judgment affirmed.

P. S Terry for appellant.

(1) It is an invariable rule of law that in the absence of fraud or mistake parol evidence is not admissible to contradict or vary a written contract. The written contract is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties. A written contract of release cannot be annulled or avoided by proof that one of the parties to it, who was sound in mind and able in body could not read or write, did not know the terms of the agreement and neglected to ask anyone to read it to him when he signed it. Crim v. Crim, 162 Mo. 544; Dyrssen v. Union Electric Light & Power Co., 295 S.W. 116; Austin v Brooklyn Cooperage Co., 285 S.W. 1015; Woosley v Wells, 281 S.W. 695; Thompson v. Railway, 142 Mo.App. 234; Whitney v. Johnson, 14 Fed. (2nd Series) 24. (2) To neglect to read an instrument of writing before signing it, when the ability and opportunity is present, is held to be such gross negligence as to bar a rescission or reformation of the instrument when nothing was done by the other party to prevent it from being read. There is some limitation to the rule when applied to a person who cannot read, but as to such a person the limitation does not go to the extent of placing upon the other party the duty, in the absence of a request thereof, to read or explain the contents of the writing. It is the duty of the person who cannot read to use ordinary care and make some effort to ascertain the contents of a written instrument before signing it. Szwed v. Morris, 187 Mo.App. 510; Austin v. Brooklyn Cooperage Co., 285 S.W. 1015; Crim v. Crim, 162 Mo. 544; Anderson v. Drug Co., 149 Mo.App. 554; Thompson v. Railroad, 142 Mo.App. 234; Reid v. St. Louis-San Francisco Ry., 187 S.W. 15; Cairo T. S. & R. Co. v. United States, 45 S.Ct. 247; Whitney v. Johnson, 14 Fed. (2nd Series) 24. (3) A release, like other contractual obligations, has for its primary rule of construction the intention of the parties, which must govern, but those intentions must be ascertained from the words used in the instrument and not from matters dehors the writing. Atwater v. Guernsey, 266 F. 278, and affirmed by the Supreme Court in 41 S.Ct. 150; Hays v. Sound Timber Co., 261 F. 571; Cairo T. & S. R. Co. v. United States, 45 S.Ct. 247; Whitney v. Johnson, 14 Fed. (2nd Series) 24. (4) In an action at law for personal injuries, it was no valid objection to a written release of liability offered in evidence by defendant that plaintiff did not know when he signed it that it was a general release or that he had sustained physical or personal injuries, it not appearing that the release was obtained by fraud or misrepresentations or that plaintiff was not in full possession of his faculties when he executed it. Simpson v. Pennsylvania Railroad, 159 F. 423; Cairo v. T. S. R. Railroad Co., 45 S.Ct. 247; Pacific Mutual Life Ins. Co. v. Webb, 157 F. 155; Whitney v. Johnson, 14 Fed. (2nd Series) 24. (5) The burden of proving the fraud or conspiracy charged against the defendant is upon the plaintiff. They must make out their case against it by clear, cogent and convincing evidence. . . . Fraud is never presumed, and, while it may be proved by circumstantial evidence, if the transaction relied upon to prove fraud is as consistent with honesty and good faith as with a fraudulent purpose, it will be referred to the better motive. Walsh v. Walsh, 285 Mo. 181; Woosley v. Wells, 281 S.W. 695; Jones v. Nichols, 280 Mo. 653; Reed v. John Gill & Sons Co., 201 Mo.App. 457; Whitney v. Johnson, 14 Fed. (2nd Series) 24. (6) A release executed on the faith of representations or beliefs, expressed by a physician employed by defendant, as to what will happen in a given case, representations of a future event, or representations of a future happening, are not sufficient to avoid the release when executed fairly. Reed v. Gill & Sons Co., 201 Mo.App. 456; Homuth v. Street Railway Co., 129 Mo. 629; Woosley v. Wells, 281 S.W. 695. (7) To hold an employer liable for failure to furnish a reasonably safe working place, tools and appliances, negligence must be shown. Cashman v. Republic Metal & Rubber Co., 285 S.W. 109; Lowe v. Railroad, 265 Mo. 587; Thompson v. St. Louis-San Francisco Railroad, 274 S.W. 531; Bowman v. Foundry Co., 226 Mo. 53; Sabol v. St. Louis Cooperage Co., 282 S.W. 425; Schneider v. Media Mining Co., 206 S.W. 593. (8) Where the plaintiff's instruction clearly deals with the whole case and directs a verdict for the plaintiff upon a given state of facts, such an instruction cannot exclude the theory of the defense and be held a good instruction unless the theory of the defense as evidenced by the evidence outlined in other instructions, which, when taken with that of the plaintiff, can be said to properly give the whole law of the case. Wingfield v. Railroad, 257 Mo. 347. (9) It is the duty of the court to declare the legal effect of facts proved. Tyler v. Hall, 106 Mo. 313; Clark v. Cordry, 69 Mo.App. 6; Stewart v. Sparkman, 75 Mo.App. 106; Holliday-Klotz Lumber Co. v. Markam, 96 Mo.App. 51; Norton v. Higbee, 38 Mo.App. 467; Ember v. Dry Goods Co., 127 Mo.App. 383; Brannock v. Elmore, 114 Mo. 55; Davies v. Baldwin, 66 Mo.App. 577. (10) The practice of submitting a case solely with one instruction on the measure of damages and another on the validity of a release is a practice to be condemned, but is not reversible error. Wingfield v. Wabash Railroad Co., 257 Mo. 347.

W. A. Brookshire, Abbott, Fauntleroy, Cullen & Edwards and John C. Vogel for respondent.

(1) A release of a claim for personal injuries may be avoided if it is executed in reliance on misrepresentations as to the nature and extent of the injuries amounting to fraud on the part of the releasee, its agent or physician. Carroll v. United Rys. Co., 157 Mo. App., 267; Wingfield v. Wabash R. R. Co., 257 Mo. 347; St. Louis & San Francisco R. R. v. Cauthen (Okla.), 48 A. L. R. 1447 and cases cited in note 25, p. 1486; Raw v. Robertson (Mo. Sup.), 260 S.W. 751; 34 Cyc, p. 1064, sec. 4-b. (2) The paper writing, purporting to be a release, dated the 11th day of April, 1925, specifically mentions that it is in payment of an accident which occurred at No. 4 Federal, Flat River, on or about the 2nd day of April, 1925, and hence the general language in said release will be held not to include an injury then not contemplated by either party. Grumley v. Webb, 44 Mo. 445; Blair v. Chicago & Alton R. R., 83 Mo. 393; Kent v. Ocean Accident & Guaranty Corp., 20 Ont. L. Rep. 226; Lumley v. Wabash R. R. Co., 76 F. 66, 96 F. 773; Reddington v. Blue & Rafferty (Iowa), 149 N.W. 933. (3) The small consideration of $ 20 is entitled to weight in determining the intention of the parties to the release. Anderson v. Meyer Bros. Drug Co., 149 Mo.App. 554; Christyanson v. Chicago Ry. Co., 67 Minn. 94, 69 N.W. 640, 23 R. C. L., p. 398, sec. 27 and cases cited. (4) The second release was without consideration so far as the first injury is concerned. Harrison v. Murray, Works, 9 Mo.App. 348; Siewig v. Tocke, 112 Mo.App. 414. (5) The plaintiff complained to the master that the master was negligently putting rocks of enormous size into the chute and the master promised to desist from such practices and under the circumstances plaintiff cannot be held guilty of contributory negligence by continuing his work. Bleisner v. Distilling Co., 174 Mo.App. 139; Walsh v. Union Quarry & Construction Co., 205 Mo. 159; Jewel v. Bolt & Nut Co., 231 Mo. 176; George v. Railroad, 225 Mo. 364; Holloran v. Iron Foundry Co., 133 Mo. 479; Ryan v. Western Box Co., 156 Mo.App. 693; Conroy v. Iron Works, 62 Mo. 35; Stevens v. Hannibal & St. Joe Railroad, 96 Mo. 207.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff while engaged in the work he was required to do as an employee of defendant. The injury occurred on November 6, 1924. The trial, which was had on September 21, 1927, with a jury, resulted in a verdict and judgment for plaintiff for $ 2000, and defendant appeals.

At the time of his injury, plaintiff was working in defendant's mine in St. Francois county. The mine is something over 400 feet deep. There are two levels in the mine. Plaintiff was working on the lower level. The upper level is about eighty feet above the lower level. A chute or tunnel about eighty feet long extends diagonally from the upper to the lower level. The walls of the chute are made of rock, except the lower end, which is made of lumber. The chute is about ten feet square. The lower end of the chute, which is made of lumber, is about three one-half to four feet square. At the lower end of the chute, there is an iron door, which is operated with a lever. The chute was used to convey lead-bearing rocks from the upper to the lower level. The rocks were loaded into cars at the lower level, being discharged directly from the chute into the cars. When no cars were being loaded, the door of the chute was kept closed. It was the plaintiff's duty to tend the chute and punch the rocks with a crowbar so that they might flow through freely, and he had been engaged in that work for about two years. The rocks customarily sent through the chute were not larger than twelve inches in diameter, but occasionally rocks two and one-half to three feet in diameter were sent through. These rocks were difficult to handle, and were dangerous to plaintiff. He was so situated that he...