Conrad v. Keller Brick Co.

8 Ohio N.P. (n.s.) 537

• Court: Summit County Court of Common Pleas
• Decided: April 15, 1907
• Status: Published

Opinion

Doyle, J. (orally).

The solving of this matter is not unattended with difficulties by any means, and this is a pretty short time to give to settling such important matters as these. An inferior court has too much to do to consider the matter long and delay other parties who are on hand to have their matters adjudicated.

I.have taken up the matter first on the two questions as to whether there is a cause of action stated in the petition, and whether there are allegations in the petition showing that there was contributory negligence on the part of the plaintiff.

I am satisfied that there are facts set up in the petition sufficient to constitute a cause of action. Of course there are al--legations there showing what, to my mind, is negligence on the part of this plaintiff in a certain way.- I regard it as careless for the plaintiff, after he got the stone out of this trough where the shaft with the knives placed on it revolved, to keep his knee on the belt, ft would have been a wise precaution to have immediately got oiff of that position.

But the defendant’s foreman had control of the levers which started .that machinery. So far as the allegations of the petition are concerned, he knew this man was occupying that position ; he was in a position where he could see whether the plaintiff had got .off or removed himself from that position, and with no other warning than a call and pulling of the lever, he started the machinery and brought on the accident. We must assume for the purposes of this motion that these allegations are true, because we are passing on the sufficiency of the petition, and not taking into consideration the facts that may be proven.

The facts set out in this petition, however, give us a situation of the case under which it seems- to me that it/ was the duty of the defendant’s foreman to have seen that the plaintiff was out of danger before he pulled the lever. So that his negligence was the proximate cause of the injury. If that were the only matter in this case, I should be disposed to let the .¡case go to the jury.

Now I come to the question whether it was plaintiff’s duty, before making the defense that he does to the affirmative matter set out in the second ground of defense of the defendant, to have tendered back ,the money that was paid him. The reply is very skillfully drawn, there is no question about that. A master hand has drafted the reply, and I doubt whether the like of it can be found anywhere in the books. I don’t believe any other reply could have been made to make more trouble for the defendant than that reply.

The defendant, in its second ground of defense, perhaps might have got along without setting out the writing, but still it isn’t necessary to go into that. It has set out that there was a full settlement, for the sum of $275, and says that thereupon, in consideration of the payment by this defendant of said sum, and on or about September 8, 1905, he executed and delivered to this defendant his certain receipt or release in that behalf in writing as follows:

“In consideration of the sum of $275, to me in hand paid by the Keller Brick Company of Cuyahoga Falls, Ohio, I do hereby release and forever discharge. said the Keller Brick Company from any and all actions, claims and demands for, upon or by reason of any damages, loss or injury which heretofore have been or which hereafter may be sustained by me in consequence of any injury which I received at the plant .of the Keller Brick Company, Cuyahoga Falls, Ohio, on or about the ninth day of August, 1905.”

Now that’s the defense. The liability, if any, that the Keller Brick Company owed to the plaintiff they claim was settled and adjusted by that instrument — that settlement, and evidenced by that instrument.

The reply contains a general denial of. each of the allegations in that answer, not admitted to be true or qualified. It is broad enough .to cover the allegations there of the execution of that instrument.

Now as to the qualification. He denies in this reply that he received and accepted from the defendant as a full and complete settlement and release for all claims for damages and expenses against defendant arising from said injury, for the further sum of $275, and so forth, while he admits that on the eighth of September, 1905, the sum of $275 was paid .to him, .and that he signed what he understood to be a receipt for said payment, he denies that said payment was made to him by the defepdant, or that he ever knowingly signed any paper writing that released or purported to release the company from liability for the injury received by plaintiff as set forth in his petition.

The plaintiff says that if he signed the receipt and release, and by the way, there is no denial of the signing of this paper, except that general denial by this reply, plaintiff says .that if he signed the receipt and release of which defendant’s amended answer purports to set forth a copy, he signed the same without understanding the true import and meaning thereof, and his signature thereto was obtained by deceit and fraud practiced upon him as hereinafter set forth. He doesn’t deny the probability or possibility of the thing existing, but says that if there existed that thing, why that .then some other thing is connected with it. Something necessarily follows from its existence. He admits that there is a probability that he did, and there isn’t any denial that he signed it, but if he did sign it then it was signed under the following circumstances, which he proceeds to relate.

Now what follows is a defense to this settlement evidenced by this written instrument set out in the defendant’s answer. He says, that if such a-document is in existence, this is his defense to it. I don’t see that it makes a different situation, than if he had come out openly and said that he did sign the instrument set forth in defendant’s answer, but thát he signed it by reason of the fraud perpetrated upon him and then .proceeded to set up these things which constituted the fraud.

So that it is different from the situation where he might have pleaded in his reply that this same indemnity company had paid him that money, and that they had paid it'to him for .a certain purpose — I don’t care what that purpose might be — and had ignored the Keller Brick Company entirely, perhaps set out that these people'had paid this money on -account of some liability that they owed to him. He might have had accident insurance of his own and received that money from them. The indemnity company might have provided him indemnity upon • premiums paid by the defendant in fact and settled with him.

• That isn’t the situation made by this answer and this -reply. There isn’t any positive assertion of any money paid by a volunteer.- The situation is, that if he signed the paper set forth in this answer of the defendant, it was signed by reason of those representations. That takes us back to the answer,' and the answer doesn’t show anything except that a settlement was made with the defendant.

You have enough set forth in the reply to nullify that settlement if it was gotten by fraud. Manhattan Life Ins. Co. v. Burke, 69 Ohio St., 294, and Gould v. Bank, 86 N. Y., 75, 79, which are argued out at length, and with good reason would compel you, before you can repudiate that agreement, even for the grossest kind- of fraud, to put the parties in statu quo, so that I'don’t see any way out of it but'to find that the defendant upon the pleadings as -I have them here, would be entitled to judgment because of there having been a failure to put the defendant back in the position in which it was before it perpetrated this alleged fraud upon plaintiff.

I know that upon -that reply a strong argument can be made, because it has been made to support the position of the plaintiff.

If a reviewing court find his position correct, it is better that the reviewing court decide the matter before this ■ court goes through a two or three days trial. I will therefore sustain the motion of the defendant and render judgment on the pleadings in favor of the defendant.