Ross v. Oliver Bros. & Honeycutt

153 S.W. 756, 152 Ky. 437, 1913 Ky. LEXIS 687

• Court: Court of Appeals of Kentucky
• Decided: February 25, 1913
• Status: Published

Opinion

Opinion of the Court by

Judge Carroll

Reversing.

At the time the accident under investigation occurred th’e appellees were engaged in masking a fill. The material used in' the fill was obtained from nearby land and then loaded .on oars and transported to the fill. In Obtaining the material a steam shovel was used', which was operated by stationary engines, three of which were located seme distance back of the shovel, and one near the boom from which the .shovel was .suspended. The engines back of t'he shovel were in Charge of an engineer, and the one located at the (boom was in charge of an employe known as a craneman; and the shovel was moved' by chains that ran on pulleys over the boom. The engine operated by the craneman was nsed for the purpose of forcing the shovel into- the dirt anid pulling it out when it was filled, while the other' engines, operated by the engineer, were used for the purpose of lowering and raising the shovel and emptying its contents into the car. In the performance of this work, and when he was injured, appellant was the craneman and 'Couch was the engineer, both being employes of the appellees and also capable experienced' men' in the work they were engaged in.

While oiling one of the chain's that was used to transfer power from the engines under the control of O'ouch to the shovel, appellant was struck on the head by the end of a chain that became unfastened from the shovel, and was very seriously injured. In this action to- recover damages appellant charged that his injuries were caused by the defective condition of a bolt Which permitted' the chain to get loose, and also by the fact that the engineer, in running the chain so that it might be oiled', negligently applied more power than was necessary, thus causing the bolt to break.

In answer the appellees, after traversing the petition averred that it was the duty of appellant to oil the chain and to- see that it was in proper condition, and to discover defects in it, and that while- he was engaged in oiling it, the movement of the chain was interfered with by a bolt, -and thereupon appellant, who- -saw what the trouble was, requested the engineer to give the chain a jerk, which' the -engineer did, with the result that the chain came loose where it was fastened with the bolt. They, further averred that the craneman and engineer were fellow-servants and therefore they were not liable for any accident that happened to him (by the negligence-, if any, of the engineer; and also- pleaded in defense of the action the following receipt executed to them by appellant:

“In consideration -of the fact that Oliver Bros. & Honeycutt have -assumed' to pay and have paid all my expenses for physicians, for board and other, expenses while confined at the hospital at Lexington, Ky., I hereby release them and the C., N. O. & T. P. Ry. Co. from any and all claims I may have against them by reason of tbe injuries I received while in their employment at or near High Bridge, Ky., on April 7, 1910, and all' expenses from April 7th to April 25th, 1910.”

In -a reply the appellant, in avoidance of the receipt, averred that while he was unconscious in a hospital the appellees procured bis signature to a paper which he supposed and believed to be a statement concerning the manner of his injury, and consenting that appellees pay the doctors they had employed, and that it was not understood by him to be a release of the liability of appellees for his injuries, and he received no consideration therefor, and made no contract or settlement releasing his claim for damages, and did not .know until the appellees answered herein that it was claimed that -any settlement had been made with him. He 'further averred that the receipt was a fraud upon his rights, .and his signature thereto was procured without, his being aware of the fact that the paper contained a release, and at a time when he was weak and nervous -and sick and unable to- comprehend or know the contents of any paper, or to make any contract, or to protect himself, or understand or know what -he was doing. He further averred that the receipt was signed on the 24th day of April, 1910, which date was Sunday, the 7th day of the week and the Christian -Sabbath, and that the appellant and appellees did not belong to any religions sect or denomination that observed any -other day as -a day of rest and for religious worship, and was- in violation of law, and was pro-cured by fraud.

The- -appellant, the -only witness in Ms behalf as to the cause of the injury put the accident wholly upon the ground1 that while- he was -oiling the chain by direction of the engineer, Ms -superior officer, the -engineer in operating the engine, jerked the -chain in such a negligent manner as to cause- the bolt to break. He did -not rely on. -any defective or unsafe appliances or fixtures but did say that it was: not his duty to- discover -or look out for defects- or to- repair them.

The evidence for .appellees- was to- the effect that it was the duty of appellant to- oil and repair the chains and fixtures on the boom, as well as other -parts of the machinery about the -shovel and- boom; and that a few minutes before the accident happened appellant asked if he would have time to- -oil the chains on the boom, -and was told that he would, and- thereupon, without direction from any one, he went up on the boom for the purpose -of doing the- oiling, and immediately -afterwards he discovered that in some way -the chain was -eau-glit and would not run, and directed Couch, the engineer, to apiply the ¡power, which he did, and a bolt that fastened the chain came out, totting the end ,of the chain loose. It also showed that the tap or nut on the holt had worked oft, and this caused the bolt to come out.

In reference to the receipt the appellant, putting his evidence .in narrative form,, said: while I was in the hospital and in bed Dr. McLean brought a paper in there for me to sign, and I signed it. When Dr. McLean brought the paper to me he said he had' a papier that he would like to get me to sign; that he, had to make out a report to the railroad company and he wanted the paper signed so that he could get his pay, and I signed it. He did not read the paper over to me. Just told me in words. I could mot read, as I was sick and nervous; and he did not tell me that it was a settlement of any claim I had or discussed with me the settlement of any claim. I signed the paper on .Sunday, the 24th of April, and left the hospital the next day. I relied on what the doctor told me was in the paper, and would not have signed it if I had known it was a settlement of any claim for damages. I was in a very bad, nervous condition that day. My head was aching and: paining me and I didn’t know what was in the paper.

Dr. .McLean said in substance that he was one of the physicians who attended the appellant, but that he did not see him many times while he was in the hospital. He said he was requested to take the paper appellant signed and' givie it to him, and that when he went into toe room in the hospital where appellant was he said to him: “This is the agreement that Mr. Honeycutt wants you to sign to see that all your bills are paid.” He read it and I left it with Mm and went out, .and when I came back in a short while, he said, “It’s all right; I will sign it,” and I 'witnessed'his signature. He had told me before I took the paper to him that he did not want to leave the hospital until Ms bills were paid, and I reported that fact to- Oliver Bros. & Honeycutt, .and as a result they handed me the paper to get him to sign it. When he signed the paper .he appeared perfectly normal.

When the court came to instruct the jury he directed them in instruction No. 1 that “Unless the jury believed from the evidence that the written release dated April 25, 1910, exhibited and read in evidence to the jury, was procured: from the plaintiff by the defendants or some one representing them; without the plaintiff knowing or being aware of the fact that said writing contained a release, and <at a time when his mind was so enfeebled that the plaintiff was unable to know or comprehend the contents of the paper, and when he did not know or understand what he was doing, the jury should find for the defendants without regard to the other instructions.”

After the case had been submitted to the jury the bill of exceptions shows 'that they returned into court and reported that no verdict had been reached, whereupon the court suggested that they ought to be able to make a verdict, and asked them to give the case further consideration. “That as the. jury were leaving the room, Mr. Gormley, one of the jury, said to the court that there was some disagreement among the members of the jury as to the meaning of the first instruction to them. The court then directed the sheriff to bring all of the jury back into the room, and the entire jury returned into the court room. When all of the jury werie back in the court room the judge asked what the question was that the jury desired to ask him; whereupon Mr. Gormley said the jury.did not exactly understand thle first instruction. The judge then took the instructions and read aloud the first instruction, and after reading it remarked that he didn’t see how he could make it any plainer. Thereupon Mr. Overstreet, one of the jury, remarked that'there were two clauses in the instruction, one that if the plaintiff signed the release without knowing what was in it, and the other that if the plaintiff was of unsound mind, and that the jury did not know whether or not they were required to find: both those states of fact. The court then took the instruction and after looking at it said to the jury that those two clauses were joined by the conjunction “and,” and that to relieve the plaintiff from the effect of the release the jury must believe both. The jury then returned to the jury room and within a very few minutes returned into- court aud rendered their verdict.”

The verdict was for the defendants, now appellees, and counsel for appellant ask a reversal of the judgment entered on the verdict for assigned errors of the court in .giving and refusing instructions.

li will be observed that in- this instruction the jury were told in effect that they must find against appellant unless they believed from the evidence that the receipt was procured from him when he was ignorant of the fact that it contained a release and at a time when his mind was so enfeebled that he could mot comprehend the contents of the paper or understand what he was doing.

Under this instruction, although the jury might have reached the conclusion from the evidence that the appellant signed the paper without knowing what it contained, they must nevertheless have found against him unless they further believed that his mental condition was such that he could not understand the paper even if he had read or heard it read. That this instruction played an important part in the deliberations of the jury is manifested by what occurred between the court and the jury, as set out in the bill of exceptions heretofore quoted, and if this instruction was erroneous in requiring t-e jury to believe the existence of both the facts noticed before they could return a verdict in favor of appellant it cannot be doubted that it was highly prejudicial.

The question then is, was it necessary that appellant should have been not only ignorant of the contents of the paper but so feeble that he could not understand its contents before he can be allowed to attack it. It is a general as well as sound rule that a party who is in the full possession of his faculties, and who is able to read, will not be heard to .say that he did not know the contents of a paper that he signed .and which he had ample opportunity to read and understand, Spitze v. Baltimore & Ohio Railroad Co., 75 Md., 162, 32 Am. St. Rep., 378; J. I. Case Threshing Machine Co. v. Mattingly, 142 Ky., 581. There are, however, many exceptions to this rule growing out of the circumstances surrounding the parties and the relations they sustain toward each other, and one of these exceptions arises when the evidence of the complaining parity clearly shows that he relied upon the representations made to him by the party producing thie paper, as to its contents, and the conditions surrounding him were such thlat a person of ordinary prudence could not be said to be negligent in failing to read and understand for himself the paper that he signed. When this appears the party signing the papier will not he estopped to question its validity by the fact that he trusted to his adversary. Western Mfg. Co. v. Cotton & Long, 126 Ky., 749.

And we think the circumstances -surrounding the appellant at the time he signed this paper are- sufficient to bring the transaction within this well reaognjizied exception to the general rule before stated. The appellant was just recovering from .a desperate injury, and at the time was confined to his room in the hospital. The party who produced the paper to him was one of his attending physicians who wasi acting as the. agent of appellees, and appellant can not be said to have been negligent or lacking in ordinary prudence when he accepted as true the statements of his physician as to what the paper contained without reading it for himself. Tie had the right to trust Dr. McLean and depend on the truth of what he .said. That Dr. McLean deceived appellant as to the contents of the paper is made clear by the fact that although ble knew its contents he testifies that he told appellant that it was an agreement that his bills would be paid, without telling him that it was also’ a release. In Page on Contracts, vol. 1, sec. 64, the principle w-e have laid dlown is thus stated:

“If the party defrauded could read, had a chance to read, and omits to read the instrument, relying .on' the adversary party’s statement of its contents, the instrument should on principle he treated as void as between tbe parties thereto, since it .should be no. defense for the party committing the fraud to say that the other party was negligent in believing Mm. The majority of the courts take this viiew of such cases.”

In Bates v. Harte, 124 Ala., 427, 82 Am. St. Rep., 186, the court in speaking to the point under consideration said:

“One who has signed a contract in negligent ignorance of its contents cannot, in the absence of fraud or misrepresentation, set np such ignorance in avoidance of the obligation. If be cannot read, due care for his own interest requires that he should have it read to him. If, however, Ms .signature to the instrument, without knowledge of its contents, has been- induced by misrepresentations concerning sarnie, made by the opposite party, the fraud involved in such misrepresentations will furnish á defense to .an action- based on the purported undertaking.”

In Maxfield v. Schwartz, 45 Minn., 150, 10 L. R. A., 606, the court said:

“While in the •ordinary business transactions of life men are expected to exercise reasonable prudence and not to rely upon others with whom they deal to care for and protect their interest, this requirement is not to he carried so far that the law shall ignore or protect positive intentional fraud successfully practiced upon the simple-minded or nnwary. As between the original parties, one who has intentionally deceived the other, to his ¡prejudice, is not to he heard to .say in defense of the charge of frand that the innocent party ought not to have-trusted him.”

Having this view of the law applicable to the question under consideration, it follows that the court, in our opinion, erred in using the conjunction “and” in the instruction. If the appellant at the time he signed the paper was imposed upon and deceived, and in fact a fraud was practiced on him, he had the right to assail its validity, although his mind was not enfieebied, and of course if his mental condition was such that he oould not know or understand the contents of the paper, this likewise furnished him a good reason for attacking its validity.

But as the instruction modified as indicated would not conform to the law as we understand it, the court on another trial should in place of this instruction tell the jury in .substance that as the appellant admitted signing the receipt offered in evidence, it was binding on him, and they should so find, unless they believe from the evidence that before signing it he did not read or hear it read, or know that it was a release of his claim for damages, and in- signing relied entirely on the representations of Dr. McLean, who deceived him as to its contents, or unless they ¡believe that at the time he signed it his mental condition was such that if he had read the receipt he would have been une,ble to understand .and appreciate its moaning or effect.

Counsel for appellant further insist that as this receipt or comtraet was signed on Sunday it was void. We do not think so. The mere fact that a contract is .signed on Sunday does not affect its validity if some essential thing in connection with it, or that is neces'sary to make it effective between the parties, is done, or remains to be done, on some either day. Hofer v. McClung & Co., 24 Ky. L. R., 355. In this case the consideration for the execution of the contract, as set out in it, was not paid for some time after its execution.

In reference to the suggestion of counsel for appellees that it was necessary appellant should return the money paid under the receipt before attacking its validity, we think the court fully protected the rights of appellee in directing the jury to give 'them credit by this amount on any sum they might find for appellant. If this money was paid, as the evidence for the appellees shows, in settlement of medical expenses incurred by appellant, appellees are entitled to he credited by the amount of it on any judgment against them, and this is all.

As appellant testified that it wias not his duty to' inspect the chains or fixtures, and he did not know of the defect in the bolt or the fact that it was oiut of repair, and the evidence for appellees showed that the accident was due to a bolt coming ont because the tap came off of it, we think the jury in addition to the 'Other instructions should 'have been instructed that if it was not the duty of appellant to inspect or keep in order the chains and fixtures, or if he 'did not, after discovering that the chain was caught, direct the engineer to' jerk or pull it, they should find for him, if they believed the appellees knew, or by the exercise of ordinary care could have known, that the holt was defective or loose and appellant did not know its condition and could not have known of it by the exercise of ordinary care.

When the duty of inspection does not devolve on the servant, and when he is not required to look out for defects and make repairs', it is the duty of the master to- exercise ordinary care to furnish him with reasonably safe fixtures and appliances to work with, and' if he is injured by the failure of the master to perform this duty, he has a cause of action that may be put upon this ground if the servant does noit know and in the exercise of ordinary care could not know the defective conditions.

We are further of the opinion that the words “and if they further believe from the evidence that a person of ordinary prudence engaged in like service would not, under similar conditions, have given such directions or made such request” should' he omitted from instruction No. 3. If appellant, while engaged in oiling the chain, disc®vered a defect in the bolt, amd after discovering such defect, lie directed Conch, to jerk or move the chain, ,and except -fior this- direction would not have been injured, he should mot recover. He wa.s an experienced servant, entirely familiar with the machinery he was working with, and all parts of it, 'and the engineer had the right to he governed (by his instructions in moving the chain. Of course the engineer was not. authorized t® give the chain am unnecessary or violent jierk or pull, but this feature is presented in instruction No. 2.

The fellow .servant question raised in the pleadings and evidence was properly submitted in an instruction which advised the jury that they could not find for appellant unless Couch was his 'superior and had the right to direct him

For the reasons indicated the judgment is reversed, with directions for a new trial in conformity with this opinion.