Dyrssen v. Union Electric Light & Power Co.

*223 ATWOOD, J. This is an action to recover- damages for a wrist injury sustained'by plaintiff while cranking a Ford automobile..furnished him by defendant in connection with bis .duties.as meter inspector. Tbe trial judge sustained a demurrer tq plaintiff’s evidence, whereupon the jury returned a verdict for defendant, and from, the judgment rendered thereon, plaintiff has .appealed. . ¡. Plaintiff, alleged that defendant wasmegligent m failing to furnish plaintiff with reasonably, safe tools, and appliances with which-to work in that “the spark, control and the commutator-On said Ford automobile was defective and .that, the said spark qqntrol ’caused the commutator on said automobile to. stay advanced.too- far, thus causing the engine of said automobile to run backwards, instead of .forward and thus caused said iron crank to fly backwards with great forc.e and violence and suddenly strike, plaintiff, on the right wrist,. ” . , Defendant’s answer consisted of a general denial, and pleas of assumption of risk, contributory negligence, and the execution and delivery of a full release. In reply plaintiff denied each .and every allegation contained in defendant’s answer, and by way of further reply.stated that “the.alleged release as set up in defendant’s answer is null and void and has no force and effect for the following- reasons, to-wit: That plaintiff at the time he signed said instrument, did not know .it was a release for his cause of action, but thought it was a receipt for certain sick benefits to which plaintiff was entitled. Plaintiff states that he, as an employee of the defendant, upon becoming injured or sick or losing time, was entitled by virtue of his employment with said company through a mutual organization which is maintained,, to certain sick benefits and at the time .plaintiff signed said alleged release it was read to him by defendant’s agents as merely being a receipt for his said sick benefit, and plaintiff did not know of said release until the defendant filed its answer in this cause. That by virtue of the misreading of said release to plaintiff by defendant’s agents, and *224 by virtue of false and fraudulent statements to the effect that said instrument was not a release but merely a receipt for certain sick benefits, plaintiff was induced to sign said alleged release and at the time of the signing of the same there was no meeting of the minds between plaintiff and defendant, and plaintiff never at any time intended to sign a release for his cause of action herein, but merely intended to sign a receipt for said sick benefit which accrued to'plaintiff as aforesaid.” The release pleaded in defendant’s answer is as follows: ‘ ‘ RELEASE. “July 14, 1921, Webster Groves, Mo. “In consideration of being paid by the Union Electric Light & Power Co., at the rate of full time (which amount is equal to or in excess of the payments required under the Workmen’s Compensation Act of Missouri) from June 6, 1921, until such time as I am able in the opinion of the company’s surgeon, to return to work, in addition to the sum of one dollar paid bo me by said company, receipt of which is hereby acknowledged, and also for the further consideration- of free medical attendance furnished me by said company, I hereby RELEASE AND FOREVER DISCHARGE said UNION ELECTRIC LIGHT AND POWER CO., its successors and assigns from any and all claims and causes of action whatsoever in law or equity which I ever had or may have under the Common Law, Statutory Liability or Workmens’ Compensation Act on account of injuries or any consequence thereof sustained by me as a result of an accident suffered by me at Webster Groves, Mo. on June 6, 1921. “Name James G. Dyrssen, “Address 7211 Picadilly Ave., “Maplewood. “release. “The foregoing release was read to James Dyrssen and signed by him in our presence and said James Dyrssen stated that he fully understood that by signing this document he released UNION ELECTRIC LIGHT AND POWER CO. from all claims for his injuries as therein stated. “Oscar HufpmaN, “JuLE SCHILLING, “Witnesses.” Appellant’s only assignment of error is that “the court erred in reading to the jury and in giving defendant’s instruction in the nature of a demurrer to the evidence at the close of plaintiff’s case.” Such action was nothing more than telling the jury what was the legal effect of the plain undisputed evidence before it. Such has been held not to deprive the party against whom the verdict was di *225 Erected of bis right to a jury trial, [38 Cyc. 1534; Mallen v. Longworthy, 70 Ill. App. 376; 26 R. C. L. 1060 ; Hopkins v. Nashville, R. Co., 96 Tenn. 409, 32 L. R. A, 354.] Section 1238, Revised Statutes 1919, provides that issues Such as. were made by the answer and reply relating to...the alleged-release “shall-be submitted with all the other issues in the case to .the-jury, and .a. general verdict or finding, upon all 'the. issues,. including the. issue or issues of fraud-so raised, shall be sufficient.’.?. It follows that if the issue of fraud thus-raised, is-not-supported, by evidence sufficient to go to the- jury, defendant’s demurrer was properly, given. Respondent says that “plaintiff was sui juris, in possession of his faculties, able to and had full opportunity to read the instrument which he signed,” and that “under this situation the law presumes that he knew its contents, and he will not be permitted to take advantage of his own failure or negligence and be heard to say that the. instrument did-not express the real.contract.” This is expressive of a well recognized general rule observed in Crim v. Crim, 162 Mo. 544, l. c. 552; Mateer v. Ry. Co., 105 Mo. 320, l. c. 351, 354, and other cases cited by respondent. In his reply plaintiff1 stated that-he was induced.to-sign the alleged release “by virtue of the misreading said release to plaintiff by defendant’s agents.” He now contends that under the proof adduced in support of this allegation he is not.amenable to the.general rule above indicated, and for justification leans heavily upon the following expression by Judge Goode in Tait v. Locke, 130 Mo. App. 273, l. c. 282; “We know of no case in which it was ruled that the actual misreading of a paper purporting to contain a contract, thereby inducing the signing of it, was not a fraud which the signer might set up in defense, even though he could have read the paper himself." Such a betrayal of confidence is revolting and so infrequent that it is not likely to be anticipated.” - - The above expression must be read and understood as' qualified by Judge Goode’s preceding words that “the defense of fraud cannot be rejected, unless the inference is irresistible that defendant failed to observe ordinary care to learn the contents, of the paper, in controversy before signing it.” Its'proper interpretation is thus well stated by Judge NoetoNI in O’Shea v. Lehr, 182 Mo. App. 676, l. c. 690 (italics ours) : : “Where'one is induced T>y another to rely upon his. reading the contract to him -before signing, and such person misreads it, with a •view to decéive, and thus obtains his signature to a document different from that intended, relief may be had on such showing alone. But this proceeds from the fact that such a betrayal of‘confidence is *226 both so- revolting and so infrequent that it is not likely to be anticipated by the average man.” Plaintiff’s evidence tended to show that his foreman was Oscar Hoffman, to whom he reported the defective condition of the car on the' Saturday-before the Monday when he was injured. This foreman ^reported the car in good condition to plaintiff Monday morning, and after plaintiff was injured he took him to his home. Thereafter plaintiff discussed with Hoffman the payment of certain disability benefits he wás to receive from an association to which he belonged. As to the actual signing of the release plaintiff testified in part as follows (italics ours): “Q. Now tell the circumstances under which this was signed, tell your understanding of that? A. Do you want me to tell what led up to it, I just signed it. “Q.‘ Just what led up to it? A. I was complaining that I did not receive any sick benefit money. •“'Q. You were complaining to whom? A. To Mr. Hoffman, he said he 'would get my -paper signed first which would entitle me to that paper. “Q. Who told you that? A. Mr. Hoffman told me that several days'l'ater: He produced the paper and read it to me. “Q. Did he read it to you? A. I don’t remember how the wording of it was, I was standing as far as from here to that post away fróín him in the other side of that — of his desk. “Q. What were you talking about? A. We were talking about the sick benefit; he said as soon as he could get that paper shot through the main office in St. Louis, my money would come out. ‘‘Q. Did he say that then and there at the time you signed it? A. . Yes, sirthen at the time I signed it. “ Q. How did it read to you, what was your understanding of it ? A; My understanding was— “MR. GARDNER: I object to that, that is not his understanding at alb what happened there. “The Court: What his understanding was is incompetent. “Mr. H-Eege: Q. Do you remember how he read that? A. No, sir, I cannot recall ¿just how he read that. “Q. Now I will show you here Defendant’s Exhibit 3 and ask you to look at that? “Mr. Gardner: That is Defendant’s Exhibit 1. “Mr. Heege: Q. Yes, sir, I will show you Defendant’s Exhibit 1 and ask you if that is what he read to you on that date? A. I don’t-remember ever hearing or seeing that. I don’t remember seeing that. “Q. I did not ask you that question; is that What he read to you? A. No, sir, that is not what he read to me. *227 “Q. That is not what he read to you? A. No sir. “ Q. Can you remember some of the words that he used? A. No, sir. ' “Q. When he read the document to you? A. No, sir. ‘I James Dyrsson hereby receipt,’ it started out in that way, just like an ordinary receipt it started out. I could not recall the exact number oj] words or the wording of it. “Q. Did he mention to you: — ? A. It was a receipt. I did not pay that mxoch attention to it. “Q. A receipt of what? A. For a sick benefit.” The evidence further shows that plaintiff was a young man of good education and business experience, fully able to read and understand the meaning of the alleged release and at the time he signed the same he was laboring under no physical or mental handicaps that would have interfered with his doing so; that he knew the foreman who read it to him was neither the secretary nor the treasurer of the sick benefits association, and that no confidential relation existed between him and this-foreman/We find nothing in the record from which it may be reasonably inferred that plaintiff’s foreman induced him to rely on his reading of the release. We think the ease falls not within the exception stated in the eases cited by appellant, but within the doctrine now generally followed in this and other jurisdictions, and thus stated in 2 Kent’s Comm. 485: “The common law affords to everyone reasonable protection against fraud in dealing; but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly or a careless indifference to the ordinary and accessible means of information. ’ ’ Numerous authorities in this State sustain the view that something more is required to render the question one of fact for the jury than the mere signing of a paper without reading it by one who is amply able to read and understand, even though he relies on the other’s statement concerning the contents or character of the instrument signed. [Johnson v. Ins. Co., 93 Mo. App. 580, 590, 591; Magee v. Verity, 97 Mo. App. 486, 71 S. W. 472; Crim v. Crim, 162 Mo. 544, 552, 553, 554, 63 S. W. 489; Ely v. Sutton, 177 Mo. App. 546, 162 S. W. 755.] According to the rule applicable to the facts here in evidence the trial court did not err in directing a "verdict for defendant, and the judgment is affirmed. All concur.