Foster v. University Lumber Co.

Opinion by Mr. Chief Justice McBride. 1. The first question arises upon the validity of the release executed by plaintiff. By the provisions of Article VII, Section 3 of the Constitution, as amended November 8, 1910 (see Laws 1911, p. 7), if there is any evidence to support the verdict, we are bound by the finding of the jury, and therefore we are to a great extent bound by the testimony of plaintiff upon this point. This testimony is substantially that one Porteous, the night foreman of the mill, visited him shortly after the accident, identified himself as a brother in the same secret order, and advised him not to sue the company, telling him that he had not a witness in the world, and intimating that the company would do well by him. To ibis he made no reply. Upon the day the release was — 52 — signed, Porteons came again, and the witness gives the following account of what occurred: “A. He came down to my house and wanted to know how I was, and I told him. He says,.‘The old man wants to know why you don’t come down to the office. ’ I told him I had no business down to the office that I knew of. He says, ‘Well, the boys made up quite a purse for you.’ I says,‘Is that so?’ He says,‘Yes, they made up $192. I have got it here in my pocket, but I have it with some other papers so I won’t give it to you; I will wait and you will have to come down to the office this afternoon, because the old man wants to see you anyway.’ I went down to the office that afternoon. “Q. Now, state to the jury what occurred there at that time? “A. I went into the office and bid Mr. Kroenert the time of day. He wanted to know how I was feeling. I told him. “Q. What did you tell him? “A. I told him I was sick and suffering more pain than I really ought to under the conditions. “Q. Were you under the care of a doctor at that time ? “A. Yes, sir; Dr. Moore had dressed it. I think it was the day before this that he dressed my hand. “ Q. In what shape were you in regard to the effects of the anesthetic? “A. I was sick like an anesthetic makes anyone; sick at my stomach and vomited considerable. “Q. Were you sick up to the time of this date that, you went there? “A. For a month after. I went to see Dr. Moore something like a month after. “Q. When you went in there this afternoon what occurred; what did Mr. Kroenert say to you? ‘ ‘ A, He bid me the time of day; wanted to know how I was feeling, and I told him; I told him I was sick and I was suffering more pain than I really ought tq. He says, ‘I have a check here that the boys made up for you for $192.’ He says, ‘Now, I am going to give — 53 — you au allowance myself on that’; and he says, ‘It will make you a nice little purse.’ He says, ‘That will carry you through until you are well’; and he wanted to know how I was hurt, and I told him. “Q. What did you tell him? “A. I told him I tripped up and put my hand on this guard, and apparently the guard was loose for it bent over when I put my hand on it and let me come down on the saw and cut my hand off. And he asked me if I would stay there for two or three minutes until he went out. I says, ‘Yes.’ He went out, and I did not have the time; I did not look at the time when he went out or when he came in, but it was not very long, and he came in with a tall dark-complexioned man I have never seen before, never seen since, and don’t know who he was. And he sat down at his table. ‘Now,’ he says, ‘look over that and sign it, and I will have Mrs. Somebody [I don’t recollect her other name] write you out a check for $200’; and he says, ‘I will give you a job as long as that mill runs, and I will see that you and your family will never want for nothing; if you are ever in want, I want you to come and tell me. ’ So I looked at the paper; I did not read much of it; I started in, and I turned around to him and I says, ‘Is that in this paper?’ He says, ‘No, but you can take it for granted from me that it will be just as I am telling you that it will; you sign that and I will give you $200 more and you will never want for nothing. ’ I signed the paper and he had that man sign it, and he had the woman sign it; the woman stenographer at his place sign it; and that was all, and I took the money and left. “Q. In what shape was that, the money he gave you and the check? “A. There was a check from the men for $192, stating from the men, and there was a check stating from the company so much. “Q. When did you cash those checks? “A. I cashed those checks the next day. “Q. [By juror.] How much did you say was the check from the company? — 54 — “A.. $200. ‘ ‘ Q. How much did they make the total amount ? “A. $192 in the check and the day I received it my wife had received $2 in cash from Mr. Porteous. “Q. No, you don’t understand. You got a check for $200 from the company? “A. Yes. “Q. And what did you get from the men added to that made how much? “A. That was $392. “Q. They were in two separate amounts ? “A. Yes. “Q. And you got $2 in cash ? “A. $2 in cash from Mr. Porteous that he left with my wife. “Q. That was a part of the subscription from the men? “A. Yes. “Q. Now, was anything mentioned in any shape or form or manner at the time you say you signed this paper about it being a release? “A. No, sir; not anything. “Q. When did you again see Mr. Kroenert? “A. I don’t recollect exactly, but it was some days after that. ‘ ‘ Q. Under what circumstances ? “A. He told me if my hand kept on paining, or if my hand was not proceeding as I thought it was, to come and tell him. “Q. Did you go and see him? “A. I went and seen him and told him I was suffering more pain at that time than I ought to. “Q. What was done? “A. I don’t know; he said no more.” On cross-examination the witness testified as follows : . “Q. And did not Mr. Kroenert hand you at this time this paper, which I now present to you, and which I will ask to have marked defendant’s Exhibit C? — 55 — “A. That is my signature. “Q. And this defendant’s Exhibit 0 is the paper, is it not, that you signed at that time? “A. That is my signature on it. “Q. Well, that is the paper signed by you at that time? “A. Must be. “Q. Now, as a matter of fact, you took that and read it, did you not? “A. I did not. “Q. At that time? “A. I took it, but I did not read it. “Q. You say, then, you did not read it? “A. No, sir; I tried to read it; I glanced it over; and he says, ‘You go ahead and sign that, and I will have Mrs. Crary [or whatever her name is] make out a check for $200.’ “ Q. You had it in your hands ? “A. I had it in my hands. “Q. And glanced over it? “A. I glanced at it; I am not much of a reader; and it would take me some time to read it; and I am suffering pain, I was sick at the time; I could not content myself to stay there so long. “Q. You say you did not glance over it? “A. I just glanced at it, yes; and I asked him if the job was on that; that he said that I and my family would never want for nothing; I asked him if that was on it, and he says, ‘No, but I will guarantee it is all right; you go ahead and sign it. ’ “Q. You had some conversation in the presence of these witnesses, didn’t you? “A. That was it exactly. “Q. Didn’t you have some conversation to this effect that Mr. Kroenert at the time asked you if it was perfectly satisfactory to you in the settlement of any matter you might have, and you stated to him, ‘Yes, it was.’ “A. The only time any settlement was made, when I seen this in this paper, was when Mr. Ditchburn read — 56 — it to me. They called it a release to release the company. “Q. (Last question read.) In the presence of these witnesses who were there at that time? “A. He asked me— “Q. No, answer the question first. “A. He handed me the checks, and after he handed me the checks he asked me if I was satisfied; I told him I was, to that extent. That was on this subscription they made up for me. “Q. Did he not at that time, in speaking of the settlement of any possible claim yon might have against them, ask yon if you were entirely satisfied, and tell yon, if it was all right, to sign it, and, if yon were not satisfied, not to sign it? ‘ ‘ A. He did not; he did not. “Q. Yon received at that time, did you not, this instrument here, which I will ask to have identified as defendant’s Exhibit D? “A. Yes, sir. “Q. And that is your signature on the back of it? “A. Yes, sir.. “Q. Yon signed this instrument which is marked defendant’s Exhibit C on the 19th, did you not? “A. If that was the first day I went down to see Mr. Kroenert, it was. “Q. As I understand you, you told the jury that you deposited this check the next day. í £ Yes “Q. At what bank ? “A. Bates’ Bank on the east side. ‘ ‘ Q. As a matter of fact, this settlement was made on Saturday afternoon, and there were no banks open, and you did not deposit it the next day, the next day being Sunday, isn’t that true? “A. Yes, that is true. .1 deposited it on Monday morning ; I kept it in my house over Sunday. ‘ ‘ Q. So that you took this check home with you, did you not, Saturday afternoon? “A. Yes, sir. — 57 — “Q. And you had it in your house with you on Sunday? “A. On Sunday, and I deposited it Monday morning in Bates ’ Bank, Monday forenoon. “Q. So that your memory was faulty when you said it was the next day? “A. I got that check after 3 o’clock. Mr. Kroenert himself told me I had to keep it until Monday. “Q. What did you mean, when you said you deposited it the next day? “A. Well, I supposed it was, because the first time the bank was opened I went and cashed it, and I supposed it was the next day. ° I have not got the dates of these things so I don’t know. “Q. And during that afternoon and all the next day, which was Sunday, you had this check in your possession, which stated upon it, ‘For an accident while at work during the evening of the 11th of November, 1910’? “A. I gave it to my wife as soon as I came home. “Q. But you had this check subject to your inspection so you and your wife could read it before it was cashed? “A. I had it there, but I was not reading checks then; I was caring for my hand. “Q. Mr. Kroenert was not there to prevent you from reading it? “A. He did not,'but he had my hand in such a shape it prevented me; he set the trap. “Q. You had an anesthetic at the time your fingers were dressed and taken care of by Dr. Christmas ? “A. I had an injection and then an anesthetic. “ Q. Injected morphine into your arm ? “A. Something, I don’t know what it was. “Q. And then gave you an anesthetic at that time? “A. Yes, sir. ‘ ‘ Q. What time in the morning was that anesthetic administered to you; you were hurt about 3 o’clock? “A. Well, it was about half or three-quarters, between a half an hour and an hour after I was cut. I — 58 — sat in the office quite a long time before they got their instruments ready. “Q. So you took your anesthetic on or before 4 o’clock on the morning of the 12th? “A. I could not tell you just exactly what time it was — something after 3 o ’clock. “Q. About 4 o’clock, because you were hurt about 3? “A. Yes. “Q. You say you were taken to St. Vincent’s Hospital? “A. I was taken to St. Vincent’s Hospital. “Q. Do you say that you were still under the influence of your anesthetic at the time you were in Mr. Kroenert’s office on the 19th day of November, seven days after that? “A. Well, yes, pretty near a year after, and.I am still; I have got it in my system yet. “Q- You have got that anesthetic in your system yet?’ “A. Yes, sir; I have. “Q. So that you are still not quite in your right senses? “A. I am in my right senses now at the present time, but my stomach is not through with it. “Q. Were you out of your senses on the 19th of November at the time that receipt was signed? “A. Almost from pain and sickness. • “Q. From the anesthetic? “A. Yes, sir; and the pain in my hand. There was affection in. my hand, which the doctor admitted which caused me to suffer the pain. “ Q. You were suffering from the pain and not the anesthetic then? “A. Both pain and anesthetic together. “Q. You were? “A. Yes. “Q. Seven days after this accident? “A. Yes, sir. — 59 — “Q. TMs other check which has been presented, and which counsel has called for, is that your signature? “A. Yes. “Q. Is that the other check that was handed to you? “A. From the men for $192, yes. “Q. From the men? “A. I don’t know whether it is from the men or not. The benefit from the day crew and the night crew, yes. “Mr. Wilbur: I will offer this in evidence as de: fendant’s Exhibit E. “Received without objection and marked defendant’s Exhibit E. “Questions by the jurors: “Q. Did you ever read these checks after you received them? “A. No, I did not. I just looked at the amount on them and wrapped them up and went home and gave them to my wife and she opened them and looked at the amount and put them in our trunk. “Q. Did she read them? “A. No, she did not to my recollection. “Q. Any discussion about them? “A. No! “Q. (By Mr. Wilbur, resuming.) Now, as to this defendant’s Exhibit E, which is the check from the day crew and the night crew for $192, their benefit, as a matter of fact, was that check not given to you by Mr. Kroenert in his office on Friday, the day before you got this check and signed this paper? “A.- I got the two checks on the same day. This one and that one I got at the same time. I went home with them both the same time and cashed them both at the same time. “Q. And you say you did not get this one on Friday? “A. I got them both the same day. “Q. Didn’t you go down on Friday to have your hand dressed and at that time go and see Mr. Kroenert and get that one and then he said he would give you — 60 — the $200 if you would sign the. release and you said you would? “A. Pie did not say nothing to me about a release. “Q. And you came back the next day and he gave you that? “A. No, sir; he did not. “Q. And both of these checks were in your possession? “A. At the same time. “Q. Over Sunday from Saturday afternoon? “A. Yes. “Q. With those statements on them of what they were for? “A. I did not read them; I just looked at the amount. “Q. You say he told you the question of this job was not in the paper? “A. Yes, he told me that was not in the paper. I asked him if it was in the paper, and he said, ‘No.’ “Q. He told you it was not? “A. Yes, I asked him, ‘Is that down in the paper?’ And he said, ‘No.’ “Q. Did Mr. Kroenert read that release to you? “A. No, sir; he did not. “ Q. Do you claim now that Mr. Kroenert misstated to you the contents of what that release was? “A. He did not state what it was. He says, ‘Sign this and I will have Mrs. Crary write you out a check for $200, and that will make you a nice little bunch of money.’ That is what he said. ‘ ‘ Q. Then, as I understand, he did not tell you what was in that paper? “A. No, sir; he did not; never mentioned what was in it whatever. ‘ ‘ Q. That was the only talk you had with him about that paper, which you signed, was whether or not the kind-of job was in that and he told you it was not? “A. That was the only question that came up. “Q. So that, as a matter of fact, Mr. Kroenert did not deceive you when you signed that paper, did he? ‘‘A. He did not. — 61 — “Q. He did not say anything to yon'what was in it, did he? “A. He did not say what was in it, no. “Q. So that, as I understand yon to say, he did not represent to yon what that paper was at all? “A. He did not.” On redirect examination plaintiff testified as follows :. “Q. Counsel asked yon if Mr. Kroenert deceived yon when you signed this paper? “A. Yes, he did. “Q. What had been your conversation prior to signing the paper? “A. He' asked me how I felt-; asked me how I was cut, and had me explain it; and he told me that the boys made up a check for me, a purse for me for $192, and he says, ‘Now, I am going to go with them too, and that will make yon a nice little bunch of money, and as soon as yon are . able to go to work yon can come back and go to work.’ And he says, ‘Now, I know yon understand shingles thoroughly; yon can take that inspection job; and, furthermore, I will see that yon and your family will never want for nothing. ’ ’ ’ The check for $200 mentioned in the testimony was upon a printed form, except that the name of the payee, the amount, and the words, “For accident while at work during evening of 11th of November, 1910,” were typewritten thereon as follows: No. 18713. Portland, Oregon, Nov. 19, 1910. To Merchants’ National Bank, Portland, Oregon: Pay to the order of O. Poster $200.00 Two Hundred & No/100 dollars. [Not over Two Hundred $200$] University Lumber & Shingle Co., Per A. J. Kroenert, Manager. Settlement of account helow. . Por accident while at work during evening of the 11th of Nov. 1910. Endorsement of this voucher check constitutes acknowledgment by payee of full payment of account specified hereon. Void if altered or erased in any way. Betnrn to payor if not correct. — 62 — We think this furnishes sufficient evidence to go to the jury to sustain the contention that Porteous, acting for the company and under the direction of its manager, led plaintiff to believe that the company intended to give him a donation of $200, and that the manager allowed him to remain under that impression and hurried him into signing the release without explaining to him the contents. 2. It is true that under ordinary circumstances a man is not excused from the consequences of signing a paper which he has negligently failed to read; but this is not always the case. In the present instance the managér was his employer and apparently his sympathizing friend, and Porteous was his friend and a brother in the same secret order. He would naturally rely on their statements and would not be likely to suspect, any attempt tó overreach him. In addition it appears that he was sick and in great pain from his wounded hand, and in no condition to transact important business. While it is very unlikely that his mental and physical condition was the result of the anesthetic administered several days before, the fact that he was actually in the condition he described from some cause seems very probable. He is not to be branded as an intentional falsifier because he made a wrong diagnosis of the cause of his condition, a thing which persons skilled in the treatment of disease do every day. 3. Taking his statement as true, as we must, because the jury so accepted it, we conclude that he was in no condition to read and understand the contents of the paper signed by him; that he did not intend to release his claim against the company; and that the release procured under the circumstances was unfair and fraudulent. What our conclusion would be, sitting as. triers of fact and considering and weighing all the testimony, need not here be considered. The question — 63 — before us is not as to the weight of the testimony but as to whether there is any testimony to support plaintiff’s contention. Releases obtained under circumstances similar to those detailed in plaintiff’s testimony have frequently been disregarded or set aside by the courts: 6 Thompson, Neg., §§ 7376, 7377, and cases there cited; Olston v. O. W. P. & Ry. Co., 52 Or. 343 (96 Pac. 1095, 97 Pac. 538, 20 L. R. A. (N. S.) 915); Christianson v. Chicago St. P. Ry. Co., 67 Minn. 94 (69 N. W. 640). Nor can we agree with counsel that the transaction itself is devoid of any indication of overreaching and unfairness on the part of defendant. It is plainly the law that plaintiff had a right to compromise his claim for $200 or for $1 if he saw fit; but, whatever the circumstances bearing upon the probability that he would deliberately have done so, the practical loss of his hand was a fact then and always apparent to him. He knew that he was greatly and permanently injured. Anybody in his right mind would have known that, if entitled to any remuneration whatever, the sum of $200 would be ridiculous as a recompense. As a gratuity it might be thankfully accepted, as any sum so given, no doubt, would have been under these circumstances, but its gross inadequacy as compensation at once suggests the idea that it was received as charity. While this inadequacy may be but a slight circumstance tending to show that plaintiff did not know or realize that he was releasing a valuable claim for substantial damages, it is one entitled to consideration. The whole matter as the testimony leaves it was a question of fact for the jury, and not of law for the court. 4. The admission of the testimony of A. L. Bullis tending to show that a few hours after the accident Olaf-son, defendant’s foreman, was seen to tighten up the bolts on the sawguard and put in a new bolt is alleged as error. The authorities almost universally agree — 64 — that evidence of subsequent repairs and improvements cannot be admitted to show previous negligence: Skottowe v. Oregon S. L. Ry. Co., 22 Or. 438 (30 Pac. 224, 16 L. R. A. 596); Love v. Chambers L. Co., 64 Or. 129 (129 Pac. 492); Columbia & P. S. R. Co. v. Hawthorne, 144 U. S. 202 (12 Sup. Ct. Rep. 591, 36 L. Ed. 405). But it does not follow that, because such evidence is inadmissible for the purpose of showing negligence, it is always inadmissible for any purpose. Thus, as pointed out in Love v. Chambers L. Co., 64 Or. 129 (129 Pac. 492), where it is claimed by the defendant that certain' safeguards alleged by plaintiff to have been necessary could not be used without impairing the efficiency of the machinery, evidence that subsequent to the injury such safeguards were provided and actually used without any detriment to the operation of the machinery was admissible. Another ground, well established by reason and authority, is, in those cases where the jury has been permitted to view the machine, evidence is admissible to show that such machine has been repaired or altered subsequent to the accident: Marien v. M. J. Walsh & Co., 64 Or. 583 (131 Pac. 505). The evidence here objected to would seem to come fairly within this exception. Another equally well-established ground upon which such testimony may be admitted arises in those cases where the actual condition of the machinery, or other appliance, causing the accident is a question in dispute. In these cases such evidence is admitted, not to show knowledge of the defect' on the part of the defendant or to show negligence in failure to repair or guard the machinery,, but to show the actual condition at the time the accident happened: Brennan v. Lachat, 5 N. Y. St. Rep. 882; Louisville & N. R. Co. v. Malone, 109 Ala. 509 (20 South. 33; cited in 42 L. R. A. 762, note); Texas & N. O. R. Co. v. Anderson (Tex. Civ. App.), 61 S. W. 424; Kuhn v. Illinois Cent. R. R. Co., 111 Ill. App. 323; City of Emporia v. — 65 — Schmidling, 33 Kan. 485 (6 Pac. 893); Harter v. Atchison, 55 Kan. 250 (38 Pac. 778). In Brennan v. Lachat, 5 N. Y. St. Rep. 882, the court says: “The evidence was clearly competent as tending to show that defendant had removed the cause of the accident. The cases cited by appellant are all cases where it was attempted to be shown that after an accident a different or perhaps safer mode of structure, or preventive, or a different mode of conveyance or rate of speed was adopted after an accident, except in the case in -31 Hun, where it was attempted to be shown that, some months after an accident happened in the hallway of a tenement house by reason of a defective oil-cloth covering, the landlord put down a new one, there can be no question but that such evidence is incompetent as tending to prove negligence. If an accident happened upon a railroad by reason of a broken rail, it would be quite competent to show that after the accident the broken rail was removed and replaced by a sound one as a mere matter of fact, but it would be incompetent to show that after the accident a different make and style of rail was used as tending to show negligence in using the style of rail upon which the accident took place. ’ ’ 5. It would have been proper for the court, by ruling or instruction, to have confined the evidence admitted to the purposes herein indicated, but the objection was general and no such limitation was requested. Under such circumstances, defendant cannot now complain of its admission: Woods v. Missouri, K. & T. R. Co., 51 Mo. App. 500. 6. It is objected that the allegations of fraud in the procurement of the release are not sufficient to justify the admission of plaintiff’s testimony in regard to it. The allegations are somewhat general; but, no objection having been made by demurrer or by motion to make more definite, we think them sufficient after verdict, — 66 — especially since the attention of the court was not specifically called to the alleged defect during the trial. 7. The instruction given by the court in reference to the degree of care required of a master and servant correctly stated the law: Doyle v. Missouri, K. & T. Trust Co., 140 Mo. 1 (41 S. W. 255); Choctaw O. R. R. Co. v. McDade, 191 U. S. 64 (24 Sup. Ct. Rep. 24, 48 L. Ed. 96). Standing alone, the instruction is not to be commended, but taken in connection with the whole charge, which was able, and fully and fairly stated the issues, the defendant has no reason to complain. 8. The requests of defendant for instructions were, we think, sufficiently covered by the general instructions of the court. The instruction given is as follows: “This paper, purporting to be a release, is regular upon its face, and the presumption of law to' begin with is that it was executed in good faith. Fraud is never presumed but must be established under our laws by reasonably clear and satisfactory evidence. The burden of proof upon this question is upon the plaintiff to establish that this paper, purporting to be a release, was signed and executed through fraudulent misrepresentations-upon the part of the defendant.” The language of defendant’s request was as follows: “I instruct you that it is a general rule that the plaintiff cannot be heard to say that he did not know the contents of the release or the paper signed by him when he had an opportunity to read it.” It may be conceded that this request states a rule to a certain extent general, but the exceptions to it are so numerous that, stated baldly and without the qualifications which the law has attached to it, the probable result would be to mislead the jury, who would be likely to accept the statement that such was the “general rule” to mean that it was the universal rule. 9. The objection that the sealed verdict was received and opened after the jury had separated cannot avail — 67 — the defendant. It appears from the direction of the court to the jury that it was agreed that they might disperse upon delivering to the bailiff their sealed verdict. No objection to this statement was made by counsel for defendant at the time;‘neither was any objection made at the time the bailiff delivered the verdict to the court, nor at any time, until a motion for a new trial was filed. In the condition of the record, we must assume that consent was given by counsel to the separation of the jury and to the reception of the verdict in their absence. The judgment is affirmed. Affirmed.