Bennett v. Himmelberger-Harrison Lumber Co.

116 Mo. App. 699 | Mo. Ct. App. | 1906

BLAND, P. J.

(after stating the facts). — 1. Aside from the release, we think plaintiff was entitled to have his case submitted to the jury. In respect to the release, he was bound by it, whether he read it or not. He could read, and his duty -was to read it before signing it and he ought not now to be heard to say he did not read it when he had every opportunity to do- so. In the language of Gantt, Judge, in Mateer v. Railway, 105 Mo. l. c. 352, 16 S. W. 839; “To permit such a ruling, would unsettle the business affairs of the country.” In Porter v. Woods, 138 Mo., the defendant sought to avoid an assumption clause in an instrument which he had accepted on the ground that he did not read the instrument. The court, at page 548, said: “If he did not read it and inform himself of the contents, it was his own fault and he should be held as if he had done so,” citing Glenn v. Statler, 42 Ia. 107; Snider v. Express Co., 63 Mo. 376; Och v. Railway, 130 Mo. 27, 31 S. W. 962, and Mateer v. Railway, supra. [See also Frost Mfg. Co. v. Springfield Fdry. Mfg. Co., 79 Mo. App. l. c. 655; Girard v. St. Louis Car Wheel Co., 46 Mo. App. 79.] In the latter case, the court held that, “A release of a cause of action stands upon the footing of a compromise and should be upheld if fairly made. It should not be vacated for fraud in an action at law unless the evidence of the fraud, if believed, and the circumstances attending its execution, are such as would warrant a chancellor in setting it aside.” Under our present statute, the sufficiency of the evidence to establish fraud is a question for the jury. The evidence of fraud, if there is any substantial evidence of it, is exceedingly slight.

But the plaintiff contends that the release was signed without consideration, His contention is supported by the evidence to> the effect that the plaintiff was carried upon defendant’s pay roll for three months for which he was paid as a matter of grace; that the money was given to him as a gratuity and not for the purpose of procuring his signature to the release. He received $54 at the time lie signed the release. It was therefore a question of fact to be determined by the jury whether or not there was any consideration moving from the defendant to the plaintiff for the execution of the release and we conclude that the court did right in refusing the compulsory nonsuit.

2. Plaintiff’s first instruction told the jury in effect that if they found the defendant failed to furnish plaintiff reasonably safe implements or furnished him unsafe implements with which to climb the tree, such act or acts constituted negligence. Assuming for the sake of the argument that the climbing spurs were defective, suppose defendant used prudence in its purchase of the spurs and afterwards its blacksmith skillfully and cautiously reconstructed a portion of them and the defect was not known to defendant’s officers or agents and they could not have detected the defect by the exercise of ordinary care, would the defendant, nevertheless, be guilty of negligence? We think not. If so1, then the master is an insurer of the safety of every tool, machine or appliance with which he requires the servant to work. The rule of law, as we understand it, is that the master is bound to' exercise ordinary care, which means care commensurate with the risk of the work to be done or the use of the tool to be used, to furnish his servant with reasonably safe tools with which to work, and when he has exercised reasonable care and precaution to furnish a reasonably safe tool and, nevertheless, it turns out the tool was unsafe, he is not liable, unless the defect which made the tool unsafe was known to him or could have been known to him had he exercised reasonable care and caution in the selection of the tool, or to inspect it after it had been purchased. [Porter v. Railway, 71 Mo. l. c. 79; Bowen v. Railway, 95 Mo. 268, 8 S. W. 230; Breen v. Cooperage Co., 50 Mo. App. 202; Hester v. Dold Pack. Co., 84 Mo. App; 451.]

The master is not required to furnish absolutely safe appliances. His duty is to use ordinary care and foresight in procuring appliances and in keeping them in good order. [Tabler v. Railway, 93 Mo. 79, 5 S. W. 810; Bowen v. Railway, 95 Mo. 268; Browning v. Ry. Co., 124 Mo. 55, 27 S. W. 644; Livengood v. Joplin L. & Z. Co., 179 Mo. 229, 77 S. W. 1077; Henry v. Railway, 109 Mo. 488, 19 S. W. 239; Palmer v. Kinloch Tel. Co., 91 Mo. App. 106; Stumbo v. Duluth Zinc. Co., 100 Mo. App. 635, 75 S. W. 185; Glasscock v. Dry Goods Co., 106 Mo. App. 657, 80 S. W. 364.]

The instruction made it the absolute duty of the defendant to furnish plaintiff safe climbing spurs and for this reason it was erroneous.

1 The same error occurs in plaintiff’s instruction number two. As stated above, plaintiff is absolutely bound by the release unless it was given without any consideration. Whether it was given without consideration, we think, under the evidence, is a question for the jury.

For the errors herein noted, the judgment is reversed and the cause remanded..

Goode, and Nortoni, JJ., concur.