BERNARD PEVESDORF v. UNION ELECTRIC LIGHT & POWER COMPANY, Appellant.
Division One
October 19, 1933
64 S. W. (2d) 939
Nor does it seem to have been the intention, if intention is the criterion, as seems to be held in the cases last cited, of the city and its voters that the cost of acquiring the right of way for this sewer should be refunded out of the proceeds of the bonds voted. The city authorities have throughout acted on the theory that only the costs of construction proper would be so paid, and when the money was in hand warrants were promptly issued to pay construction costs, and not right of way costs. Such a warrant was issued to and accepted by relator without question, so far as this record shows. There are evidently many persons to whom warrants should be issued if relator gets its warrant, aggregating $73,000, not counting interest which seems to have been paid on the construction tax bill. Relator practically concedes that there is not a sufficient amount left in the Turkey Creek Bond Fund, after paying the construction assessments with interest and the costs of the bond issue, to pay the amount incurred in acquiring the right of way. In the original petition it was alleged that there was an amount in this fund sufficient to pay all expenditures for acquiring the right of way. At the trial, evidently to avoid any controverted fact, the relator amended his petition so as to allege only that there was a sufficient amount in this fund to pay relator‘s demanded warrant. It is asserted in argument, and not denied, that there is not sufficient funds in this account to pay all claims of this character.
Other questions are discussed, but what we have said disposes of the case. As the case rode off on the motion to quash, the equivalent of a demurrer, the facts were not fully developed, but we are satisfied that a trial could not change the result. The judgment will, therefore, be affirmed. Ferguson and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur.
Theodore Rassieur, George M. Rassieur and John P. McCammon, Jr., for appellant.
“That said garage was operated and maintained by defendant without defendant providing and maintaining open outlets to the outside air and without providing an exhaust fan or other means of ventilation so that fresh air would enter and stale air and gases go out of said garage, by reason whereof noxious fumes containing carbon monoxide gas, which were emitted from said automobiles, collected and accumulated in said garage and permeated the atmosphere thereof, and thus rendered said place injurious to the health and life of employees engaged in work there.”
Defendant‘s answer was a general denial and a plea of release. Plaintiff‘s reply alleged that the release was never delivered. Plaintiff obtained a verdict for $50,000. Thereafter, a remittitur of $20,000 was ordered and made and from the new judgment entered for $30,000 defendant has appealed. Defendant contends that its demurrer to the evidence should have been sustained, so it is necessary to review all of the evidence.
Plaintiff‘s evidence was that he commenced to work in defendant‘s garage in 1916; that he was then in good health, worked steadily and was never bothered by any kind of fainting spells or peculiar feelings. He had evidence that there was no suction fan ventilating system in the garage; that about seventy or eighty automobiles were kept there, most of them being large trucks; and that the motors of these trucks were started in the garage and were allowed to run while they were warming up. Motors were also run at “other times throughout the day when trucks were brought in or taken out and when they were tuned up or repair work done on them.” The result was said to be (1918 to 1921) that “when automobiles were started up there in the morning the place would get real cloudy like, foggy or smoky; sometimes it was so cloudy or dense in there you could not see five feet away from you;” that the men complained about this condition; that it caused them to have sick headaches; and that they would be made nervous and go to bed without eating supper. One former foreman suggested to his superior that it was necessary to have “a suction type system that would take the foul air away
Plaintiff said that on March 2, 1923, he was overcome by gas in the center of the garage after working about an hour tuning up quite a few cars; that “the atmosphere in the garage was real smoky at the time;” that he was taken home and to his family doctor; and that he did not go back to work for four or five days. Plaintiff further said that, prior to that time, he had made complaints about automobile exhaust fumes in the garage; that he made suggestions to his superior about wanting a ventilating system put in; that he would open doors and windows in the garage for ventilation and that his foreman would close them. Plaintiff was a member of the safety council of defendant‘s employees and he said he was acting in that capacity in attempting to keep doors and windows open for ventilation. Plaintiff also testified to two occasions when the hood of a truck fell and hit him on the head while he was working on a motor, which left him with a headache condition the rest of the day; but each time he continued to work the rest of the day. He also said that once while working on a tail gate of a truck another truck backed into it and pressed him against the wall. According to his testimony, however, these incidents took place after he had been overcome by
Plaintiff‘s petition pleaded, and defendant admitted at the trial, that his trouble was epilepsy. To show that this resulted from carbon monoxide gas poisoning, plaintiff had considerable expert medical testimony. By this testimony, it was shown that carbon monoxide, by reason of much greater affinity for the hemoglobin in the blood, displaces the oxygen therein and thereby deprives the brain of oxygen; that “the patient usually becomes dizzy, has shortness of breath, or breathes more deeply and may have a condition of chilly sensation, pallor, or if it comes on slowly enough, this cherry red color of the skin that is often spoken of. He may be nauseated, vomiting and unconsciousness,” and that “the first effects are primarily not in the brain but in the blood vessels to the brain. There is a swelling, breaking down of the tiny veins and capillaries and that in turn causes nerve tissue damage.” It was also said that this may result in a destruction of nerve tissue in the brain and produce a lesion and that such a lesion will cause what is known as organic epilepsy, which is epilepsy produced by “an organic lesion of the brain.” It was also shown that blows upon the head which would injure the brain could also produce a brain lesion which might result in epilepsy (which would also be organic). The testimony of plaintiff‘s doctors was that epilepsy which did not result from a brain lesion was known as idiopathic epilepsy which includes hereditary epilepsy and all unknown causes thereof (as distinguished from discoverable organic causes). These experts examined plaintiff by testing his reflexes and making vibratory and other tests. From such examinations, they stated that they believed he had a brain lesion (one said a spinal cord lesion) such as could result from the effects of carbon monoxide gas and therefore that he suffered from the organic type of epilepsy. The following excerpts from the evidence show the substance of their testimony:
DR. LEE D. CADY:
“Q. This evidence of lesion which you found by the abnormal reflexes, has that led you to believe there is something wrong with Pevesdorf‘s brain? A. Yes, sir. Q. Has it led you to believe he has a lesion in the brain? A. Yes, on the right side of the brain. Q. Such a lesion, could it follow the effects of the inhalation of carbon monoxide gas? A. It could.”
DR. WALTER SEIBERT:
“Q. The result of your examination, so far as you have already testified, did they indicate anything to you with reference to Pevesdorf suffering from any brain condition? A. Yes, sir. Q. What did it indicate? A. That there was a wide-spread lesion in the
After describing the effects of carbon monoxide gas has been found to produce in the brain of one overcome by it and exhibiting a section of the brain of a man who died from carbon monoxide exposure Dr. Seibert said:
“It is my opinion that this man (plaintiff) does have changes such as these in his brain.” (Referring to those pointed out in the brain exhibited.) His testimony continued: “Q. Are you able to tell what part of his brain, from the examination that you made, what part of Pevesdorf‘s brain is affected from the carbon monoxide gas? A. Yes, I think there is a wide-spread cortical degeneration. Q. That is a permanent condition? A. Yes, sir. Q. Would such a condition, doctor, produce epilepsy? A. It may.”
DR. JAMES F. MCFADDEN:
“Q. Does hemorrhage of the brain ever follow the effects of inhalation of carbon monoxide gas? A. They are very small hemorrhages to the small blood vessels that supply the brain cells. Q. Those are referred to as petechial hemorrhages? A. Yes, sir. Q. That means that the blood leaves the regular blood stream, penetrates the blood vessels, and runs out in the brain? A. It means it breaks away from the regular stream out to the parts adjoining that blood vessel. . . . Q. Does it ever produce scar tissue? A. Surely it does. Q. Is that an abnormal condition in the brain? A. Yes, sir. Q. Doctor, a person who suffers from scar tissue in the brain, would you say that he suffers from abnormal pressure on the brain? A. He may or may not. Q. That is intercranial pressure? A. Yes, sir. Q. Does this degeneration of nerve cell and nerve nucleus and brain tissue ever cause convulsions? A. It can and it does in some cases. Q. And what is epilepsy? A. The real definition of epilepsy is a long or short period of unconsciousness coming on suddenly and in which we usually see convulsions. Q. Doctor, these abnormal reflexes that you saw in Pevesdorf, in July, that you testified that—I think you did testify that they indicated to you that this patient had definite organic changes within the brain? A. Yes, sir. Q. Such changes as that, definite organic changes within the brain, could that follow from the effects of the inhalation
It was shown by plaintiff‘s mother and brother that when he was brought home in March, 1923, after his alleged gas attack that his face was red and swollen; that he was in a dazed condition; that he had never had such spells before; and that he had many fainting spells thereafter which gradually became more frequent. Dr. McFadden gave as his opinion that from his findings, and from the history of the case stated to him, that in the absence of the knowledge that blows sustained by plaintiff “had caused any brain damage . . . I would feel that that man‘s condition, as I stated in my report, was due to the fact that he had been overcome by carbon monoxide.” He said that an epileptic condition could result from blows upon the head severe enough to cause brain injury, but explained his opinion that the injury to plaintiff‘s brain, which he believed from his examination existed, was caused by carbon monoxide poisoning rather than from any injuries by blows upon the head, as follows:
“Q. Was there anything from the examination that you made that enables you to differentiate between the brain lesion caused by carbon monoxide poisoning and a trauma? A. Yes. Q. What was it? A. It was signs of a diffuse lesion, and in trauma we find focal lesions, lesions in particular parts—that is, isolated; not as diffuse and spread out as these findings.”
He also testified that there was evidence of a spinal cord lesion upon which he also partly based his belief that the gas caused plaintiff‘s condition, as follows:
“Q. Doctor, before you go into this other matter, the result of this vibratory test such as you made and found on January 15, 1930, could you tell from the results obtained whether the lesion to the cord, the spinal cord, was the effect of trauma or carbon monoxide gas? A. This vibratory sense shows definitely to me that there was a lesion in the spinal cord, in the back part, the fibers that go up and carry sensation to the brain. Now, whether it was caused by trauma, if it had been caused by trauma it would have been an entirely different picture. Q. In what way? A. The amount of trauma that would have been sufficient to cause that change would have been caused grave changes in the cord, severe changes and paralysis, what we call myelitis, or inflammation of the cord. Trauma that could pick out that particular fiber pathway. Q. You were satisfied obtained from the vibratory test that the lesions in the cord were not produced by trauma, were you? A. I was satisfied to that effect.”
Defendant‘s testimony showed that the main room of the garage was 152 feet long and sixty-six feet wide with a ceiling thirty-five feet high. At the south end, there was a double door, with a 10x10 opening and two double windows 8x10. At the north end, there were
On behalf of defendant, there was also testimony that plaintiff‘s first fainting spell occurred May 8, 1923. This was stated by Evans, the man plaintiff said took him home after his first attack, and by other men who were at the garage at the time. Their evidence was that plaintiff fainted in the lavatory, which was separated from the garage by fire doors, and not in the part of the garage where the trucks were kept. Their evidence also was to the effect that the weather was warm; that all of the doors were open at the time; and that plaintiff had just returned from a trouble call and had not worked on any trucks before he went into the lavatory. Plaintiff was corroborated as to the time of his first attack by his family physician, Dr. Eyerman, who was called as a witness by defendant. He testified from his records that plaintiff was brought to his office on March 2, 1923, by his father and that he was told at that time that he had been overcome at his work by automobile gas. Dr. Eyerman treated him a number of times in March and April for similar attacks, which he diagnosed as epilepsy, all of which were prior to the time in May which, according to defendant‘s testimony, was the first fainting spell plaintiff had at the garage. Dr. Eyerman also testified that he was informed by plaintiff of the times he had received blows upon the head at the garage, and he attributed plaintiff‘s epilepsy to brain injury caused by these blows.
Defendant had considerable expert medical testimony upon the subject of epilepsy and carbon monoxide gas poisoning. According to this testimony, there was no causal connection between carbon monoxide gas exposure and epilepsy. According to the testimony
Appellant contends that its demurrer to the evidence should have been sustained. It contends both, that the evidence fails to show negligence on the part of defendant in the ventilation of the garage, and also that it fails to show any causal connection between the accumulation of carbon monoxide gas in the garage and plaintiff‘s epileptic condition. As to the first proposition, proof of negligence in ventilation, defendant says there is a failure of proof “(1) that defendant‘s garage was not properly ventilated at the time plaintiff fainted, (2) that the ventilation facilities provided were inadequate, (3) that the doors and windows were not open, and (4) that there was an accumulation of carbon monoxide gas.” We think that plaintiff had sufficient evidence to require submission to the jury of the issue of negligence in providing ventilation. It seems that this matter was rather lost sight of as the trial progressed since by far the greater part of the evidence was directed to the question of causal connection between carbon monoxide gas poisoning and plaintiff‘s subsequent condition, and the controversy over the release. There are not many negligent ventilation cases in the books, except cases of ventilation of mines, where the situation is necessarily much different, the work being underground with little possibility of natural ventila-
In the Pennsylvania Pulverizing Company case, there was much uncontradicted evidence to show that the defendant had with great care and much study of other establishments provided an efficient ventilating system. Here, there was no direct evidence on either side as to what means of ventilation was in common and ordinary use in similar garages, at the time plaintiff claims to have been overcome. Plaintiff did, however, have expert testimony as to the nature of carbon monoxide gas showing that it was likely to remain near the floor unless some current of air causes it to rise and that “it takes force to move it.” Plaintiff also had evidence to the effect that the garage was often smoky from motor exhaust gas and evidence of what elements such exhaust gas contained. It is reasonably inferable from this evidence that there would be carbon monoxide in injurious quantities wherever there was a great amount of this smoky exhaust and that it would be more injurious near the floor. It was shown too, that at least one other employee had been overcome by carbon monoxide gas while working on the floor of the garage. It is also true here, which was not true as to the making of dust commented upon in the Pennsylvania Pulverizing Company case, that part of plaintiff‘s charge was that there was an unnecessary amount of ex-
Plaintiff‘s evidence does not seem substantial enough to show that natural ventilation would be insufficient if properly used, in warm weather when all doors and windows could be opened, that is, that a natural draft could not be created through the windows and doors sufficient to move out or render harmless the exhaust gas. However, ordinary care requires not only sufficient means of ventilation but a sufficient use of such means. There is evidence on the part of plaintiff to show that the windows and doors were not kept open in cold weather, but that when plaintiff would open them they would be closed by others, and that plaintiff complained about it. Plaintiff‘s evidence was that he was overcome early in March, a time of the year when doors could not be kept open at least as frequently as in May, the time fixed by defendant. While defendant‘s evidence was that there was also a suction fan, this was disputed by plaintiff‘s evidence. Of course, even upon defendant‘s theory that open doors would create sufficient ventilation, plaintiff‘s testimony that it was real smoky where he was overcome in the center of the garage while tuning up motors, is some evidence that all doors and windows were not open and, therefore, of insufficient ventilation at that time for the amount of motor exhaust gas emitted. The evidence of other former workmen called by plaintiff as to the usual condition over a considerable period of time (two or three years) when provisions for ventilation and methods of using them apparently were the same as in March, 1923, also shows facts from which, in the absence of positive testimony to the contrary as to conditions on the day plaintiff was overcome and in light of plaintiff‘s testimony as to what they were on that date, it may be reasonably inferred that ordinary care was not being used to ventilate the garage, as well as it should have been, that day and that there was then a dangerous accumulation of carbon monoxide gas. Considering all of this testimony in the light most favorable to plaintiff and drawing all reasonable inferences which might be drawn therefrom, as we must do in passing upon a demurrer to the evidence, we hold that plaintiff‘s evidence was sufficient to justify submission to the jury of the issue of the negligence charged.
Neither do we think that the further contention of defendant upon the demurrer can be sustained, namely: That there was no substantial evidence to show a causal connection between plaintiff‘s epileptic condition and his alleged attack from carbon monoxide gas. While it is true that most of the evidence of plaintiff‘s doctors only amounted to testimony that it was scientifically possible for carbon monoxide to produce such a result (and that was that most of defendant‘s expert testimony disputed) yet Dr. McFadden did state
“The chief value of expert evidence lies in the fact that the witness possesses superior knowledge of the subject under consideration, and by reason of his study, training, and experience he is able to discern and trace the causal connection, if any, between successive events, and can aid the jury in determining whether the claimed injury is the result of the alleged cause or may have a different cause. Certainly the witness should be left free in the exercise of all his faculties in so doing, and should not be told to exclude matters which may be important.”
In this case Dr. McFadden was not limited to the consideration of any one cause and did not arbitrarily himself exclude any possible cause. After stating his opinion that carbon monoxide was the cause he went further and explained why he considered it the cause rather than blows or any other possible cause, namely, a condition of plaintiff‘s brain, as indicated by the reflexes and other symptoms, which he said was more wide-spread than would be caused by blows and could be explained under the known facts only upon the theory of carbon monoxide exposure. Furthermore, Dr. Seibert stated his opinion to be that plaintiff had changes in his brain such as he had found in the brains of known carbon monoxide victims. Of course, it was for the jury to decide whether to believe this testimony or the defendant‘s evidence sharply controverting it. Moreover, if plaintiff‘s evidence was to be believed, there were the additional circumstances of numerous epileptic attacks immediately following plaintiff‘s exposure and collapse in the garage. We hold that there was sufficient evidence of causal connection to warrant the submission of that issue to the jury. [See O‘Leary v. Scullin Steel Co., 303 Mo. 363, 260 S. W. 55; Cropper v. Titanium Pigment Co., 47 F.2d 1038, 78 A. L. R. 737, note 78 A. L. R. 755; 4 Wigmore on Evidence,
Defendant also assigns as error giving plaintiff‘s Instruction No. 3, which was the main instruction covering the case and authorizing a verdict. This instruction first stated that if defendant employed plaintiff in its garage that its duty was “to exercise ordinary care to make and keep said garage reasonably safe as a place of work for plaintiff.” It then hypothesized the facts upon which a recovery by plaintiff was authorized as follows:
“If, therefore, you find from the evidence that the starting and use of said automobiles in said garage caused carbon monoxide gas to be generated and emitted from the exhaust pipes thereof, and that said gas was dangerous and, when accumulated in sufficient quantity would be likely to injure persons therein, and that said gas was produced and emitted there by said automobiles in such quantities that unless dissipated or removed by ventilation, or in some manner, the same would accumulate sufficiently to be harmful and dangerous to employees and that it would be likely to cause employees to be injured, and that defendant knew, or by the exercise of ordinary care would have known thereof, and of the said danger of injury thereby in time, thereafter by the exercise of ordinary care to have remedied said condition so as to cause the said place to be reasonably safe as a place of work and avoided injury to the plaintiff, if you find he was injured; and then if you further find that it was reasonably practicable for defendant to have prevented the accumulation of such gas in such quantities and that by the exercise of ordinary care defendant could and would have done so, and if you further find from the evidence that on or about the 2nd day of March, 1923, the plaintiff, while in said garage and in the discharge of his duties there as an employee of defendant (if you so find), sustained an attack of carbon monoxide gas and was injured thereby, and that said attack and injury was caused by an accumulation therein of said carbon monoxide gas so emitted from said automobiles, and that it had accumulated there at that time in such quantities as to be not reasonably safe to persons therein and so as to be likely to cause them to be injured thereby, as aforesaid, and be dangerous, and if you further find from the evidence that the accumulation of said gas on said occasion and the injury of plaintiff thereby, as aforesaid, directly and proximately resulted from negligence of defendant in failing to exercise ordinary care to have said place reasonably safe, if you so find.”
In addition to this, it required the jury to find that plaintiff did not deliver the release and was not barred by the Statute of Limitations. It is apparent that this instruction loses sight of the specific negligence charged in plaintiff‘s petition, namely, failure to exercise ordinary care to provide and use sufficient means of ventilation to get
The petition charged both failure to provide open outlets to the outside air (open windows and doors?) and failure to maintain such outlets (keep windows and doors open?). It did not charge that there were insufficient windows and doors to prevent an injurious accumulation of gas if they were kept open. It also charged failure to provide “an exhaust fan or other means of ventilation,” but did not allege that the garage could not be ventilated without such fan or other means or that such a fan was a usual, customary or necessary means for ventilation of garages, and of the latter, at least, there was no evidence. The instruction ignores what the petition alleges was negligence and, in substance, only requires the jury to find that the gas from defendant‘s trucks was dangerous “unless dissipated or removed by ventilation or in some manner;” that defendant knew or, should have known of this danger in time “to have remedied said condition” (by ventilation or in some manner?) so as to make the place reasonably safe; that “it was reasonably prac-
Plaintiff says: “The petition charges negligent failure to get ‘stale air and gases’ out of the garage and let fresh air enter in its place. Any means whatever which will accomplish that, in any case, results in ventilation. . . . The words ‘in some manner’ cannot add other means of getting foul air out and fresh air in, because there are no such other means.” The trouble with the instruction is, however, that it does not limit negligence which the jury is authorized to find to insufficient means or insufficient use of means of getting out gas and letting in fresh air. It makes that (ventilation) only one thing to be considered by them and allows them to consider whether gas could be “dissipated or removed by ventilation or in some manner” (defendant suggests use of chemicals to counteract it) and therefore allows them to consider whether such condition could have been remedied or prevented without reference to ventilation. It fails to even use the word “ventilation” after its first reference to removal “by ventilation or in some manner,” but, on the contrary, implies that defendant‘s duty was “to have remedied said condition” to make the place reasonably safe as a place of work (perhaps requiring the men to wear gas masks when the trucks were taken out); and that defendant is liable if “it was reasonably practicable for defendant to have prevented the accumulation of gas in such quantities.” This could have been done by re-
However, aside from its generalities, broadening of the issues and ignoring of defendant‘s evidence and contentions, the instruction is fundamentally wrong because it misconceives the basis of the employer‘s duty in such cases. This duty, hereinabove referred to in ruling the demurrer, is only to provide places of work, methods of doing work, and instrumentalities and appliances for doing work which are reasonably free from danger, and is not to provide the safest, newest, and best equipment, places and methods which have been or might be devised. This is true even under the absolute duty to provide safe equipment imposed by the Federal Boiler Inspection Act. [B. & O. Ry. Co. v. Groeger, 266 U. S. 521, 45 Sup. Ct. 169, 69 L. Ed. 419.] If the employer‘s duty was greater than that, he would be held, not to ordinary care, but to the highest degree of care, if not made an insurer. The test is what is found to be reasonably safe by usage and is commonly and ordinarily used in other similar places, occupations and businesses. The jury were given no such test by this instruction but were left to set up their own standard. The jury should not be “permitted to guess and decide, against the practice of the industry and knowledge of the art, what is a proper or improper ventilating system in the industry.” [Pennsylvania Pulverizing Co. v. Butler, 61 Fed. (2d) 311, and cases cited.] Nor should they be permitted to so guess and decide without being given, as a guide, this rule and test, when the plaintiff is claiming that the failure to use some kind of mechanical ventilation was negligence. The evidence here was that there was a suction fan for ventilation in operation all the time plaintiff was employed up to 1923. Plaintiff disputed this, but it made a jury issue. If defendant had such a fan in operation, even the evidence of plaintiff‘s chemical expert would certainly be insufficient to show negligence in providing ventilation. At most it would only show that there were newer and more efficient means of suction ventilation. There was also, at least, a contested issue as to whether sufficient ventilation could be had by means of open doors or windows or whether some artificial means of creating a draft or suction was required. Natural means
Plaintiff argues that the evidence shows that natural means were insufficient, but we hold that it was, at least, a jury question and that there was no substantial evidence to show that the fan system, defendant claimed to have, was insufficient. In other words, if there was such a fan system in operation at the time, the defendant could not be found guilty of negligence in providing ventilation under this evidence. Even if, as plaintiff also contends, the words “in some manner” only refer to other means of ventilation than natural ventilation, the instruction would still be erroneous because, as pointed out, it leaves the jury without any guide to determine the issue of what means of ventilation the defendant was required to furnish. It would still leave them to find that “to have remedied said condition,” defendant would be required to furnish at least the best kind of ventilating machinery described in the testimony to “have prevented the accumulation of such gas” in injurious quantities, even though there was no evidence that any garage ever used such equipment prior to 1923. It would still be misleading to the jury by seeming to place a duty upon defendant, not merely to use ordinarily sufficient means of ventilation (such as was generally and customarily used), but to provide whatever machinery the jury might think necessary to remedy and prevent the condition. That would practically amount to requiring defendant to make plaintiff‘s place of work absolutely (not reasonably) safe, and thus insure plaintiff‘s safety from such gas.
Since this case must be retried it is necessary to consider the apparently unduly emphasized issue concerning the release and the instructions submitting that issue to the jury. As stated by the trial court in its memorandum overruling the motion for new trial: “Counsel for defendant, however, as well as counsel for plaintiff, in the pleadings and also in the evidence, treated the release as a very important issue in the case; and the manner of finding it in the files, its subsequent mutilation and reconstruction, occupy a large portion of the record in the case. Eminent counsel representing the respec-
“In consideration of being paid by the Union Electric Light and Power Company at the rate of full time from August 5, 1925, until such time as I am able, in the opinion of the Company‘s physician, to return to work and also for the further consideration of medical attendance furnished me by said Company until I am able to go back to work as aforesaid, I hereby release and forever discharge said Union Electric Light and Power Company, 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 arising from any cause whatsoever to the date hereof and especially on account of an accident suffered by me at said Company‘s garage 20th and Locust Streets on August 5, 1925.”
It also states that the consideration is accepted “for the purpose of making a full and final compromise, release, adjustment and settlement in full satisfaction of all demands for all injuries and damages above mentioned.” Plaintiff testified that he signed it before reading it, but then read it over, noticed its general language, rolled it up, threw it into the wastebasket, and said it was no good. Plaintiff admitted he received checks for his full time but did not remember getting them from the claim agent. The claim agent denied that plaintiff threw the release into the wastebasket but said that plaintiff handed it to him and he gave plaintiff the checks, for the time he had lost, at that time. Defendant contends that plaintiff ratified the release by cashing the checks and obtained instructions upon this theory of ratification and complains that plaintiff‘s instructions are erroneous because they overlooked the issue of ratification and therefore conflict with instructions of defendant. We hold that there was, under the evidence, no issue of ratification to submit to
“Where the consideration received for a release is intended as compensation for the injuries sustained, and it subsequently develops that a substantial injury existed which was not known to the parties when the settlement was made and consequently was not taken into account in making it, the release may be avoided on the ground of mutual mistake.” [Richardson v. C., M. & St. P. Railroad Co. (Minn.), 196 N. W. 643; O‘Meara v. Haiden (Cal.), 268 Pac. 334, 60 A. L. R. 1381.]
At any rate, we hold that the question here is release or no release. If there was no release, there can be no issue of ratification because there is nothing to ratify. If there was a release then there might be a question raised as to what it intended to release and, if so, the question of whether the amount received by plaintiff was received for anything except the hand injury would be, at least, a jury question. If it was full valid release then it is good without ratification. There is, therefore, no issue of ratification in this case. This, however, does not mean that we approve plaintiff‘s Instruction No. 5, upon the issue of delivery. It improperly states the law and the facts argumentatively. Upon another trial it should be redrawn so as to state to the jury only the facts which it is necessary for them to find in order to warrant a finding that there was no delivery of the release.
Defendant makes a number of other assignments in regard to refusal of instructions which it requested and concerning the ad-
The judgment is reversed and the cause remanded. Ferguson, C., concurs; Sturgis, C., concurs in result.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.
STATE OF MISSOURI on the Information of ROYLE ELLIS, Prosecuting Attorney of Barry County, at the Relation of CHARLES PATTERSON and CHARLES VAUGHN, Relators, v. DR. L. H. FERGUSON, Mayor of the City of Monett.—65 S. W. (2d) 97.
Division One, October 19, 1933.
A. R. Dunn for relator.