their power from the same lead from the horn or main. Between the horn and the drill machine on the branch lines involved here was a valve so that if one machine was not ready to run and the other was, the air could be turned on at the large valve in the main line, and off at the valve on the branch line leading to the machine not ready to run, and on at the valve on the branch line leading to the machine ready to run. The rec ord does not disclose how many branch lines might be attached at the horn, but all that concerns this controversy are the two that were attached. These two lines diverged from the horn in the form of an acute angle, one side of which extended to the right and one to the left. At the terminus of the branch line was a nipple to which a hose was attached or detached as became necessary. This hose could be connected with the drill at the terminus of the line. The drills were moved when necessary, and the branch line and hose adjusted accordingly. R. M. Sheppard, of Joplin, and J. P. Mc-er in the operation of a drill. These drills Cammon, of St. Louis, for plaintiff in error. were operated by means of compressed air C. V. Buckley, Norman A. Cox, and Hugh forced from the surface down into the mine Dabbs, all of Joplin, for defendant in error. through a pipe called a main. Near the terminus of the main was a large valve, and BRADLEY, J. On January 31, 1916, plain- just beyond this large valve the main line tiff below, an employé of defendant below, terminated in what is called a "horn," which was working in a lead and zinc mine for is an assembly of connections so that branch defendant in Jasper county, and engaged at air lines or pipes could be attached thereto. the time as helper in the operation of a drill A branch line attached to this horn extenddriven by compressed air pressure. He bot-ed to each separate drill machine. The two tomed his petition upon negligence as fol- branch lines material to this cause received lows: That at the time of his injury he had set up his drill machine, having turned off the air at the valve on the main air line, and stepped over and picked up the end of his branch air line for the purpose of attaching it to his machine; that in the meantime, another servant of defendant operating another drill machine in said mine had negligently and carelessly turned on the air at the valve on the main line and left the same on without warning plaintiff thereof, and had, when disconnecting his machine negligently and carelessly turned the air at the valve on his branch line so that the pressure remained on plaintiff's line and was held only by gravel and small particles of rock and dirt in the end thereof; that when plaintiff picked up his said line for the purpose of attaching it to his machine as aforesaid, the heavy air pressure thereon blew said particles of rock and gravel from the end of said line into plaintiff's face, destroying the sight of plaintiff's eye, and injuring the other eye and inflicting upon his face bruises, scars, and various hurts and injuries. Plaintiff further states that his said injuries were and are a direct result of the negligent and careless failure on the part of defendant to furnish him with a valve with which to shut the air off of said branch line at said machine as aforesaid, and of the negligent and careless direction of plaintiff by defendant through its foreman in charge of said work to use said line without said valve, and of the negligent and careless act of defendant's fellow servant aforesaid in turning and leaving on the air at the main line without warning plaintiff thereof and turning off the air on his branch line. Plaintiff was working under one Haney who had charge of the drill, and it was his duty to obey Haney's orders. The drill at the terminus of the other branch line was about 40 feet from plaintiff's drill. One Webb was the helper to the operator of this second machine. There was a night shift which operated these same machines, and on Saturday night before plaintiff was injured on Monday morning the small valve on the branch line on which plaintiff was working had been practically destroyed by shooting charges of dynamite breaking up the material to be mined. This valve, however, had been out of repair for some two or three days. The fact that this valve was out of repair had been called to the atten tion of the ground boss, but as they had no other one and nothing with which to repair that one, the operator of the machine was directed to get along if he could until a new valve could be had. When a shot was fired, The answer was a general denial, a plea of assumption of risk, act of a fellow servant, and release and satisfaction. The reply was a general denial, and a plea to the effect that the release did not express the contract agreed upon, and that a fraud had been perpetrated upon plaintiff in the execu-earth, gravel, and other débris usually wedg tion of the release. The cause was tried before the court without a jury on June 1, 1917, resulting in a finding for plaintiff in the sum of $6,000, but from this the court deducted $84 mentioned in the release, and $69 which defendant had paid on a doctor bill incurred by plaintiff. After unsuccessful motions for a new trial and in arrest, defendant brings the cause to this court by writ of error. Plaintiff was working underground as help ed into the end of the branch air line pipe which is open when the shot is fired, because before the shot the hose is disconnected and the drill machine moved. Before beginning to operate a machine after a shot, the branch line is "blown out" in this manner: The valve between the terminus and the large valve on the main is opened, and the main then is opened, and this permits the air to extend into the branch line, thus blowing out On ing the release are about as follows: February 4, 1916, Clarence Craig an attorney, with office in Joplin, and who was the representative of the surety company upon whom the draft for $84 was drawn, informed plaintiff's physician (at that time Dr. Chenoweth) that he (Craig) would like to see plaintiff. The doctor so advised plaintiff, and he next day called at Craig's office, and the two went immediately to the office of Dr. Sloan, an eye specialist, whom Craig recommended very highly. The specialist examined the injured eye, and Craig examined it, using in whatever obstruction there might be in it. On the morning of the injury plaintiff was engaged in helping to set the drill at which he worked. The helper at the other drill undertook to blow out these two branch lines, and had opened the valve between the terminus on his line and the large valve on the main, and then turned on the main and blew out his line. He then closed the valve on his branch line, but did not close the valve on the main, and in this condition the entire pressure from the main which went to these two branch lines was thrown into the branch line where plaintiff was working. Al-struments. Plaintiff testified that Dr. Sloan though the valve on this line was broken the line did not blow out because the débris was so tightly wedged therein. Plaintiff did not know that the branch line on which he was working was not blown out, and did not know that the pressure had been left on at the main. In order for the other machine to operate it was necessary to close the air line on which plaintiff was working and, with the valve above mentioned out of repair, this could only be done by attaching the hose, which could be closed, to the nipple. The drill machine where Webb was helper was set and ready, and Webb announced that they were ready, and thereupon Haney directed plaintiff to attach the hose. When he picked up the terminus of the branch line pipe to attach the hose, the débris wedged therein was with great force suddenly blown out into plaintiff's face, resulting in the loss of his right eye. On February 5, 1916, the plaintiff signed the following release: "Know all men by these presents, that I, Oscar Loveless, for the sole consideration of eighty-four and no/100 dollars to me in hand paid by Cunard Mining Company have released and discharged, and by these presents do for my self, my heirs, executors, administrators and assigns release and forever discharge the said Cunard Mining Company of and from all claims. demands, actions, or causes of actions, on account of injuries resulting, or to result, from an accident to myself, which occurred on or about the 31st day of January, 1916, by reason of loss of right eye and of and from all claims or demands whatsoever in law or in equity, which I, my heirs, executors, administrators or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof." At the same time plaintiff received and cashed a draft for $84. Defendant also paid a doctor's bill amounting to $69. This suit was brought without a tender being made except the $84. Other facts relating to the release and necessary to a full understanding of the issues will be mentioned in the course of the opinion. informed him that he would fix him up all right, and that his eye would be as good as ever in two or three weeks. Dr. Sloan and Craig were not positive just what was said. After leaving Dr. Sloan's office, plaintiff and Craig went to Craig's office, and there the the release was signed, plaintiff thinking that the paper he was signing was a receipt for four weeks' wages. The amount of the draft was four weeks' wages. At the time of signing the release the sight of plaintiff's right eye was totally destroyed, and his other injured, and he was not for this reason able to read the paper; and he was also at the time suffering great pain. Dr. Sloan had just treated the eye, and had given some medicine to relieve the pain. Craig admitted that he did not read the instrument to plaintiff, and that he did not give him any copy; admits that at the time the release was signed that he (Craig) knew that plaintiff's eye was out. Craig and also plaintiff say that an additional consideration for the release to that recited therein was that the doctor's bill would be paid. Plaintiff testified, as will be hereafter more fully mentioned, that he understood he was signing a receipt for four weeks' wages for the $84, and the payment of the doctor bill; that he did not know at the time he signed the receipt that his eye was out, and was not aware of this fact for a month or more. When he ascertained that his eye was out he went back to Craig, but Craig refused to entertain the matter, claiming that the whole affair was settled. The authorities relied upon by defendant concerning the release are cases where the party executing the release knew that it was a release that was being executed, and relied upon false and fraudulent representations to avoid the consequences; but in the instant case, if plaintiff is believed (and as to whether he should be was for the trier of facts, and not us), then the instrument does not ex Defendant makes several assignments of press the contract, and that the deception error, but all of consequence are covered by was not in procuring the signing, but in the the one that the court erred in refusing to very vitals of the contract itself, its subject sustain a demurrer except the alleged error and substance; plaintiff believing, according in refusing certain declarations of law. to his version, that he was signing a receipt Learned counsel for defendant contend that for four weeks' wages. The trial court found the release in the circumstances obtaining that the written instrument offered in evi tract, and there was sufficient evidence to support this finding, and by this we are bound. The principle involved in Malkmus v. Cement Co., 150 Mo. App. 446, 131 S. W. 148, so far as the release is concerned, in analogous if not the same as in the instant case. There a complete release of the cause of action (for personal injury) was executed for a nominal sum. Without returning the amount paid, or offering to do so, plaintiff filed suit. Defendant pleaded the release, and plaintiff replying under section 1812, R. S. 1909, pleaded among other things that the release was obtained without his knowledge or consent, through the fraud, deceit, and imposition practiced upon him because of his then mental condition. Disposing of the issue of the receipt the St. Louis Court of Appeals said: "Plaintiff not having tendered or offered to return the $65 to defendant, it is argued that no recovery may be awarded him, for it is said that the law requires as a condition precedent in every instance where one seeks to avoid the consequences of a release that he should first place the other party in statu quo by either paying or offering to pay the amount received thereunder. There can be no doubt of the general proposition of law asserted. The authorities are numerous which support and affirm it. It is sufficient to cite two only which are relied upon: Jarrett v. Morton, 44 Mo. 275: Althoff v. St. Louis Transit Co., 204 Mo. 166, 102 S. W. 642. But the doctrine referred to is without influence here, for according to the case made by plaintiff no release of the cause of action was ever executed. By reference to the authorities cited, which are relied upon by defendant, it will appear that in each instance there involved plaintiff conceded a release of the cause of action had been executed and sought a recovery notwithstanding the fact, for the reason there had been fraud in the inducement or matters collateral to its execution. The matter in judgment here is to be distinguished from that involved in those cases, in that, instead of its consisting of fraud which induced the party to execute a release knowing it to be such, here the case presented is one where a fraudulent practice inhered in the execution of the instrument and plaintiff was deceived through defendant's wrong in executing an instrument, which he did not know to be a release, and without an intention to do so." In the present case plaintiff stated in his reply (and the evidence supports him) that he was ignorant of the contents of the socalled release pleaded by defendant, and was by reason of his then condition unable to read the same, and, as the record shows, relied upon the false representations made to him as to the extent of his injuries, and the character of the instrument he signed in order to avoid the release. ants. With these facts it is not necessary to read between the lines to determine that Craig and Dr. Sloan were "cheek by jowl" with reference to Craig's purpose in bringing plaintiff to the doctor's office. We think the court was justified in holding that the release did not express the real agreement, and was not a bar to recovery. Plaintiff tendered the $84, and that is admitted, but made no tender of the $69 paid to Dr. Sloan, and tendered no interest. If the instrument had expressed the real agreement of the parties there would be no question, but that plaintiff would be required to make the proper tender as a condition precedent to the prosecution of this cause. The cases cited, some of which are Boehm v. American Patriots, 172 Mo. App. 106, 154 S. W. 448; Putman v. Boyer, 173 Mo. App. 398, 158 S. W. 861; Szwed v. Morris Co., 187 Mo. App. 512, 174 S. W. 146; Carroll v. Railroad, 157 Mo. App. 251, 137 S. W. 303, and relied upon by defendant with reference to the failure of the plaintiff to tender the $69, and all interest, are not in point as above pointed out. In these cases it was conceded by the plaintiff that the release or contract expressed the agreement, but that fraudulent and false representations induced the execution; while in the instant case the instrument signed did not express the agreement of the parties according to the finding. Neither do we think that plaintiff under these circumstances was so grossly negligent as to bring him within the rule requiring him to ascertain the contents of an instrument before signing. We hold that it was not necessary for plaintiff in these circumstances to have made a tender of the amount paid to him or for him, as a condition precedent to the prosecution of his cause for damages for the loss of an eye. Malkmus v. Cement Co., supra; Dwyer v. Wabash Railroad Co., 66 Mo. App. 335; Girard v. St. Louis Car Wheel Co., 46 Mo. App. 79; Id., 123 Mo. 358, 27 S. W. 648, 25 L. R. A. 514, 45 Am. St. Rep. 556; Vautrain v. Railroad, S Mo. App. 538 (see Id., 78 Mo. 44); Och v. Railroad, 130 Mo. 27, 31 S. W. 962, 36 L. R. A. 442. The defendant requested and the court refused certain declarations of law relative to certain statements and representations of Dr. Sloan and Craig to plaintiff as to the condition of his eye, and relied upon Carroll v. Railroad, 157 Mo. App. 249, 137 S. W. 303, as authority for the contention that such refusal was reversible error. Craig testified that his primary object was That case points out to find out the extent of the injury, and then the distinction between a representation basmake a settlement; that he had been repre-ed on opinion and the misrepresentation of a senting insurance companies and making set- fact known to exist. Dr. Sloan was not reptlements in that district for about five years, resenting to plaintiff that in his (Sloan's) and averaged handling about 150 claims a opinion that plaintiff's eye would be as good month; and that he usually took a claimant as it ever was; but he was in truth concealto a doctor to find out "how bad he was ing a fact known to then exist, to wit, that hurt," and that Dr. Sloan was one of the plaintiff's eye was then out. We hold that physicians to whom he frequently took claim- the declarations of law were properly re fused, and that there was no error in the wearing an artificial eye; that he was causdeclarations of law given for plaintiff. [1, 2] Defendant contends that its failure to maintain a valve upon the line where plaintiff was working was not the proximate cause of the injury, and that the injury was caused by the act of a fellow servant, and therefore in either case it is not liable. Plaintiff bases his petition upon the failure of defendant to furnish a valve, and upon the act of a fellow servant in turning on the air at the large valve, and upon the act of his foreman in ordering him to connect the hose. In Doss v. Railroad, 135 Mo. App. loc. cit. €50, 116 S. W. 461, it is said: "The true rule to be consulted in determining what is the proximate cause of an injury is to inquire and ascertain whether the injury is the natural and probable consequence of the negligence act; that is, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by a reasonably prudent person, in the exercise of ordinary care, as likely to result from the act complained of." With this rule in mind it would not stretch reason to the breaking point to find that the failure of defendant to furnish a valve on the branch line was the proximate cause of the injury; but it is not necessary to deter mine that the failure to furnish the valve was the proximate cause, as three separate acts of negligence were alleged for either of which defendant would be liable if supported by the evidence. The statute (section 5440, R. S. 1909) abrogates the fellow-servant doctrine in this case. This statute is as follows: "Every person, company or corporation operating a mine or mines in this state producing lead, zinc, coal or other valuable minerals, shall be liable for all damages sustained by any agent or servant thereof while engaged in operating such mine or mines, by reason of the negligence of any other agent or servant thereof: Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury." This statute does not apply, however, to certain work connected with the mine above ground (section 5444, R. S. 1909); but as plaintiff was not above ground, but was down in the mine, it does apply to the character of work in which he was engaged at the time of his injury. We think the trial court properly refused the declarations of law in the nature of a demurrer requested at the close of plaintiff's case and at the close of the whole case. There is not the slightest evidence that plaintiff was negligent, or that he assumed the risk, but these are questions of fact, and have been determined against the defendant. [3] Defendant insists that the judgment is excessive. The net finding was for $5,847. The trial court found for the plaintiff in the sum of $6,000 as above noted, but deducted the amount received by the plaintiff in the $84 draft and the doctor's bill. The evidence disclosed that the eye of plaintiff had to be ed considerable pain and suffering, and underwent the operation of removing the eye. We do not think the judgment excessive. Whelan v. Zinc & Chemical Co., 188 Mo. App. 592, 176 S. W. 704; Jorkiewicz v. American Brake Co., 186 Mo. App. 534, 172 S. W. 441; Sterling v. Parker-Washington Co., 185 Mo. App. 192, 170 S. W. 1156. [4] We find no merit in the point that the court erred in permitting plaintiff to amend the petition after the case had been argued. The cause was tried before the court without a jury, and the amendments were brief interlineations which in no sense changed the cause of action, and perhaps were not necessary at all. In any event defendant was not injured thereby. Finding no error in the record, the judgment of the court below is affirmed. STURGIS, P. J., and FARRINGTON, J., concur in the result, each in a separate opinion. STURGIS, P. J. (concurring). I concur in the result reached in this case and in what is said on the merits of plaintiff's case based on defendant's negligence. I do not concur in holding that the release in plaintiff's cause of action, pleaded by defendant and sought to be avoided for fraud, is void on the ground that plaintiff was tricked into signing a release when he did not know it was a release, but believed it to be a different sort of instrument. The only bearing this has on the case relates to plaintiff's duty to tender back what he received for the release before maintaining a suit on the merits. The law distinguishes between two kinds of fraud or wrongdoing in procuring releases, for either of which the release will be set aside or disregarded as a defense. The one kind relates to fraud or misrepresentation in the inducement leading up to and bringing about the execution of the release, and the other inheres in the execution itself. In the one the party knows the instrument is a release and intends it as such, though he is induced to execute it by fraud, wrongdoing, mutual mistake, or the like; in the other kind the party does not know the instrument signed is a release, and does not intend it to be such, either from lack of mental capacity, or from being tricked or deceived into signing a different kind of an instrument (not merely different in some of its details or provisions) from what he believes he is signing. In the one class the release is only voidable, and must be set aside either in equity or under our statute, and in the other it is void and the law disregards it. So far as setting aside or disregarding a release as a defense is concerned and allowing the plaintiff to try his case on the merits, it makes no difference to which class the a trial on the merits is swept away or adjudged never to have existed. The only difference under the present practice (section 1812, R. S. 1909) is that in those cases where the release was given as a release and is only voidable because induced by fraud or misrepresentations, the consideration paid must be refunded or tendered back before the plaintiff can maintain the action on the merits (Lomax v. Electric Railway, 119 Mo. App. 192, 198, 95 S. W. 945; 24 Ency. Law [2d Ed.] p. 320). It is otherwise where the party is wholly incompetent to contract or the execution of the release was brought about by the person signing the release being tricked or induced to believe he was signing a different kind of an instrument. Under the old practice, before the passage of the statute, now section 1812, R. S. 1909, it was necessary to set aside in equity a release which is only voidable because induced by fraud and to refund the consideration received before bringing the action for damages. Blair v. Chicago & Alton Railroad Company, 89 Mo. 383, 1 S. W. 350; Och v. M., K. & T. Ry. Co., 130 Mo. 27, 41, 31 S. W. 962, 36 L. R. A. 442; 24 Ency. Law (2d Ed.) p. 318. The procedure as to having a voidable release canceled in equity before proceeding on the merits has been changed by statute, but not so as to the necessity of tendering back the consideration. Lomax v. Electric Railway Co., 119 Mo. App. 192, 198, 95 S. W. 945; Althoff v. St. Louis Transit Co., 204 Mo. 166, 171, 102 S. W. 642. the law lays upon him the obligation to restore the other party to his prior condition bethe instrument has placed upon him. However, fore it will relieve him of the burdens which when plaintiff denies entirely the execution of the release and asserts that though he received money from defendant in a transaction of a fendant perpetrated a fraud upon him in the nature which involved no release, and that deexecution of the instrument by obtaining his signature to one of a different character from presented is one disaffirming any contract whatthat contemplated and intended, the question ever as to the release of the cause of action. In cases of this character, the law treats with and disposes of the question on the theory that there no contract in the first instance which it is nechas been no aggregatio mentium, and therefore essary to cancel and set aside as a prerequisite to the right of recovery on the cause of action. If there be no contract of release in the first a condition precedent to either repay or offer instance, of course, plaintiff is not required_as to repay the moneys he acquired in order to obtain the cancellation, for, indeed, there is naught to be canceled." In Dwyer v. Wabash Ry. Co., 66 Mo. App. 335, 341, the court stated the rule thus: "If the plaintiff was induced to sign the reant's agent, or by reason of any undue influence lease through false representations of defendexercised by him, or if at the time the plaintiff was not of contracting mind, he must first have the release set aside, and, until this is done, tion of the action." it stands as a legal bar to the further prosecu And in Chalmers v. United Railways Co., 153 Mo. App. 55, 60, 131 S. W. 903, 904, this is stated: sented by the plaintiff in her reply, no contract "According to the theory of the case as preof release was ever executed by her or with As to the class of releases which are void her knowledge. If this is true, then, of course, because of fraud inhering in their procure-there was no contract to rescind or cancel and no tender of the amount was required. ment and which require no refund of the As we understand the law, a tender of the consideration the court in the Och Case, su- amount received is a prerequisite only in those pra, quoted with approval from George v. cases where plaintiff concedes there has been a Tate, 102 U. S. 564, 26 L. Ed. 232, as follows: for in such circumstances the case presented is release executed and it is sought to be evaded, "It is well settled that the only kind of fraud one for rescission of a contract, and not the permissible to be proved at law in these cases denial of a contract of release in toto." is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper * or obtaining by some other trick or device an instrument which the party did not intend to give." As to the other class of cases where a refund must be tendered, the court said: "If, then, the contract of release was obtained by the fraudulent statements and representations of the physicians of defendant as to the extent of plaintiff's injuries, by which she was induced to execute it, and accept the money in consideration therefor, then the contract was voidable at her will, but that it was absolutely void is a proposition to which we are unable to give our assent." This distinction is clearly expressed in Malkmus v. Cement Co., 150 Mo. App. 446, 454, 131 S. W. 148, 150, as follows: "When one concedes the fact that he has executed a release, though induced to do so by fraudulent representations antecedent to the act of execution, and seeks its cancellation because of fraud in the inducement, he is, of course, required to place the other party in statu quo by either paying or offering to pay the amount received thereunder, but this rule obtains because, by seeking the cancellation of the instrument, he affirms and admits its existence and See, also, Carroll v. United Railways Co., 157 Mo. App. 247, 290, 137 S. W. 303; State ex rel. v. Stuart, 111 Mo. App. 478, 492, 86 S. W. 471. The court required the refund of the consideration of the release in Blair v. Railroad, 89 Mo. 383, 395, 1 S. W. 350, where the facts are quite similar to those here. See, also, North v. Stevenson, 71 Mo. App. 427, 431. [5, 6] The rule is firmly established, therefore, that where a release of plaintiff's cause of action has been executed by him he must, before maintaining a suit on the cause of action released, rescind the settlement and restore the consideration received in cases where, as here, the plaintiff, being capable of contracting, executed the release as such and the fraud for which he seeks a rescission pertains to the inducement which led him to make the release, as for example false representations or fraudulent concealment of facts by defendant and its agents; and plaintiff is excused from refunding such consideration only in those cases where the fraud relied on |
