ARK.] C. H. ATKINSON PAVING CO. v. EDWARDS. 961 C. H. ATKINSON PAVING COMPANY V. EDWARDS. 4-4369 Opinion delivered July 13, 1936. 1. MASTER AND SERVANT--RELEASE.—In an action for personal injuries in which a release from liability was interposed as a defense, evidence that plaintiff, an ignorant negro, who could barely read and write, upon representation of the master's agent that he was receiving a check for wages, signed a blank folded paper on the hood of an automobile, the inadequacy of the consideration, the failure of defendant to call witnesses and other circumstances made the question whether advantage was taken of this negro in getting him to sign the release a question of fact for the jury. 2. MASTER AND SERVANT—RELEASE.—A nominal or grossly inadequate consideration for a release will, in a trial for personal injuries, be given seribus consideration as affecting the question of fraud in its procurement, for there cannot be a release of 'a
962 PAVING CO. v. • EDNIAEOS. [192 Capse of action: for personal injuries, without acts shoWing an intention to release.. „ . • ''Appeal front White Circuit Court; W. D. Davenport, Judge; affirthed. • • ” Culbert L. Pearee; for appellant:' J. H. Moody, Jno. E. Miller and-C1 E. • kinYlinY, for institnte4 this a:Cul:in in' the White; Ciretiit ; Conit ' against the appellant alleging that while, in . .the eniplOy of the appellant,' On August 8; 1935, he Was Ordered by. his fOremari tO'gb . clo T n;into a pit and there tamp Cenient,'which was being POUred into :the . pit. He had'never workedin c'enient befOre, and had nO.knowl. edge of , the reaction catised .frOm . ..'cenient . 'b. dins •; 'that lid Was . forced tb:WOrk in , Said pit, tamiiing the.cethenfwith hiS feet,"one entire. day, While CeMent ` Aira: ' being poured in the 'pit . and UPon him, thatthe 66m'enf i,iOt; On his body, . arms' and . legs; and after a shO're tithe bega:n to biim and cauSed. him to sUffer'great "pa.ui; Said burns caused large blisters, which later became deep and painful .sdres ;. that he suffered"bOth pain and. mental' anguish . for several weeks ; that the• injury was cduSed•by , the negligence, of appellant, and that he suffered 'painful and permanent injury. The appellant filed answer denying all the allegations, arid further ansWered that appellee ,alloWed or suffered some of the concrete , to . get into his boots, causing his legs to blister and become slightly sore; that appellant negotiated a , satisfactOry settlement of its liability to appellee,, and; on ; August • 30, 193.5, paid..appellee $36, taking his . receipt therefor; which sum fully comp ensated appellee • for-all' injuries . and damages .suffered. It also Paid $14,,apPellee'S medical bill ; that appellee .thereupon ekebUted ana -doli'yeted fo appellant a 'written -release, discharging , it froni all clahns and deniands groWing out of said injuries. ,Said.release was filed with the answer and. made apart thereof. • Witnesses to Edward's signature . were D. C. Horton, W. A...Clark and H L: Harris. Ther'e Wa g a jury trial • and.,verdiet auct jurigment. fpr the . appellee in the sum of $3,000..:The easels here on appeal.
ARIC] C.. H. AIINsoN PAVIN"O CO. v. Eriw-krins: 963' • - Appellee's evidenee shewed that . he' , was , in. the employ , of 'the ' appellant ; that he kneW nothing about •eon-crete or cementand that this , was the 'first dayle worked'; that he' . Was . : ordered bY the foreman to get -into 'the ,pit and 'tan* the cement; , and, in obedience to 'the ; orders ; OT, the foreman; he 'did, that ; he' not only did not know any-. thing abont the cement .making blisters : and, soreS,- but. the fOreman tel.& him • nothing -about it; he waSi severely; burned: : It is 'not •contended; however; that theeVidence is; not sufficient 'to showliability,'but it iS earneStly:insiSted that the• Court should'haVe directed 'w Verdict' Tor the ap,-; pellanf , because , the release; signed by the , appellee, Nci 4s a: Settleinent 'Of the clainr, and , 7 disentitled - aPpellee- ,to; recover: • • . .,* The appellee teStified as to, the 'release,. that he tOid; the , fol. -en:tan that he , Was not Aoing to ., signanythi4 and that the , foreMan Said that . that was: all right and that they were . going to . pay hinrfor . two,WeekS Mbre, . and let him . be off for two . weeks moo, apcl. 4L , at 'the.3i,'10tild him $36 and let him be.off tlyo Weeks. Theie.was: , back of thO Oar, wi-itink On' a ,-tyPeNViiter,'.and;theY. handed appellee a papeTand 41 , d f` Sign You.:rriaiile there. !!. They,said it'was foi hirn td
sign his name.. .T4e . paper .. waS folded uP., Ile . Siined it On. the : hood Of , the car ; handed it back to . .Mr.. Horton, and Horton handed if et6:the . insuiance in:* and ,I*19Oked, it and . Said "All ri'ght;,yoti eo 'get' .7. -6ur , ' ca g b at'the' ` ivent . ‘to • . the bank and . go . $3G Mr HoitCri §aid I think ' that is lirettf.gOdd; *hen Yon . are 'going ' ..td get , .5r Oiif job back." . "ApPellee thooht he -V . a.S"ogirii.*'ii: che.a ...., He' did net 'rOad anything,'and' it . WaS not 'rea&td hinr:''WitneSs saicr Qiat he could read arid write a little bit; 'and' could' sign: his haine:" He adinitted . that the liaine was his writing, 'but , he"said 'when e sikired . 'it it was folded . up, and the. paPer :Was .blank, • and; he :just Wrote " Tom Edwards ""- down there; there' waS not •anything; on it; it had , no printed matter; or Edwards did not see any: Witness said he did ri'ot sign, anything:in the'presence • of :Dr: Clark,. 'Mr: Horton 'and H L Harris'. : Whatever -he had no writing • on it; and he thought ! it; Was. the back of tbe check:: .; •
964 C. H. ATKINSON PAVING CO. v. EDWARDS. [192 Dr. Clark testified that the appellee told him. he had settled for $36, and that appellee asked him what he thought about it, and he said he thought it was pretty good, because they usually paid the boys half time. Dr. Clark testified that he had authority to give all the company employees treatment that was necessary, resulting from injuries like this, as long as they needed it. He was present when appellee signed a paper, but did not know whether it was a release or not ; did not know what was said ; standing in the door of bis office, and Mr. Myers and his wife were in the car, and Tom was standing right beside the car, and they asked witness if he would wit-Uess Tom's signature, and he signed it. When asked if he knew how the paper was handled and whether it was folded or not, he said : "I paid no attention to those things. It seems to me the paper bad never been folded. Tom signed it on the fender of tbe car." He did not know what the pa y per was. They merely asked him to witness the signature. Mr. Myers asked witness to sign as a witness. Mr. Myers Was the adjuster who settled the claim. Witness was standing in his office door, and they were out in the street, ten feet away. • Mr. Horton was standing on the sidewalk, and Harris, the negro, was there. Wit7 ness does not remember whether they read anything or not ; they just asked him to witness the signature. Mr. Horton testified that the settlement took place in front of Dr. Clark's office. The release was not folded when it was handed to Tom. Witness does not think the release . was read to him, but he told bim he was signing a release, and appellee kept aSking witness if he was signing his job away, and he told him that he was not, that he was just signing a release so he could not go on and bring suit; did not read the release, but thinks Mr. Myers did. Neither Mr. Myers, the adjuster for the company, nor his wife, nor Harris, who .witnessed the signature, testified. Myers . , having prepared the release, and handed it to the negro, probably knew more about the circumstances than any other person, except his wife ; but, as we have said, neither of these was called to testify. There is very little dispute in the evidence as to what occurred at the time the release was signed. Edwards was an ig-
ARK.] C. H. ATKINSON PAVING CO. V. EDWARDS. 965 norant negro in the emPloy of Horton; he could read a little and sign his name, and he testified positively that he was told where to sign. it ; he thought he was signing a check, and did not know that he was signing a release; No reason is given why Mr. Myers, the adjuster of the company, and his wife were not called as witnesses. They were right at the car. Mrs. Myers was in the car, and the undisputed proof shows that Edwards signed the paper on the fender or hood.of the car. Whether advantage was taken of this negro in getting him to sign- the release, under the circumstances disclosed by the evidence, was a question of faet for the jury. "A nominal or grossly inadequate consideration for a release will be given serious consideration as affecting the question of fraud in its procurement. When due weight is given to other surrounding conditions and there is evidence that the consideration is inadequate, it is a circumstance, which in connection with other circumstances, may be submitted to the jury, and, if grossly inadequate, it alone is sufficient to carry the question of fraud or undue influence to the jury, and where there is inadequacy of consideration, but it is not gross, it may be considered in connection with other evidence on the issue of fraud, but will not, standing alone, justify setting aside a contract or other paper writing on the ground of fraud. And, therefore, on the question of fraud vel non in inducL ing an employee to accept benefits from a relief department in release of the master's liability for negligent injuries, his situation, conduct and surroundings at the time, as well as the amount received, may be considered." 23 R. C. L. 395. Here the negro, who was an ignorant laborer; was Surrounded by the foreman, Dr. Clark, physician of the company, Mr. Myers, the adjuster, and his wife, and the appellee testified very positively as fo what occurred. "There cannot be 'a release of a cause of action for personal injuries without unequivocal 'acts showing• e3c-pressly or by necessary implication, an intention to release. Generally the construction of the release as to the actualintent of the parties presents a question of fact tO be determined from the surrounding conditions and eir-
966 C., H. 'ATkINSON PANINd CO; V. EDWARDS: 1192 cumstances,. construed With' reference : to -the % amount of consideration paid and the th,nguage .of the ireleaseitself.; The amount of. consideration Paid- should have consider, able force in determining -whether the releaSee' was. Simply: paying the releasorfor loSs of time • or sonie other -specifie' elenient of •damage, or 'whether it indicated payment- of ,a, substantial • , sum in • consideration ;of which the, releasee' secured himself against an further.deVelopmerits; and] the-releasor • asstmed, the risk, :thered. ??, 23 L.., 397 ;, Chicago, R. • L . Pi Ry:Va...v:'.111-atthews,485-Ark:,.724; 49 S. NV:' (24392: . . . It is next contended that -the-can't err ed . 'in : 'giving instructions . Nos: , 2 . and • No 2, was . an 'instruction on the' duty 'of the blaster to . ' exereise . reasOnable' . Care to Tur-; nish a 'safe place to : work: This' instruotion haSfbeen proved by this .ceurt: many times, and it directed the , jury, if the; 'appellant ,had, failed to 'exercise , ;Such ; Care ;and , thei appellee was . injUred withoutfault f or 'carelessness 'on hiS, part,' theyi should. find, for the appellee unleSs they further f min& that. 'appellee knoWinglY 'signed the , release:, Insttneti6n No. -5; ObjeCted to' by ppollant; is. strUctien on' the . rdeasUre; 'df- 'dainag e l ' and 'is-a : 'coriect statement' of the ,laW: • '..• • !: ,," • ; • f • 'We 'haVe eXantined'earefully'all . the instrUctiens , and. the:Objectiens' and have reaChed , the 'con'Clu8iori that-the jurywas prolierlY instructed ,. '' , ' f , , ,1! •, • ,' .'It 'is' neXt Contended:.bY appellant that ihe'verdiCt-iS' eXCeSSiVe.: 'In additiOn'to' the 'teStinieny'Of aPpellee; a'S`tV the bUrns ' and the eXtent 'of his suffering, Dr A J Dnnl. klin testified' that : the éXaininatiO'n f appellee' diseleAdf that he had multiple burns, with the result that it scarred • the' tissues yhich . wete invOlVed! ! These ' , Scar dr ,livurns involved the-skin Of the'forearms;bands,.fingers•andlegs; from 'approximately the IdtVer third of the :thigli'downward,' ineluding th'e toes: There was Sortie '80hr tissith f or-, mation in the . left,eye,as-, a 'result • ef 'the burnsi'i.There were •sOme • 46 of' these sears. Dr. •Thinklin 'testified ithat he-had treated , abOut 100 caseS:and some' of , theSe : aTOO are-not well after a 'period: off five or six: menths.,' there 'was some question about-tlie healing of 'these .hreas,: but' CertainlY • his , 'sears, ore. permanent. , . .He 'thinks' , that
967 aPpellee still suffers . pain and: discomfort., ; That his abil:- .itt • to'vo -W , asa 'comnion'labo'rer has'been dithihished; WO' he ha's . ulcerating areas dh 'hiS''right 'hand and'in' the .space between,.,*fourth and fift4 tOeS on:The right foot ; that he-i,had,;ulcerating.:areas:: on three .portions of his anatomy that , are not, 'well yet • That he had lost : the ;end jo int f hi right 'indek finger • by 'amputation,' and that baCk''Of this . ,'Mtb .̀ 40 .h.a.a.,..; deep'UlCer,:eXtending'4i-.6und The finger , fyo- --••• Dr. 'Clark : Testified that he 'had'had ;some • eXperience, not 'a . kreat"deal,',in' treating' 'C'eihent 'burnS; arid he' -does 'a'ny'thing P e ' rifinent'in'aPP' ellee 's '6,se - juStlike any. other burn ; Jot.of ;surf ace. involved, ,but after a few' days it will heal, except in spots ;• a &Mcrae' burn is mighty „slow, to heal ;, more .so Than , an. •:)rdillary" burn ; he teStified That 'he 'di'd not knoW' Whether the injnry:tO :the finger, the joint of which was amputated,' . Was 'from-the' burn -Or i IM'f; : lie' 'Could: have kottefi it hurt 'and infection set; in ;s. he 'does' not think that thel5rognosiS is ' ' . as 'S'evere as Dr. Dunklin gives it ; he •hink§ the; appelleeis Perfectly well sa far aS the burns': are concerned...; . ! The , evidende e sh'OWS 'that bUrn'S' Of the' chhraCtei feted ; by -aPpellee are . radre : 'severe than ordinary biiins, and ' 'aPtiellee 'liecessaialf suffered great pain becaUSe of the 'bilrfiS, ''All. , questiOns 'of fad Were prePerlY'SUbinitted to' the' jury, and: the 'jtrY • pasS'eS . 'on 'i4p. : ctoibiiity'oT , the WitneSses : and:the; Weight of their teStimony. ';" • , • Wd find.no error and the jud o nient iS affirnied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.