{ "id": 1447041, "name": "Ozan Lumber Company v. Bishop", "name_abbreviation": "Ozan Lumber Co. v. Bishop", "decision_date": "1942-01-26", "docket_number": "4-6577", "first_page": "625", "last_page": "632", "citations": [ { "type": "official", "cite": "203 Ark. 625" }, { "type": "parallel", "cite": "158 S.W.2d 685" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "32 S. W. 2d 1058", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "182 Ark. 858", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1390024 ], "opinion_index": 1, "case_paths": [ "/ark/182/0858-01" ] }, { "cite": "201 Ark. 988", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725597 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/201/0988-01" ] }, { "cite": "59 S. W. 2d 1021", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "187 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432118 ], "opinion_index": 1, "case_paths": [ "/ark/187/0249-01" ] } ], "analysis": { "cardinality": 718, "char_count": 13387, "ocr_confidence": 0.507, "pagerank": { "raw": 2.4056280309306376e-07, "percentile": 0.7994027837144173 }, "sha256": "b2795efe206e86701bd213f1c6279d44a653c8a58b8f3f8b745f6dd70896e8b0", "simhash": "1:bbb964c82b6432de", "word_count": 2356 }, "last_updated": "2023-07-14T23:00:45.785345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr. Justice Frank Gr. Smith and Mr. Justice Humphreys dissent. Mr. Justice Mehaffy did .not participate in the consideration or determination of this case." ], "parties": [ "Ozan Lumber Company v. Bishop." ], "opinions": [ { "text": "Gtrippin Smith, C. J.\nThe questioned judgment is for $5,000 in .favor of W. Gr. Bishop, who sustained personal injuries when struck by a falling plank March 26, 1940.\nRed Russell, Donnie Brown, and appellee were wrecking \u201cstalls,\u201d or \u201cbins,\u201d preparatory to new construction. Appellee testified that immediately preceding the injury he had been knocking planks from studdings. Russell was at one end of the planks and appellee was at the other end. They began at the top and worked down. Brown \u201ccleaned up\u201d and carried the lumber away, or stacked it, as the carpenters made it available.\nAppellee says he \u201cturned and walked into the hall.\u201d While stooping \u201cto knock some nails out\u201d Russell hallooed, \u201cand the plank hit me like lightning and I went down on my knees.\u201d Russell, he said, knocked the plank loose. Appellee insists he \u201cheard the lick\u201d (presumably referring to Russell\u2019s act in hammering) and was almost immediately struck on the back of the neck. Bishop and Russell, according to the former\u2019s testimony, \u201ccame out of the stall,\u201d then both went back. Appellee stepped in front of Russell, but says he did not know where Russell was just before the plank fell. The planks were 1x6 inches with sufficient space between to permit the workers to climb the bins.\nAt the time of the injury appellee had knocked his end of the plank free from the studding, and it had fallen to the floor, leaving the opposite end attached, the plank resting at an angle.\nAppellee was treated by Dr. Ross once or twice a week for two months, \u2018 \u2018 and then I quit him. \u201d No further medical treatment was administered other than drugs prescribed by Dr. Ross to prevent appellee\u2019s kidneys from acting too freely. No other doctor was engaged until January 28, 1941. At that time appellee\u2019s attorney went with him to see Dr. McGill in Little Rock. McGill made an examination, but no treatment was prescribed. The doctor testified that he found appellee \u201cpartly paralyzed on the left side from an injury to the cord to his neck.\u201d The patient also had diabetes insipidus, a condition which causes the sufferer to pass large quantities of urine, which is mostly water, free from albumen or sugar: \u201cIt is an incurable condition principally caused by a nervous condition and syphilis.\u201d The doctor thought the injury he found could have been produced \u201cby a lick from a plank, which fell and hit him on the neck about the seventh vertebrae. \u2019 \u2019\nDr. D. A. Rhinehart, of Little Rock, who specializes in X-ray work, made pictures of appellee May 14, 1940. The neck and upper part of the back between the shoulders were X-rayed. The result revealed normal conditions. There was no evidence of anything to cause diabetes insipidus.\nDr. Joe F. Shuffield, of Little Bock, an orthopedic or bone surgeon with 18 years of practice, examined appellee twice. The first occasion was May 14, when the patient was brought to him by Dr. Boss. Shuffield had the benefit of X-ray pictures made by. Dr. Bhinehart. Appellee was given a complete physical examination, including urinalysis. The urine was normal. There were no evidences of an injury.\nThe second examination was March 25, 1941. At that time the doctor was given a copy of the complaint appellee had filed, in which various ailments were enumerated:\u2014\u2018 \u2018 I examined him for injuries to his cervical vertebrae and entire spinal cord and ligaments, nerves and muscles of his spinal column, and I found no evidence of any such condition. I examined him for partial paralysis to his entire left side, including- his left arm and leg, and found no evidence of paralysis in his left arm or leg.....I did not find any evidence of diabetes insipidus. The specific gravity of the urine he passed in my office was 1,024. A diabetes patient\u2019s specific gravity generally runs 1,001 to 1,003. I had a blood sugar test made and had the benefit of that report. There was nothing in that report to indicate diabetes insipidus. His blood sugar was 126 milligrams per 100 cc. Normal is 120.\u201d\nBed Bussell testified that appellee attempted to knock a plank loose \u201cfrom the back side.\u201d This witness said: \u201cHe started hammering and I had my back turned. I was climbing the wall. I turned around, and Bishop was hammering on the 2x4 studding just under the nail. I saw the board turn loose and [shouted a warning] . The board came on down and hit him. He had no time to move.\u201d Bussell -further testified that he was working \u201con the second partition away from Bishop! \u2022 I was at the top, about fourteen feet\u2014had climbed to the top and was not doing anything.\u201d When the accident occurred Russell had not gotten to the place where he intended to work, and did not hit the plank.\nDonnie Brown testified: \u201cMr. Bishop was whipping on the bottom of the studding, and [in doing so] it knocked the lumber out of the studding, and the plank came down on his neck. \u2019 \u2019\nConceding that on the question of permanent injury a question was made for the jury\u2014although clearly a preponderance of the evidence appears to be to the contrary\u2014we think appellee\u2019s written statement, made three daj^s after the injury, is conclusive on the question of negligence. In it appellee said: \u201cWe had taken several boards out which had been in the same position, but we could not reach the one which fell on me. We had been pulling on this board with our hands and hammering on the lower end of it, but had been unable to get it off. Mr. Russell said he was going up in the bin. He found that he could not get to the board, and he was just sitting there watching me. \u2022 I had by that time started hammering on a piece of 2 x 4 on the floor-\u2014a part of the old bin we were taking out. This piece of 2 x 4 was nailed to the upright which the piece of 1 x 6 that fell on me was attached to. It was the jarring and shaking of the upright caused by my hammering on it that caused the piece of 1 x 6 to fall on me. ... I have read the above statement, which is correct.\u201d It was signed by Bishop and his wife.\nIt is true appellee testified that he did not read the statement; that a Mr. J ohnson came to his house and said all he wanted was a description of the accident:\u2014\u201cHe drew up that thing without much information from me. \u2019 \u2019 When asked if he talked with J ohnson and attempted to detail to him what the situation was, appellee replied, \u201cPartly so.\u201d Appellee then said, \u201cWe had been- told I \u2022would be taken care of.\u201d\nBishop admitted his signature. The statement, written with a typewriter on ruled paper, is signed in ink. Preceding Bishop\u2019s name are the words: \u201cWith recourse. \u201d \u2022\n\u2022 While appellee denied knowing what was in the writing, or that he read it, he did not say it was untrue. Its . verity is challenged only by appellee\u2019s contradictory testimony.\nBut why, if Bishop did not read the statement, did he take the precaution to write \u201cWith recourse\u201d? He undertakes to explain his conversation with Johnson by saying it was understood he was to be taken care of. As a matter of fact, he was sent to Dr. Ross, the company physician.\nThe credibility to be accorded a witness is ordinarily for the jury. However, no judicial system having justice as its object should permit one who claims he was injured in a particular way to detail in writing just how the accident occurred, and then, when told 'by a physician of his attorney\u2019s choosing months later that he has aii incurable malady of uncertain origin, change the facts to suit new conditions, allowing such claimant, in order to establish liability he had formerly disclaimed, to repudiate a statement made when the facts were fresh in mind\u2014-a statement not obtained through coercion, misrepresentation, duress, or by overreaching. No one reading the original wherein appear the words \u201cWith recourse,\u201d penned in the handwriting of appellee immediately preceding his name, can have the slightest doubt as to its genuineness. Verity of the statement is reinforced 'by appellee\u2019s'testimony, given during the trial, that he did not know where Russell was just before the plank fell.\nAll other evidence supports explanations made in the writing. It must be held, therefore, that the judgment does not rest upon substantial testimony; hence, it must be reversed and the cause dismissed. It is so ordered.\nMr. Justice Frank Gr. Smith and Mr. Justice Humphreys dissent. Mr. Justice Mehaffy did .not participate in the consideration or determination of this case.", "type": "majority", "author": "Gtrippin Smith, C. J." }, { "text": "Smith, J.\n(dissenting). If it were conceded that the verdict is grossly excessive and, for that reason, should be reduced, yet that is not what the majority do. The judgment is not reduced; the cause of action has been dismissed.\nIt is' undisputed that .appellee received an injury for which he should have compensation, if appellant is liable for that injury. Indeed, the majority opinion concedes that the testimony is sufficient to support the finding that the injury is permanent, although it is stated that such a finding would be clearly against the preponderance of the evidence. Needless to say, that is .a question for the jury, and not for us.\nBut the majority, hold that appellee should receive nothing notwithstanding his injury. It does not appear to be seriously questioned that appellee\u2019s own testimony, and other testimony in his behalf, makes a question for the jury as to appellant\u2019s liability for the injury. The decision is put upon the ground that appellee\u2019s written statement shows there was no liability, and it is said that he did not testify that, this written statement was untrue. He may not have denounced it as false, but the purport of his testimony at the trial is that the written statement was false. He certainly did not admit at the trial that the written statement was true. Had he done so, the learned trial judge would, no doubt, have directed the jury to return a verdict against him.\nThe situation presented is not at all unusual. It is one which has occurred in scores and scores of cases, as is reflected in innumerable personal injury opinions rendered by this court. It has never been held that \u00e1 plaintiff whose testimony at the trial established liability for an injury may not recover for the reason merely that he had previously signed a statement from which it appeared that his injury was not occasioned by the master\u2019s negligence. It has always been held competent to contradict the plaintiff by the production of such evidence, just as it is competent to prove any other statement by the plaintiff against his interest.\nIt must be remembered that the writing was not a compromise and settlement of plaintiff\u2019s injury, and was not offered in evidence as such. Its only purpose was to contradict the testimony of the plaintiff given at the trial, for which purpose it was, of course, competent. No consideration was paid plaintiff as compensation, in whole or in part, for his injury, and no contention is made that the writing was in any sense a settlement or release.\nPlaintiff testified, as the majority opinion recites, that the facts stated in the writing were obtained, \u201cpartly so,\u201d from him, and that he signed the writing, as did his wife, who knew nothing, and did not profess to know, anything about the injury, and that he signed the paper without reading it upon the representation that this was necessary for the company to take care of him. This may not have been true, but the truth of this testimony was a question for the jury, and not for us.\nHad this writing been contractual in its nature (but it was not), executed for a consideration, in settlement and release of liability for the injury, it would not have been binding had its execution been procured through fraud or misrepresentation as to its contents and purposes.\nAppellee testified that he signed the paper in a truck, without opportunity to read it, and that on account of the condition of his eyes he could not read it, and under the impression, induced by Johnson, the company\u2019s adjuster, that it was all for the purpose of having the company take care of him. Johnson was not called to contradict this testimony, and it stands undisputed in the record.\nLet it here again be called to mind that the writing was not a release, and even though it were it would not necessarily bar the suit. It was held in the case of Union Compress & Warehouse Co. v. Shaw, 187 Ark. 249, 59 S. W. 2d 1021, that, while one may not avoid the effect of a release by proof that he did not read it when he signed it or know what it contained, he might avoid the release by showing that he was induced to sign by deception practiced upon him,- whether such deception was intentionally fraudulent or not. There are many other cases to the same effect, one of these appearing in the last volume of our printed reports, the case of Harmon v. Harrison, 201 Ark. 988, 147 S. W. 2d 739.\nIn my opinion, the writing did not bar this suit, and was of evidentiary value only to contradict the testimony given by appellee at the trial, and the cause should not be dismissed.\nThe views here expressed accord with the decision of this court in the case of Public Utilities Corp. v. Corden, 182 Ark. 858, 32 S. W. 2d 1058, presenting the same state of facts.\nI am authorized to' say that Justice Humphreys concurs in the views here expressed.", "type": "dissent", "author": "Smith, J." } ], "attorneys": [ "TompJcim & McRae and 8. Hubert Mayes, for appellant.", "G. W. LooJcadoo, for appellee.'" ], "corrections": "", "head_matter": "Ozan Lumber Company v. Bishop.\n4-6577\n158 S. W. 2d 685\nOpinion delivered January 26, 1942.\nTompJcim & McRae and 8. Hubert Mayes, for appellant.\nG. W. LooJcadoo, for appellee.'" }, "file_name": "0625-01", "first_page_order": 643, "last_page_order": 650 }