Winter Park Telephone Co. v. Strong , 130 Fla. 755 ( 1937 )

On petition for rehearing it is contended that the Court overlooked and failed to consider the evidence adduced failed to sustain the issues. It was alleged in the first three counts of the declaration that the high voltage of electricity was permitted to run into and charge the telephone wires which plaintiff was engaged in repairing. The plaintiff testified that he was working on the telephone wire and while so doing was knocked unconscious. "The last I remember it had me gripped to it — drawn up to it. I probably would have burned to death if I had not fallen from the pole." The evidence disclosed four ways in which the high voltage of electricity could reach the telephone wires: (a) defectively constructed appliances by placing the telephone wires in close proximity with electric wires; (b) contact of telephone wires and high voltage wires at some distance from the poles; (c) wet moss suspended from the live wire downward and contacting the telephone wire; (d) high tension wire feeding the arc within 2 1/2 inches of the telephone wire. The plaintiff received an electric shock while on the pole and fell therefrom. It seems that these facts present a jury question. See Cameron Barkley Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814; and Florida Telephone Co., et al., v. Wallace,104 Fla. 566, 140 So. 472.

It is contended further that a question of a reasonably safe place in which to work has no bearings upon the issue here involved. This contention is without merit. See Kirkland v. City of Gainesville, 122 Fla. 765, 166 So. 460; Stearns Culvert Lbr. Co. v. Fowler, 58 Fla. 362, 50 So. 680.

It is contended that error was committed in holding that the release and settlement signed by the plaintiff in the cause was a jury question. The evidence showed that the plaintiff was injured on the 17th day of February, 1934, and was in the hospital for some few weeks. The testimony developed the skull of the plaintiff was broken or fractured in some three or four different places; one of his limbs was broken and his nervous system impaired, and while at home on April 18, 1934, he was summoned by phone to defendant's office to confer with a representative of the Insurance Company. The record shows that Dr. McGugan testified as follows:

"Q. From an examination of that X-ray seeing the fracture of the sphenoid and parietal bones and these other bones, would you state in your opinion whether or not that would affect the brain in any way?

"A. In my opinion, the brain would be affected by the injury to the bones, and also by the force applied to produce the fracture.

"Q. How, in your opinion, would that affect the brain?

"A. Ordinarily, we find the brain bruised, the connections of the nerve cells and fibers torn apart, and usually more or less bleeding from blood vessels also torn at that time."

Plaintiff, convalescing from four skull fractures, brain bruised, the connection of the nerve cells and fibers torn apart, with more or less bleeding from ruptured blood vessels, suffering from a broken limb, and with impaired nerves, called to confer with an Insurance Adjuster concerning his injuries. Whether or not a release signed by plaintiff under these conditions was done in a normal way is a jury question. See Florida Power Light Co. v. Horn, 100 Fla. 1339, 131 So. 219; Douglas v. Ogle, 80 Fla. 42,85 So. 243.

Witness A.E. Williams testified to observing plaintiff's condition shortly after the injury, viz.:

"Q. Now you say you had an opportunity to observe his mental condition; how would you describe his mental condition the best you can.

"A. In talking to him he tells you the same thing over and over, and stuff like that.

"Q. What else? Tell the best you can and as fully as you can everything you had an opportunity to observe about his mental state; whether he acted normal or abnormal, or what not?

"A. Well, I just don't think he is normal, that's all.

"Q. In what way wasn't he normal?

"A. Just the way he talks.

"Q. How did he talk?

"A. I just got through telling you. He would tell the same thing over and over and over all the time.

"Q. What did he tell you over and over?

"A. Different things about the way he got hurt before.

"Q. How many times would he tell it to you over and over?

"A. A dozen or more times a day.

"Q. Wouldn't he talk coherently about various other topics you might bring up and discuss with him?

"A. A few minutes. Then he would go right back on this.

"Q. Of telling you how this accident happened?

"A. Yes.

"Q. Would you say he talked and acted like a perfectly sane man?

"A. Yes, some.

"Q. What do you mean by that?

"A. Well, he just was off.

"Q. What do you mean by `just off'?

"A. He just don't talk right, like anybody human to me, like he had good sense."

This testimony is corroborated by the witnesses, W.S. Robinson, J.I. Stover and James T. Buttery. The covenant not to sue is dated April 18, 1934. At the same time the release and settlement in full was signed. The record shows that he was in the office of the defendant company and the covenant not to sue had been prepared and was awaiting his signature. Plaintiff was approached by the secretary of the defendant, Mrs. Lewis, who placed a fountain pen in plaintiff's hand and placed the covenant not to sue under his hand and then told him that Mr. Galloway, president of the defendant company, had said for him (plaintiff) to sign it orelse. It is reasonable to assume that the phrase "to sign it or else" meant either to sign the covenant not to sue or plaintiff's services would no longer be needed and that he would lose his job. Plaintiff at the time was in the physical condition, supra.

In the case of Florida East Coast R.R. Co. v. Thompson, 93 Fla. 30, text 38-39, 111 So. 525, the question of whether or not fraud existed in the obtaining of an instrument is a question of fact to be settled by a jury, and said:

"Whether or not fraud has been shown to exist in a given case, is, as a general rule, a question of fact for the jury. 23 R.C.L. (49). But since honesty, not fraud, is presumed, neither courts nor juries may suppose the existence of fraud where the facts established by the manifest weight and probative force of the evidence may be fairly and reasonably reconciled with honesty and pure dealing. Although the positive testimony of one witness (the releasor) as to the existence of fraud, is sufficient to require the case to be submitted to the jury (Gordon v. Great A. P. Co., 90 Atl. Rep. 78; Clayton v. Consolidated Traction Co., 54 Atl. Rep. 332), it does not necessarily follow that such testimony will be sufficient in all cases to sustain a finding of fraud. Bessey v. Minneapolis, etc., Ry. Co., 141 N.W. Rep. 244; Railroad Co. v. Shay, 82 Pac. St. Rep. 198; DeDouglas v. Union Traction Co., 48 Atl. Rep. 262; Valley v. Boston Maine R. Co.,68 Atl. Rep. 635, and other cases hereinafter cited * * *"

The original opinion of this Court is adhered to and reaffirmed, except as to the amount of the said judgment, which from a consideration of the entire record, seems to be excessive. If the plaintiff remits the sum of $5,000.00, as of the date of the final judgment, the said judgment will be affirmed for the amount of $13,750.00, as of the date hereof, otherwise the judgment will be reversed for a new trial.

WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.

ELLIS, C.J., and TERRELL, J., dissent.