1 S.W. 350 (Mo. 1886), Blair v. Chicago & Alton Railroad Co.

Citation:1 S.W. 350, 89 Mo. 383
Opinion Judge:Sherwood, J.
Party Name:Blair et al. v. Chicago & Alton Railroad Company, Appellant
Attorney:Lathrop & Smith for appellant. Edwards & Ramsey and L. H. Waters for respondent.
Case Date:June 21, 1886
Court:Supreme Court of Missouri

Page 350

1 S.W. 350 (Mo. 1886)

89 Mo. 383

Blair et al.


Chicago & Alton Railroad Company, Appellant

Supreme Court of Missouri

June 21, 1886

Appeal from Jackson Circuit Court. -- Hon. F. M. Black Judge.


Lathrop & Smith for appellant.

(1) The court erred in setting aside the release. The right of action for the injuries received was Mrs. Blair's separate property. Being her separate property she had the jus disponendi the same as though she were sole, and hence it was unnecessary for her husband to join in the release. He is obliged to be joined in a suit simply to conform to the requirements of the statute. Aside from the presumption of sanity which the law makes, it appeared from the clear preponderance of the evidence that she was perfectly compos mentis at the time she signed the release; no fraud being shown, the inadequacy of the consideration could not be urged; and, consequently, the release ought to have been allowed to stand. Subsequent insanity, even if proved, is no ground for setting the release aside. R. S. 1879, p. 560, sec. 3296; Railroad Co. v. Dunn, 52 Ill. 260; Flori v. St. Louis, 3 Mo.App. 231, 240; Alt v. Meyer, 8 Mo.App. 198; Story's Eq. Jur. [12 Ed.] secs. 1388, 1393; 1 White & Tudor's Leading Cases in Eq. [4 Am. Ed.] pt. 2, pp. 685-88; Siemers v. Kleeburg, 56 Mo. 196, 200; DeBaum v. Van Wagoner, 56 Mo. 347; Chitty on Contracts [11 Ed.] 186, 191. (2) The motion for a continuance should have been granted, and the Supreme Court will interfere where the discretion of the lower court on the matter has been improperly exercised. Leabo v. Goode, 67 Mo. 126. (3) The objection to the testimony of Dr. Dunn, and of the other physicians whose depositions were read to the jury, ought to have been sustained. The plaintiff had no right to waive the protection of the statute. The express right to waive accorded in the case of attorney and client, is the clearest possible legislative expression that the right was excluded in every other case. Expressio unius est exclusio alterius. 1 R. S. 1879, p. 690, sec. 4017; Wilson v. Rastall, 4 Durn. & E. 760; Johnson v. Johnson, 4 Paige Ch. 460, 468; Grattan v. Insurance Co., 80 N.Y. 281, 300; Briggs v. Briggs, 20 Mich. 34; Mutual Benefit Association v. Beck, 77 Ind. 203; Railroad Co. v. Raymond, 13 Am. & Eng. R. R. Cases, 6; Harriman v. Stowe, 57 Mo. 93; Gartside v. Conn. Mut. Life Ins. Co., 76 Mo. 446; Broom's Legal Maxims, *505, 517, [8 Ed.] *664, 666; Dwarris on Statutes, 605. (4) The demurrer submitted at the close of plaintiffs' evidence, and again at the end of the case, should have been sustained. In the judgment setting aside the release it was ordered that plaintiffs deposit with the clerk of the court, for the use and benefit of defendant, the sum of thirty dollars, paid as the consideration therefor. That deposit plaintiffs should have made before proceeding to trial upon the merits. To show that it was made was part of plaintiffs' case, and a failure to make that showing is an error which their verdict does not cure. Williams v. Ketchum, 21 Wis. 432; Coolidge v. Brigham, 1 Metc. 547; Estabrook v. Swett, 116 Mass. 303; Emerson v. McNamara, 41 Me. 565; Evans v. Gale, 21 N.H. 240; Cook v. Gilman, 34 N.H. 556. (5) Instruction number ten, asked by the defendant, should have been given. 1 Chitty's Pleading [6 Am. Ed.] 440; Dickinson v. Boyle, 17 Pick. 78; Squier v. Gould, 17 Wend. 159. (6) Plaintiffs' third instruction is particularly objectionable, as it tells the jury in estimating the damages to take into consideration Mrs. Blair's age and situation. Nothing is said in the petition about her situation, whatever the term may mean, and if it meant her situation in a business point of view, which would be the only situation entitling her to damages, the instruction was erroneous under the pleadings. (7) The first count of the petition did not state facts sufficient to constitute a cause of action against defendant in equity. The plaintiffs had an adequate remedy at law to set the release aside under the facts alleged in the first count. The mere statement that plaintiff was fraudulently induced to execute the release, without stating the facts constituting the fraud, will not confer jurisdiction upon a court of equity. By the course pursued, defendant was deprived of its constitutional right to have the validity of the release submitted to a jury. Bliss on Code Pleading, sec. 211; Railroad Co. v. Welch, 52 Ill. 183; Bussian v. Railway Co., 56 Wis. 325, 333; Railroad Co. v. Shay, 82 Pa. St. 198; Archer v. Railroad Co., 102 Ill. 493.

Edwards & Ramsey and L. H. Waters for respondent.

(1) The court properly overruled defendant's motion for a continuance. State v. Fox, 79 Mo. 109; R. S. 1879, sec. 3595; State v. Lange, 59 Mo. 418. There was no pretence of diligence on defendant's part. Wood v. Railroad, 58 Mo. 109; Barber v. Patchin, 56 Mo. 241. (2) The court committed no error in allowing nonmedical attendants to testify to expressions of Mrs. Blair as to her condition. The usual expressions of bodily or mental pain made at the time are original evidence. 1 Greenl. on Evid., sec. 102; Brown v. Railroad, 66 Mo. 599; Gray v. McLaughlin, 26 Ia. 279. Proof that the injured party complained all the time, since the injury, is admissible. Brown v. Railroad, 32 N.Y. 597; Matteson v. Railroad, 35 N.Y. 487; Quaife v. Railroad, 48 Wis. 513; Railroad v. Call, 53 Pa. St. 402; King v. Foster, 6 Cav. & P. 325; Towle v. Blake, 48 N.H. 92. (3) The plaintiff had a right to waive the protection of the statute, and to call upon her physicians to testify as to her injuries, and their effects or consequents. Railroad v. Martin, 41 Mich. 742; Frazer v. Jennison, 42 Mich. 206; Grattan v. Ins. Co., 80 N.Y. 281; Johnson v. Johnson, 14 Wend. 637; Pierson v. People, 79 N.Y. 424; Lenz v. Ins. Co., 8 Mo.App. 363. In Gartside v. Insurance Company, 76 Mo. 446, the only question before the court, or passed upon, was whether the statute embraced such information as the physician acquired "by signs or observation." The physicians were called to testify against the interests of their patients in that case, and it was held they could not testify as to any information. (4) The court did not err in refusing to sustain the demurrer to the evidence because plaintiffs failed to prove that they had paid into court the thirty dollars ordered by the decree cancelling the release. (5) The court properly refused defendant's tenth instruction. Mrs. Blair was in that delicate situation in which "women who love their lords delight to be."


[89 Mo. 388] Sherwood, J.

Action for personal injuries suffered by Mrs. Blair in consequence of the car, on which she was a passenger, colliding with another car of defendant, carelessly left standing on a side track.

The petition contains two counts, the first seeking to have cancelled and held for naught a certain release executed by the wife, as follows:

"Mexico, Mo., Sept. 24, 1879.

"Received of the Chicago & Alton Railroad company the sum of thirty dollars, in full settlement and satisfaction for all damages by me sustained by

Page 351

reason of personal injuries, loss of time, and expense, and every other damage resulting from the accident at Larabee, on the night of September 23, 1879; and in consideration thereof I hereby release said company from all liability on account of such accident and damage resulting therefrom.

"[Signed.] Mrs. John Blair."

The grounds on which the release were sought to be [89 Mo. 389] cancelled were, that Mrs. Blair was fraudulently induced to execute the release; that her mind was in such condition at the time of its execution, owing to the injuries received and the medicines given her, immediately after reception of the injuries, as not to be in condition to understand her rights, nor the nature and effect of the transaction; that her husband was not present and did not join in the release.

Afterwards, when the evidence was introduced and closed, and the arguments of counsel heard, the court permitted the following amendment to be made to the petition: "And plaintiffs aver that the physicians in the employ of the defendant company were sent by said company, and did attend upon and care for said Mary J. Blair, and became her attendant physicians and medical advisers, and that said physicians were paid for their attendance upon her by said defendant...

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