Blair v. Chicago & A. Ry. Co.

• Decision Date: 21 June 1886
• Citation: 1 S.W. 350,89 Mo. 383
• Parties: BLAIR and another v. CHICAGO & A. RY. CO.
• Court: Missouri Supreme Court

1 S.W. 350

89 Mo. 383

BLAIR and another v. CHICAGO & A. RY. CO.

Supreme Court of Missouri.

June 21, 1886.

1. HUSBAND AND WIFE — RELEASE BY WIFE OF CLAIM FOR DAMAGES FOR PERSONAL INJURIES.

Under the statutes of Missouri (section 3296, Married Woman's Act) the wife may, without the consent or joinder of her husband, execute a valid release of all her causes of action growing out of personal injuries sustained by her.

2. EQUITY — CANCELLATION — RELEASE — FRAUD — MISTAKE — RESCISSION.

Equity will decree the cancellation of a release of a claim for damages for personal injuries received by a wife, when it is shown to have been obtained from her by fraud, or through a mistake on her part as to material facts relating to the precise character and extent of the injuries she has received.

3. ACTION OR SUIT — JOINDER OF EQUITABLE AND LEGAL CAUSES OF ACTION.

Under the statutes of Missouri (section 3512, Revision 1879) it is competent to join an equitable and a legal cause of action in the same suit, whenever both arise from the same transaction.

4. SAME — MISJOINDER — DEMURRER — ARREST OF JUDGMENT.

A misjoinder of equitable with legal causes of action can only be taken advantage of by demurrer; never in arrest of judgment, after verdict.

5. CONTINUANCE — ABSENCE OF WITNESSES — DILIGENCE.

It is the duty of a party long before trial to ascertain all material facts within the knowledge of each witness, and a failure to do so is a want of diligence sufficient to defeat his application for continuance on the ground of the absence of a witness.

6. APPEALS — PRESUMPTIONS — CONTINUANCE.

On the hearing of an appeal all presumptions will be in favor of the correctness and regularity of the action of the trial court in refusing a continuance.

Appeal from Jackson circuit court.

Action by husband and wife jointly to recover damages for personal injuries sustained by her while a passenger on board defendant's cars, and at the same time to compel the delivery up and cancellation of a release of such damages executed to defendant by the wife alone, upon the ground that she executed such release in ignorance of material facts as to the real character and extent of her injuries. Decree and judgment for plaintiffs, and appeal from both by defendant.

Lathrop & Smith, for appellant, Chicago & A. Ry. Co. L. H. Waters, for respondents, Mary J. Blair and another.

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 causelessly left standing on a side track. The petition contains two counts, the first seeking to have canceled and held for naught a certain release executed by the wife, as follows:

                                                   "MEXICO, MISSOURI, September 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 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 damages resulting therefrom.

                        [Signed]                                      "Mrs. JOHN BLAIR."
                

The grounds on which the release was sought to be canceled 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; and 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 adviser, and that said physicians were paid for their attendance upon her by said defendant company; and that said physicians, while so attending upon her, assured her that she was not seriously injured or hurt; and that said Mary J. Blair, after such assurances by the said physicians, and utterly ignorant of her rights in the case, and of the extent or character of the injuries she had received as aforesaid, and without sufficient mind or understanding to comprehend or understand the nature or character of said pretended transaction and settlement, said Mary J. Blair took said money, and signed said pretended release. And plaintiffs aver that the only matter considered by the agents of said defendant company, or that in any manner entered into said pretended settlement, was six days' loss of time, at five dollars per day; and that no other matter or thing was considered by any one present at said pretended settlement." The answer to this count was tantamount to a general denial, accompanied by a refusal of the tender of the $30 made by plaintiffs in their petition.

The second count in the petition was an action at law, claiming damages in the sum of $10,000 for the injuries aforesaid. The answer to this count was also a general denial, accompanied by a plea in bar setting up the release. The reply to this was a reiteration of the allegations of the original petition as to the non-binding force of the release.

The petition was filed in January, 1880, and the equity branch of the cause heard at the June term, 1881, when the prayer of the petition was granted, and a decree entered canceling and holding for naught the release, and ordering that plaintiffs deposit with the clerk of the court $30 for the benefit of the defendant. The action of the court on that branch of the cause will first be considered.

1. I have no doubt but that Mrs. Blair had full power to execute in her own name the release in question, or that there was no manner of necessity of joining her husband with her in its execution in order to its validity. My authority for saying so is based on section 3296 of the married woman's act, which is as follows: "Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase, and profits thereof, be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This section shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife: provided, that said personal property shall not be deemed to have been reduced to possession by the husband by use, occupancy, care, or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, in writing, full authority shall have been given by the wife to the husband to sell, incumber, or otherwise dispose of the same for his own use and benefit," etc.

This section, in the clearest possible terms as to the property mentioned in it, makes a feme covert a feme sole, and by reason thereof clothes her with all the incidents of separate ownership, to-wit, the free and unfettered jus disponendi of that property, in whatsoever way she may deem fit; so that even her husband, though she is bone of his bone, and flesh of his flesh, cannot say her nay. More than that, the husband cannot reduce that property into his possession, nor sell, incumber, or otherwise dispose of the same, except by the express assent of the wife manifested in writing, (Rodgers v. Bank, 69 Mo. 560;) the only difference between this statutory separate estate and that cognizable by a court of equity being the restrictive clause just mentioned; for under the rulings of courts of equity the husband might, by the tacit assent of the wife, reduce into his possession, and sell or make his own, her personal property held to her sole use. If the words of the statute do not, by necessary and inevitable implication, confer upon the wife the right of disposing of the property referred to, then the words employed therein, "her separate property, and under her sole control," constitute, so far as any disposition of that is concerned, a mere barren formula, — an empty collocation of meaningless words, a legal solecism in terms, — which in one breath confer sole and separate ownership, and in the next negative one of the most usual functions of ownership, to-wit, the right of disposition; which admit the principal, but forbid the incident; which grant the major premise and the minor premise, but deny the conclusion; which, in short, assert the following anomalous syllogism: every owner of property who has the sole control thereof may dispose of the same. Under section 3296 a...