Strode v. St. Louis Transit Co.
Decision Date | 20 June 1906 |
Citation | 197 Mo. 616,95 S.W. 851 |
Parties | STRODE v. ST. LOUIS TRANSIT CO. |
Court | Missouri Supreme Court |
An employé, while driving a wagon for his employer, collided with a street car. The employé and employer executed a release of their claims against the street railroad in consideration of a specified sum which was paid to the employer. Held, that the release of the employé was supported by a sufficient consideration and was binding on him in the absence of fraud, inadvertence, or mistake.
3. DEATH — ACTIONS FOR — SETTLEMENT BY DECEDENT — EFFECT.
An action by minor children for the death their father, whether under Damage Act, § 2 (Rev. St. 1899, § 2864), providing for an action when a person shall die from an injury resulting from the negligence of any servant, while running a car, etc., or under section 3 (Rev. St. 1899, § 2865), providing that when the death of a person shall be caused by a wrongful act, that would, if death had not ensued, have entitled the party injured to maintain an action therefor, the person liable for the death shall be liable in an action for damages, notwithstanding the death is barred by the father, before his death, making a settlement with the wrongdoer.
In Banc. Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.
Action by Gerrard Strode, curator of the minor children of John D. Dill, deceased, against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Cause transferred to court in banc, and the divisional opinion withdrawn. Reversed and remanded.
Boyle & Priest and Edward T. Miller, for appellant. Gerald Griffin and A. R. Taylor, for respondent.
The facts of this controversy are so fairly stated by Valliant, J., in the opinion filed in Division 1 (Mo. Sup.) 87 S. W. 976, that we adopt the same, which is as follows:
1. The instruction criticised and referred to above, as well as in the motion for new trial, which was sustained by the trial court, is in this language: "If the jury believe from the evidence that at the time of the accident detailed in the evidence, John Dill was suffering from phthisis pulmonalis, or consumption, and that he died from such disease, and that whatever injuries he received in said accident only hastened his death and were not the cause of the same, the plaintiff is not entitled to recover, and your verdict must be for the defendant; and that this is true without regard to whether or not the defendant was negligent at the time of said accident." This instruction was clearly wrong and should not have been given. A similar instruction has been expressly disapproved by this court. Fetter v. Fidelty & Casualty Co., 174 Mo. 256, 73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560. In granting a new trial upon this point the trial court was right, and were it not for other propositions its judgment should be affirmed.
2. The defendant pleaded and proved a written release, signed and given by deceased, John Dill, in his lifetime. This release was in the following words: The evidence fails to disclose that this release was either without consideration, or that it was signed by inadvertance, fraud, or mistake as pleaded in the reply. On the other hand, the evidence, which is undisputed, clearly shows that the defendant company, through its agent, refused to pay the $37.50 unless the deceased, Dill, would sign the release, and that the same was read by him and fully discussed in his presence by both the agent and his employer. The evidence further showed that although he was claiming some injury to the back, he signed the release, even after his employer had advised him that he would thereby lose his right of action against the defendant, and after his employer had first refused to sign it for that reason. It is true that the $37.50 went to the Walton-Knost Express Company and not to Dill, and it is...
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Strottman v. St. Louis, I. M. & S. Ry. Co.
... ... It simply transmitted one that already existed at common law. Strode v. Transit Co., 97 Mo., loc. cit. 625 et seq., 95 S. W. 851, and cases cited. It may not be amiss to recur to the reason underlying the assault ... ...
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Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007)
... ... In Strode v. St. Louis Transit Co., 95 S.W. 851 (Mo. 1906), the deceased driver was driving a wagon that ... ...
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Smith v. Brown & Williamson Tobacco Corp.
... ... In Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S.W. 851 (1906), the deceased driver was driving a wagon ... ...
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Smith v. Brown & Williamson Tobacco Corporation, No. WD65542 (Mo. App. 9/2/2008)
... ... In Strode v. St. Louis Transit Co., 95 S.W. 851 (Mo. 1906) , the deceased driver was driving a wagon that ... ...