Alabama & V. Ry. Co. v. Kropp

Decision Date26 June 1922
Docket Number22673
Citation92 So. 691,129 Miss. 616
PartiesALABAMA & V. RY. CO. v. KROPP
CourtMississippi Supreme Court

1 EVIDENCE. Written release of railroad company from liability cannot be varied by oral evidence to show contemporaneous oral agreement. Where a person injured by a railroad company executed a written release, after full time for consideration, consultation, and investigation, for a valuable consideration, the release being contractual in its recitals, it cannot be varied, contradicted, or added to by oral evidence to show a contemporaneous oral agreement to give the party injured a life job in the service of the company. English v. N. O. & N.E. R. Co., 100 Miss 575, 56 So. 665, cited.

2 RELEASE. Held that servant could not impeach written release from liability for personal injuries on ground of fraud in procurement.

Where a person injured by a railroad has full time to learn the law and facts of his injury and executes a written release contractual in its recitals as to consideration, he cannot impeach the written contract for fraud in its procurement by showing the agent of the railroad company stated that the law forbade inserting in a release an agreement to give such person a life job with the railroad, or that the company was not liable for the injury, where there was no confidential or fiduciary relation between the parties, and where each was dealing with the other at arm's length.

3. RELEASE. Where injured servant seeks to rescind release executed for fraud, proof must be clear and convincing.

Where a person injured by a railroad executes a release for a valuable consideration and seeks to rescind for fraud in the procurement of a release, the proof of fraud must be clear and convincing, and where the proof of fraud is contradicted by disinterested witnesses and also by the circumstances of the case, the sole testimony of the injured party given several years after the contract will not satisfy the rule.

4 Release. Party induced to enter contract by fraudulent representations must rescind promptly and return fruits of contract; facts held to show ratification.

Where a party has been induced to enter a contract by fraudulent representations, he may, upon discovering the fraud, rescind but he must act promptly upon discovering the facts, and must use reasonable diligence to learn the facts, and, if he retain the fruits of the contract after such knowledge or fails to exercise reasonable diligence under the circumstances, he will be held to have ratified the contract. The facts in this case show ratification under this rule.

HON. G. C. TANN, Chancellor.

APPEAL from chancery court of Lauderdale county, HON. G. C. TANN, Chancellor.

Action by Lee Kropp, against the Alabama & Vicksburg Railway Company. Verdict for plaintiff, and the defendant appeals. Reversed and dismissed.

Reversed and dismissed.

Bozeman & Cameron, for appellant.

The court below erred in overruling the motion of defendant, as shown by the special bill of exceptions (page 201) to exclude the testimony of the plaintiff as to the promise of future employment made to him before the execution of the release because the effect of such testimony was to vary the terms of a written contract by parole testimony and its further effect was to add to a written agreement by parole testimony and because such testimony was otherwise incompetent and irrelevant.

The testimony shows a total absence of any attendant facts or circumstances which ordinarily accompany fraudulent procurements of releases from injured persons. The injured person in this case was not ignorant, was not suffering, was not under the influence of opiates or drugs, was not in poverty or distress, was not without time to deliberate, was not without access to friends and lawyers, and was not hurried or pressed to make a settlement. There is absolutely nothing in this case tending in any way to establish a fraudulent procurement of a release, except the uncorroborated testimony of the plaintiff himself, which is contradicted by every other witness and by every attendant circumstance.

No statement was made with Kropp and no release was taken from him until more than nine months after the accident and injury. According to Kropp's testimony, he had been able to go back to work in one month after his accident. He had every opportunity to consult with friends and lawyers as to liability and as to his rights in the premises. He had talked the matter over with his wife and others, and although he testifies that he had never advised with an attorney about it, it does appear that at least one attorney came to Kropp to get the case, but without success.

Kropp's charge that Robertson, defendant's claim agent, fraudulently induced him to sign the release by promising him life-time employment is not only flatly denied by Robertson and by Payen and by Brooke, but is utterly inconsistent with the course of dealings between Kropp and the claim agents of the defendant railroad, and negotiations which led up to the execution of the release.

Kropp's uncorroborated testimony as to what was said in that personal interview leading up to the execution of the release, rendered his solemn written contract signed by himself in the presence of two witnesses and acquiesced in by him for nearly six years, no more binding in the eyes of a jury than a chain of daisies woven by playing children. Pity it is, but 'tis true, that average Mississippi juries of today have no more regard for solemn written contracts, signed and witnessed, and acquiesced in for years, when they are given the right to avoid them, than vamping Rose of song fame, had for Heart: "She don't care for a heart, she just tears it apart."

The uncorroborated statement of Kropp that he was promised employment for life as an inducement for him to execute the release is not only positively denied by Robertson, who is alleged to have made the promise, and by Brooke, his stenographer who wrote the release and closed the matter with Kropp the day after his interview with Robertson, and by Jackson, who also witnessed Kropp's signature, but it is utterly inconsistent with the negotiations and correspondence leading up to the execution of the release.

In support of our contention that this suit cannot be maintained because of Kropp's failure to refund the one hundred and twenty-five dollars paid him, we cite the case of Harrison v. Alabama Midland Ry. Co., 40 So. 394. We cite, also, the case of Smith v. St. L. & S. R. R. Co., 112 Miss. 878.

As in the Smith case, 112 Miss., so in this case the release is, at most, voidable only and not void, and before any rescission thereof can be obtained, the consideration received under the terms of said release must first be returned. Parker v. Northern Pacific Ry. Co., 65 F. 460, Vandevelden v. Ry. Co., 61 F. 54 (59); Babcock v. Farwell, 245 Ill. 14 (40); Rabbittee v. A. G. S. R. R. Co., 47 So. 573; Wells v. Royer Wheel Co., 114 S.W. 737.

In support of our contention that the testimony in this case shows that the release was ratified by Kropp and that he is now precluded from maintaining this suit, we cite the following: A. & V. Ry. Co. v. Turnbull, 71 Miss. 1039, Jones v. Railway Co., 72 Miss. 22; Turnbull case, 71 Miss. 1039;Taylor v. Blackman, 12 S. R. 458.

We submit that as a matter of law the testimony in this case to the effect that the release in question was procured by fraud is neither clear nor convincing nor indubitable nor unmistakable, and is therefore insufficient to warrant the verdict of the jury. This must be manifest from a review of the case.

Ratification: Laches. In 4 R. C. L., page 514, section 26, the rule is thus stated: "Laches, acquiescence and Ratification. The rule is that where a party has been induced to enter into a contract by false and fraudulent representations, he may, upon discovering the fraud, rescind the contract; but the great weight of authority holds that if the party defrauded continues to receive benefits under the contract after he has become aware of the fraud, or if he otherwise conducts himself with respect to it as though it were a subsisting and binding engagement, he will be deemed to have affirmed the contract and waived his right to rescind. In other words, the party who has been misled, is required, as soon as he learns the truth, and discovers the falsity of the statements on which he relied, with all reasonable diligence to disaffirm the contract and give the other party an opportunity of rescinding it, and of restoring both of them to their original position. The party deceived is not allowed to go on deriving all possible benefits from the transaction and then claim to be relieved from his own obligations by seeking its rescission."

For the errors which we have assigned, we respectfully submit that the judgment of the court below should be reversed; that this court should hold that the complainant, Kropp, has failed to show by testimony "clear, convincing, undubitable and unmistakable" that the release in question was procured by fraud, but that, on the contrary, the release was valid and had been ratified and affirmed by Kropp and that he had been guilty of such laches as to preclude his effort to repudiate it at this late day, and that judgment should be held entirely for the appellant.

Fulton Thompson, J. Harvey Thompson and Robert H. Thompson, for appellant.

The court below erred in not excluding from the jury all of the plaintiff's testimony on the motion of the defendant made when the complainant rested his case, as shown by the special bill of exceptions.

The question presented by this assignment has in many of its aspects already been discussed in this brief. The only remaining matter to be considered is whether the...

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