Alabama & Vicksburg Railway Co. v. Jones

• Decision Date: 11 November 1895
• Citation: 19 So. 105,73 Miss. 110
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. NEWTON JONES
• Court: Mississippi Supreme Court

19 So. 105

73 Miss. 110

ALABAMA & VICKSBURG RAILWAY CO. v. NEWTON JONES

Supreme Court of Mississippi

November 11, 1895

October 1895

FROM the circuit court of the first district of Hinds county HON J. B. CHRISMAN, Judge.

This was an action brought by Newton Jones against the defendant railway company for personal injuries caused by the act of its servants in making a "kicking switch" within the municipality of Jackson, the car thus switched having run over and crushed one of his feet in such manner as to necessitate amputation. The plaintiff, an ignorant negro of advanced age, was standing upon or going across the switch track of defendant at the time of the injury, and the attendant circumstances may be said to have been such as indicate want of ordinary care on his part.

Section 3548, code 1892, which, on a former appeal herein, was held to be a valid exercise of the police power of the state in the regulation of railroads (72 Miss. 22), is as follows "It shall not be lawful for any railroad company or other person to switch a railroad car in the manner commonly known as a 'flying, ' 'running, ' 'walking' or 'kicking' switch, within the limits of a municipality; and, in case of injury resulting to any person or property from switching in violation of this section, the railroad company shall be liable in damages without regard to mere contributory negligence of the party injured."

The defendant relied on a release in writing, executed by the plaintiff on the day but one after he received the injury and within twelve hours after the amputation of his foot, and the testimony of persons present at the settlement to the effect that it was fairly entered into, and with full knowledge of its nature on the part of the plaintiff, together with the fact that the plaintiff had spent all of the money paid to him in settlement, from which last circumstance it was insisted that acquiescence and ratification were deducible. On behalf of the plaintiff there was evidence that he knew nothing of the settlement for about two weeks, having been, at the time it was made, stupefied from pain and the effects of opium; that, when told of it, he at once said he would not have made it but for his mental incapacity from the causes stated; that he then, as soon as possible, consulted with his white friends, and employed an attorney; that he remained in bed for about two months, but several months after the injury, and after he had spent the money received in settlement, tendered the amount back to the company. The evidence was conflicting in many respects, and particularly so as to the manner in which the car that injured plaintiff was switched.

Among others, the following instruction for the plaintiff was given: "5. The court instructs the jury that, if they believe from the evidence that the agents of defendant who procured the release knew that plaintiff, on account of prostration from suffering or the stupefying effects of drugs administered for his release from pain, was not in a condition to consider, weigh and understand any business proposition or transaction, and that defendant's agents, desiring to take advantage of, surprise and overreach plaintiff, then came to his bedside, and obtained a settlement and release, and that the plaintiff did not, and could not, weigh, consider or understand the nature, scope and meaning of the same, and was not in a rational state of mind, then such conduct and procurement would be fraudulent, and plaintiff would not be bound by the settlement, unless, after being fully informed of all the facts and of his rights in the premises, he concluded to treat it as a final settlement, notwithstanding such imposition upon him." The words "and of his rights in the premises, " were a modification of the instruction as asked by the plaintiff, and were inserted by the court of its own motion.

Among the instructions given for the defendant was the following: "6. If the jury believe, from the evidence, that the plaintiff, while in the possession of his mental faculties, or while he understood what he was doing, became conscious that he had signed the release and was informed of its nature and character and of his right to disaffirm it and be restored to his original right, and that he had received the money in consideration therefor from the railroad company, did not promptly disaffirm the contract, but used and appropriated the money received for himself and family, this is an acquiescence, and you will find for the defendant on the release, even though you should believe he was originally entrapped into making the contract."

The words "and of his right to disaffirm it and be restored to his original right" were a modification of the instruction as asked by defendant, inserted by the court of its own motion and over defendant's objection.

Another instruction given for defendant was the following: "7. There are two questions for the jury to settle as to the release: (1) Was the plaintiff mentally capable of contracting when he signed it? and (2) did he expend the money paid him after he became conscious of the source from which he obtained it, and after he was capable of understanding the nature and consequences of the contract he had made, and of his right to annul and repudiate it? If, on either proposition, your answer be in the affirmative, you will find for the defendant."

The words "and of his right to annul and repudiate it, " were a modification of this instruction as asked by defendant, inserted by the court below of its own motion and over the objection of the defendant. The verdict being for the plaintiff, and defendant's motion for a new trial having been overruled, this appeal was prosecuted.

Affirmed.

Nugent & Mc Willie, for the appellant.

The fifth instruction for plaintiff should not have been given. There was no evidence to sustain that part of it relating to the knowledge of the defendant's agents that plaintiff was not in a condition to understand any business proposition on account of prostration from suffering or the stupefying effects of drugs administered, and that defendant's agents desired to surprise and overreach him. This portion of the charge makes what the agents desired, as to which there was no evidence, a pregnant circumstance going to vitiate the settlement, and the jury was left to infer from the fact of settlement the desire to overreach and defraud. No matter what the defendant's agents may have desired to accomplish, this is really what they did and said. There was no representation made, no false statement. The claim agent simply told the plaintiff he had come to make the settlement, and, when the settlement was made, further told him, before leaving, that if he was not satisfied, to signify the fact and the whole transaction might then be undone, and such right of action as he had be restored to him. About this matter the plaintiff affected entire ignorance, but his wife, who stated nothing in contradiction of this testimony, says the plaintiff did not think $ 200 enough, and insisted on $ 300, and that, when the last mentioned sum was agreed on, she took the $ 50 paid in cash and the agent's due bill for $ 250, retaining the due bill until the balance of the money was paid. One may desire to do an improper thing, but unless this desire finds expression in overt acts, no human law can condemn it or make it the basis of rescinding a contract.

The statement is made in the charge that a release obtained under the circumstances stated would be fraudulent. But this cannot be proper, for there is no predicate of fraud in the acts of defendant's agents. They committed no fraudulent acts and made no fraudulent representations. If the release can be avoided, it must be on the single ground that the plaintiff, when he executed the release, did not and could not weigh, consider and understand the nature, scope and meaning of the same, and was not in a rational state of mind. That might furnish ground for a practical rescission by the return of the money and a prompt disaffirmance of the contract. The real inquiry was whether, at the time of making this release, the plaintiff was capable of understanding and intelligently consenting to it, not because of imbecility, but stupefaction from opium, and the mere desire on the part of defendant's agents "to take advantage of, surprise and overreach him, " could not, in any way, affect his state of mind. There is a manifest difference between this case and one in which the release is effected through fraud or fraudulent representations. In the one case the release is voidable; in the other, void ab initio. In the one case the releaser can rescind, if, when fully informed of the facts, he disaffirms the settlement and returns the money; in the other he need not return or offer to return the money. Railroad Co. v. Mills, 11 Eng. & Am. Ry. Cases, 132; Railroad Co. v. Lewis, 19 Ib., 225; Bliss v. Railroad Co., 9 Am. Ry. Corp. Cases, 485; International, etc., Railroad Co. v. Brazzil, 14 S.W. 609, s.c. 78 Tex., 314.

But a graver objection to this charge is found in the last clause "Unless, after being informed of all the facts and of his rights in the premises, he concluded to treat it as a final settlement, notwithstanding such imposition upon him." This is tantamount to saying that he must have been advised by counsel of the law of the given case, and fully informed of his rights, and presupposes imposition. If this rule be true, there could never be a settlement without the presence and advice of counsel, and if the lawyer made a mistake, it would not be binding. We have always understood that everyone is presumed to know the law, and that this presumption follows him in all his transactions. The charge reads, "fully informed of all...