Althoff v. St. Louis Transit Co.

• Decision Date: 14 May 1907
• Citation: 102 S.W. 642,204 Mo. 166
• Parties: ALTHOFF v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

102 S.W. 642

204 Mo. 166

ALTHOFF v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. COMPROMISE AND SETTLEMENT—RESCISSION.

Rev. St. 1898, § 654 [Ann. St. 1906, p. 670], provides that, where in an action for injuries a defense of settlement is set up, plaintiff may attack the settlement on the ground of fraud, etc., and that the question shall be submitted to the jury with the other issues in the case. Held that, notwithstanding the statute, a plaintiff cannot recover as against a settlement, on the ground that it was induced by fraud, where he had not tendered back the amount received as consideration for the settlement.

2. EXCEPTIONS, BILL OF—AMENDMENT.

A bill of exceptions, after proper authentication and filing, can be amended only by proper nunc pro tunc entries in the trial court based on sufficient memoranda to authorize the making of such entries.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Theresa Althoff against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was a suit instituted in the circuit court of the city of St. Louis, seeking to recover damages for personal injuries sustained by the plaintiff, through the negligence of the defendant, by permitting a collision to occur between two of its cars, upon one of which she was a passenger, and thereby permanently injured her. The answer was a general denial and a plea of release and discharge executed by plaintiff, by which, in consideration of $20 paid her, she discharged defendant of all liability on account of said injuries. The reply admitted the execution of the release, and further stated that at the time she signed the alleged contract of release she was incapable of mind and memory to understand its nature and contents or to contract, and that said release was not her act and deed. The reply also alleged deception and fraud practiced upon her by the agent of defendant in the procurement of said release, and that she had tendered back to defendant the $20 paid her as the consideration of her signing the release before the institution of this suit, which was duly verified. We deem it unnecessary to set out in detail the testimony developed at the trial. It is sufficient, to enable us to determine the one legal proposition disclosed by the record, to state merely what the evidence tended to prove. Upon the trial had before the court and jury, the plaintiff introduced evidence tending to prove all the allegations of the petition. The defendant then introduced evidence tending to support its answer, and in rebuttal the plaintiff adduced evidence tending to sustain the reply. At the close of plaintiff's evidence in chief, defendant offered a demurrer thereto, and renewed same at the close of all the evidence in the case, both of which were by the court refused, and exceptions were duly saved. The court then, without objections, gave appropriate instructions for both plaintiff and defendant submitting the issues made by the pleadings to the jury. The jury found for the plaintiff and assessed her damages at the sum of $3,480, after deducting the $20 paid her for the release. Defendant in due time filled its motions for a new trial and in arrest of judgment, which were by the court overruled, and defendant duly excepted, and has appealed the same to this court.

Boyle & Priest and Glendy B. Arnold, for appellant. A. R. Taylor, for respondent.

FOX, P. J. (after stating the facts).

1. This cause comes to this court because a constitutional question was involved; but, as it has not been urged here, we will disregard it, and pass to the only other point made in the case.

2. The defendant complains of the action of the court in refusing to give its demurrer to the plaintiff's evidence, and assigns as the reason thereof that when, in an action at law, the plaintiff has received money from, and which is intended by, defendant as a consideration for a release of the cause of action sued on, it is a prerequisite, to plaintiff's right to sue, that promptly, on discovery of the fraud, she return, or offer to return, to defendant the money so received. In discussing this question, Judge Bliss clearly stated the rule in this language: "But the plaintiff finds the note less than he expected, and complains that he is deceived. And what does he do? Does he at once, upon discovery of the deception, look up the defendant and repudiate the settlement? Not at all; but holds on to the price of the settlement, collects the note, pockets its proceeds, and still treats the claim as never having been adjusted. This the law will never permit. If the plaintiff would repudiate the settlement, he must put the other party in the same condition he was before it was made. He cannot appropriate its...