Austin v. St. Louis Transit Company
| Decision Date | 14 November 1905 |
| Citation | 91 S.W. 450,115 Mo.App. 146 |
| Parties | AUSTIN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
AFFIRMED.
STATEMENT.--On October 5, 1901, plaintiff was a passenger on one of defendant's summer cars traveling on Jefferson avenue, in the city of St. Louis. Her destination was the intersection of Mills street and Jefferson avenue. In response to a signal the car was stopped at the Mills street crossing. The car was an open one with running-boards along its sides. Plaintiff was accompanied by her granddaughter, a child about twelve years of age. When the car stopped, plaintiff took her grandchild by the hand, assisted her to alight, and then attempted to get off. Before she succeeded in reaching the ground, and while she had hold of a post or upright of the car, with one foot on the ground and the other on the running-board, in response to a signal given by the conductor, the car was started forward. The motion of the car caused plaintiff to fall upon the running-board and in this position she was carried or dragged a considerable distance wrenching or straining her back and bruising her side and hip; for these injuries she recovered a judgment for $ 262.50, from which defendant duly appealed.
The answer, in addition to a general denial, pleaded a written release by plaintiff of her claim for damages caused by the accident.
The reply admitted the execution of the release but alleged that it was obtained by imposition and fraud; that the defendant's claim agent, who procured plaintiff's signature to the release, represented to plaintiff that the money paid her (ten dollars) was given to her as a charity and that the paper she signed was only a receipt to be presented to the defendant to show that the money had been paid. The reply alleged that plaintiff could neither read nor write and that the instrument was not read to her; that she signed it with no knowledge of its contents, believing it to be simply a receipt, and with no knowledge that it was a release, and would not have signed it had she known that it was a release.
The release was read in evidence. On its face it is a full acquittance of defendant of all plaintiff's claims for damages caused by the injury. The evidence in respect to what took place between plaintiff and defendant's claim agent and in regard to how plaintiff's signature was obtained to the release is more than conflicting; it is diametrically opposed. Plaintiff's testimony in substance is, that the claim agent called two or three times within a few days after the injury and while she was in bed suffering pain, and told her he was authorized by the company to pay her five dollars, and as she was poor and in need he would pay her five dollars out of his own pocket and make it ten dollars; that he produced a paper, telling her it was a receipt, and she sat up in bed and signed it, believing it was nothing more than a receipt for ten dollars. Plaintiff testified that she could neither read nor write and that the paper was not read to her but was handed to her for her signature and she traced her name to it, having learned to trace her name though she could neither read nor write. Plaintiff further testified that the agent wanted a witness to the paper and she had Mrs. Waddell, who resided in the same house, called down and she signed the paper as a witness. Mrs. Waddell testified that she signed the paper as a witness but did not read it, and it was not read to her or to the plaintiff while she was in the plaintiff's room. The defendant's claim agent testified that he called to see plaintiff on October ninth and took up the matter of settlement with her. Plaintiff said she had rather see some of her friends before she made a settlement and asked him to call the next day. He called on the morning of the tenth and again took the matter up with her. Witness further testified as follows:
Judgment affirmed.
Sears Lehmann with George W. Easley for appellant; Boyle & Priest of counsel.
The evidence of plaintiff showed that no proper tender was made to defendant of the money received by her as consideration for the release. Before suing on a rescinded, fraudulent contract a tender of the consideration must be made to the party from whom it was received. Alexander v. Railroad, 54 Mo.App. 70; Winter v. Railroad, 160 Mo. 189; Retzer v. Packing Co., 58 Mo.App. 270; Smith v. Kander, 85 Mo.App. 33; Vandervellen v. Railroad, 61 F. 58; Gould v. Cayuga Bank, 86 N.Y. 75; Jewett v. Morton, 44 Mo. 276; Lockwood v. Railroad, 65 Mo. 233; Melton v. Smith, 65 Mo. 324; Estes v. Reynolds, 75 Mo. 563; Och v. Railroad, 130 Mo. 27; Carson v. Smith, 133 Mo. 606; Taylor v. Short, 107 Mo. 384; Schultz v. Christman, 6 Mo.App. 342; Cohn v. Reed, 18 Mo.App. 115; White v. Sewing Machine Co., 27 Mo.App. 474; Keen v. Engine Co., 34 Mo.App. 485; Poe v. Stockton, 39 Mo.App. 550; Shoe Co. v. Bank, 59 Mo.App. 662; Banking Co. v. Insurance Co., 75 Mo.App. 316.
J. Hugo Grimm for respondent.
(1) There was a proper and legal tender of the ten dollars to defendant before the suit was brought, and if it was necessary to keep the tender good this was done in plaintiff's instructions to the jury directing that the defendant be given credit for the ten dollars if a verdict should be found for plaintiff. Bertrand v. St. Louis Transit Co., 108 Mo.App. 70. But it is not the law that a tender by plaintiff was a condition precedent to recovery. McCarty v. T. C. Co., 21 Texas Civil App. 568; Lumley v. Railroad, 6 Am. and Eng. Railroad Cases (N. S.) 82; Goodson v. National Masonic Accident Ass'n, 91 Mo.App. 352; 24 Am. and Eng. Ency. of Law (2 Ed.), pp. 314-315. (2) The claim agent clearly misrepresented to plaintiff the character of the paper she was signing, telling her that it was a mere receipt for money given as charity, whereas in fact by its terms it was a release of all her claims against the defendant. 24 Am. and Eng. Ency. of Law (2 Ed.), pp. 314-315; Courtney v. Blackwell, 150 Mo. 245; Blair v. Railroad, 89 Mo. 383; Bliss v. Railroad, 160 Mass. 443.
BLAND, P. J. (after stating the facts).--
An instruction in the nature of a demurrer to the evidence was offered and refused. Plaintiff made out a clear case entitling her to recover. The defense relied on was the release and the failure to tender back the ten dollars paid. In respect to the tender, the evidence is that pending a former suit on the same cause of action, plaintiff's attorney went to the office of the attorney of record for the defendant in the former suit and offered to pay him the ten dollars and stated to the attorney that if he would not accept the tender he would go to the general office of the defendant and make it there. The defendant's attorney replied that there was "no use to do that" as the defendant would not accept the money. We think this evidence is sufficient to show that a technical tender of the ten dollars was waived by the defendant. In regard to the release, the plaintiff's evidence tends to show that it was obtained by the false representations of defendant's claim agent and that she signed it believing it to be simply a receipt and nothing more. If this evidence is to be believed, then the so-called release constituted no bar to the suit. The question as to whether or not it was fairly obtained was, under all the evidence, for the jury and not for the court, and the court properly denied the defendant's demurrer to the evidence.
The defendant assigns as error the giving of the following...
To continue reading
Request your trial