Berry v. St. Louis & S. F. R. Co.

• Decision Date: 27 November 1909
• Court: Missouri Supreme Court
• Parties: BERRY v. ST. LOUIS & S. F. R. CO. et al.

122 S.W. 1043

223 Mo. 358

BERRY v. ST. LOUIS & S. F. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. RELEASE (§ 52) — SUFFICIENCY OF REPLY RAISING ISSUE OF FRAUD.

A reply tendering to defendants the amount received by plaintiff for a release set up in the answer, and alleging that the release was obtained by coercion, fraud, and deception used by defendants by and through a claim agent named and another; that they told plaintiff her lawyer had gone back on her; that her neighbors and friends were all going to testify against her; that they would pay her lawyer; all of which statements were untrue; and that she, being old and poor, was finally scared and persuaded by them into the settlement, and that she was led to believe that the paper she signed contained stipulations to the effect that defendants would pay her lawyer, which it did not; and that the alleged settlement was not the one she understood she was making; and that her actual damages were in excess of the amount in the settlement — was sufficient.

2. JURY (§ 10) — RIGHT TO JURY TRIAL — CONSTITUTIONAL GUARANTY — CONSTRUCTION.

The provision of Const. art. 2, § 28 (Ann. St. 1906, p. 162), that "the right of trial by

jury, as heretofore enjoyed, shall remain inviolate" means that, if prior to the adoption of the Constitution defendant by law or practice is entitled to a jury, such right must remain inviolate, and the only inhibition on the Legislature was to prevent depriving a party of a jury trial where he had theretofore enjoyed the right.

3. JURY (§ 13) — RIGHT TO JURY TRIAL — ISSUE OF FRAUD AS TO RELEASE SET UP IN ANSWER.

Rev. St. 1899, § 654 (Ann. St. 1906, p. 670), permitting a reply alleging that a release set up in the answer was fraudulently procured from plaintiff, and that the issue thus raised shall be submitted to the jury, is not violative of Const. art. 2, § 28 (Ann. St. 1906, p. 162), providing that the right of trial by jury "as heretofore enjoyed" shall remain inviolate, since such an issue was triable by jury before the adoption of such constitutional provision.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Julia A. Berry against the St. Louis & San Francisco Railroad Company and another. From a judgment for plaintiff, defendant above named appeals. Affirmed.

W. F. Evans and Moses Whybark, for appellant.

GRAVES, J.

The plaintiff originally brought her suit against the St. Louis, Memphis & Southeastern Railroad Company. Petition, filed to the March term, 1905, of the New Madrid circuit court, was in two counts. By the first she sought to recover damages to crops growing on certain lands belonging to her by reason of defects in the right of way fences belonging to defendant. Damages were alleged in the sum of $600 and judgment asked in double that sum. By the second count damages were sought in the sum of $50 to be doubled under the statute for injury to a horse alleged to have been occasioned by the negligent construction of a farm crossing. Upon this count verdict went for the defendant, and further notice need not be taken. Later, and at the March term of said court, the St. Louis & San Francisco Railroad Company was on motion of plaintiff made a party defendant. At the September term following, defendants answered, by the terms of which answer they denied the charges in both counts contained, and, further answering, averred that the suit had been fully settled for $130 and the money paid to plaintiff by the last-named defendant, specifically pleading a stipulation signed by the plaintiff acknowledging the payment of the $130, and agreeing that the suit abate and be dismissed at the costs of defendant. Then follows averments to the effect that the first-named defendant was the owner of the road, but that the latter defendant had operated the same since June 1, 1904; that said settlement was in satisfaction of plaintiff's claims as to both defendants, but that she thereafter sued the latter defendant for the same causes of action which had been thus settled. To this answer the plaintiff filed the following reply: "Comes now the plaintiff, and first tenders to the defendant the amount received in the alleged settlement, and says that said settlement was obtained by coercion, fraud, and deception used by the defendants by and through J. O. Livesay, claim agent, and W. E. Robertson; that they told her her lawyer had gone back on her; that her neighbors and friends were all going to testify against her; that they would pay her lawyer, all of which statements as made were untrue, and that she, being old and poor, was finally scared and persuaded by said parties into said settlement, and that she was led to believe that the paper signed by her contained stipulations to the effect defendants were to pay her lawyer, which it does not contain, and that said alleged settlement is not in fact the one that she understood she was making; that her actual damages in said matters were in excess of said amount in said settlement; and, having made reply, again asks for judgment." To this replication defendants demurred, and, when the same was overruled, duly excepted. At the September adjourned term of said court for the year 1905, the plaintiff dismissed as to the first defendant, and the trial proceeded as to the remaining defendant, the appellant here. Verdict upon a trial before a jury was returned for plaintiff on the first count for $350. Upon the second count the verdict was for defendant. On motion of plaintiff the damages were doubled and judgment accordingly entered for $700. Later and at the same term, and whilst the motion for new trial was pending, the plaintiff remitted the sum of $135.90, and a new judgment for $564.10 was entered, and the motion for new trial overruled. Defendant excepted to both acts of the court; i. e., that of permitting the remittitur, and the act of overruling the motion for new trial. Within proper time motion in arrest of judgment was filed and overruled, defendant excepting. When the case was called for trial, the defendant requested that the matter of settlement set up in the answer and the issues thereon made in the reply be tried by the court without the intervention of a jury, and in such request it is charged that section 654, Rev. St. 1899 (Ann. St. 1906, p. 670), in so far as it undertakes to make such an issue triable by a jury violates section 28, art. 2, Const. Mo. (Ann. St. 1906, p. 162). This was overruled and the whole case submitted to the jury.

This and kindred questions are the only questions urged in the elaborate and excellent brief filed by the defendant. Plaintiff has not favored us with a brief. The questions urged therefore are purely questions of law.

1. To what has been said in the statement it should be added that to the reply a demurrer was filed and the court overruled the same. This demurrer charged that the replication failed to state sufficient facts to constitute a defense to the new matter set up in the answer. This, to our mind, is only one way of stating the real issue between these parties. Defendant claims that section 654, Rev. St. 1899, is invalid, and for that reason the question of fraud, as pleaded in this reply, could only be heard in a court of equity, and not in a court of law and before a jury. If, however, it is meant that the replication does not state a proper defense in either branch of the court, equity or law, we cannot give our assent to the insistence. The replication pleads facts properly raising the issue of fraud in the procurement of the settlement and release. To this end, we have purposely set it out. The replication charges certain representations which induced the settlement. It then charges the falsity of these representations and the reliance of the plaintiff thereon. Not only so, but there is a tender of the sum so paid in settlement. The reply was at least a proper defense to the new matter (the settlement) pleaded in the answer. Whether such matter should have been tried before a chancellor or a jury remains to be seen. Suffice it to say for the present that the reply was sufficient to raise the issue of fraud in the procurement of the settlement, and the question of the forum for the trial of the issue we will consider in due order. Cases cited by appellant are not opposed to the idea that this reply properly presented an issue of fraud, which is cognizable in some court. We therefore pass to the real question urged in this case.

2. As indicated above, the real issue urged by the defendant in this case is the unconstitutionality of section 654, Rev. St. 1899, which section reads: "Whenever a release, composition, settlement or other discharge of the cause of action sued on shall be set up or pleaded in the answer in bar to plaintiff's cause of action sued on, it shall be permissible in the reply to allege any facts showing or tending to show that said release, composition, settlement or other discharge was fraudulently or wrongfully procured from plaintiff, and the issue or issues thus raised shall be submitted with all the other issues in the case to the jury, and a general verdict or finding upon all the issues, including the issue or issues of fraud so raised, shall be sufficient." This section appears as a new secti...