Breining v. Lippincott
| Decision Date | 11 June 1917 |
| Docket Number | (No. 44.) |
| Citation | 196 S.W. 795 |
| Parties | BREINING v. LIPPINCOTT. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.
Action by Mrs. G. W. Breining against J. W. Lippincott. From a judgment dismissing the complaint, plaintiff appeals. Reversed, with instructions.
See, also, 187 S. W. 915.
Rhoton & Helm and Gardner Oliphint, all of Little Rock, for appellant. Gus Fulk and Frank B. Pittard, both of Little Rock, for appellee.
Appellant brought suit against appellee in the Third division of the Pulaski circuit court on January 25th, on account of the alleged seduction of Mae Breining by appellee on or about the 1st day of April, 1913. Upon former appeal to this court, it was held that the complaint stated a cause of action for personal injury sounding in tort, hence not barred by the one year's statute of limitations. The case was reversed and remanded with instructions to the circuit court to overrule the demurrer and proceed with the cause.
Appellee answered, denying the allegations of the complaint, and, by way of affirmative defense, pleaded a written accord and satisfaction. The writing is as follows:
Appellant filed a reply, denying the execution of an accord and satisfaction in final settlement of her cause of action, or the execution of any accord and satisfaction, or that she had accepted any sum of money in settlement of her cause of action. She further alleged in her reply that appellee had delivered either five or six hundred dollars to her daughter in an attempt to settle any and all claims that existed or might accrue against him on account of the matters pleaded in the complaint, but that appellant never accepted or received any portion thereof in settlement of her cause of action, and denied that the payment constituted a settlement of her cause of action. An amendment was filed to the reply, denying, first, that there was any accord; second, that there was satisfaction.
A demurrer was filed and sustained to the reply and first amendment thereto, the court ruling that appellant would be bound on the accord and satisfaction set out in the answer. The court further stated in the course of its opinion that if certain conditions were pleaded the matter of settlement would be a question for the jury. After recess for the noon hour, the appellant presented a second amendment to her reply, admitting that she signed the release, accord and satisfaction, or receipt, but alleged that her signature thereto was procured through the deceit and fraud of appellee's agent, who represented to her that the instrument would in no wise preclude her from prosecuting her claim against appellee growing out of the seduction of her daughter; that she did not read the instrument but relied wholly and entirely upon the representation as to its purport and effect; that the promise of $600 and payment of $500 of said amount was to cover the expenses incident to the birth of the child, and was promised and paid to her daughter and not to appellant. A demurrer was filed to the second amendment to the reply and overruled by the court.
The court on its own motion then struck the second amendment to the reply to the answer from the files for the stated reason that it was an afterthought and inconsistent with the first reply. Thereupon, the appellant refused to plead further and the court dismissed her complaint. Objections were made and exceptions saved to all adverse rulings. From the judgment dismissing the complaint, an appeal has been prosecuted to this court.
It is insisted by appellant that the court erred in not treating the demurrer to the reply and first amendment thereto as a motion to strike and in not striking the reply from the files for the reason that it was an improper pleading. Under our Code, it is wholly unnecessary and improper to file a reply unless a counterclaim or set-off is pleaded by way of answer. Kirby's Dig. § 6108; Abbott v. Rowan, 33 Ark. 593; Lusk v. Perkins & George, 48 Ark. 238, 2 S. W. 847; A. L. Clark Lbr. Co. v. Johns, 98 Ark. 211, 135 S. W. 892; Prioleau v. Williams, 104 Ark. 322 149 S. W. 101. In the event a reply is filed to an answer containing no counterclaim or set-off, the proper practice is to strike the reply from the files. Cannon v. Davies, 33 Ark. 56; Abbott v. Rowan, 33 Ark. 593; Lusk v. Perkins & George, 48 Ark. 238, 2 S. W. 847. It is quite apparent that the court did not treat the reply and first amendment as a demurrer to the answer relating back to the complaint, for the reason that he sustained the demurrer to the reply and amendment and permitted the complaint and answer to remain intact until after the noon hour; and after the noon hour entertained a second amendment to the reply and overruled a demurrer thereto. Neither did the court treat the reply and second amendment as a demurrer to the answer relating back to the complaint, but, on the contrary, struck it from the files because it was inconsistent, in its opinion, with the reply and first amendment. The court then dismissed the complaint because appellant refused to plead further.
It is insisted, however, by appellee that the reply and first amendment thereto, even if an improper pleading, was a solemn admission that she had received payment in full for all claims and charges growing out of the transactions alleged in the complaint. Counsel for appellee cite much authority to sustain them in their proposition that parties may admit themselves out of court by filing improper and unnecessary pleadings containing solemn and unequivocal admissions which would preclude a recovery. It is unnecessary to define the law in this particular, for we think the interpretation placed upon the reply and first amendment thereto by counsel and court was too narrow. The language of the reply and amendment was broad enough to mean that it was not executed in settlement of her claim at all. Giving the plea its broadest construction, it is not inconsistent with the second amendment to the reply to the effect that her signature had been procured through the representation that the money was to go to her daughter to liquidate her claim for expenses leading up to and incident to the birth of the child. The plea states in so many words that the money was paid to her daughter in an effort to settle any and all claims growing out of the acts set forth in appellant's original complaint, but denies that any part thereof...
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