Brown v. Adams Transfer & Storage Co.

• Decision Date: 05 May 1930
• Docket Number: No. 16308.,16308.
• Citation: 31 S.W.2d 117
• Court: Missouri Court of Appeals
• Parties: BROWN v. ADAMS TRANSFER & STORAGE CO.

31 S.W.2d 117

BROWN v. ADAMS TRANSFER & STORAGE CO.

No. 16308.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Rehearing Denied May 26, 1930.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be officially published."

Suit by Edna Mae Brown against the Adams Transfer & Storage Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cowgill & Popham, of Kansas City, for appellant.

McAllister, Humphrey, Pew & Broaddus and Yates & Tipton, all of Kansas City, for respondent.

BARNETT, C.

This is a suit for personal injuries. The jury returned a verdict for plaintiff, a motion for new trial was filed and overruled, and defendant appealed. This court held that the evidence showed that plaintiff was bound by a release of her cause of action; that decision was reviewed by the Supreme Court by certiorari, and the opinion of this court was quashed. In so far as the binding effect of the release is concerned, the statement of the facts and the law of the case are to be found in State ex rel. Brown v. Francis H. Trimble et al., 23 S.W.(2d) 162. The opinion of the Supreme Court only disposes of the questions concerning the release, and it is therefore necessary for this court to pass upon the other assignments of error.

Plaintiff, on December 2, 1925, was riding in an automobile which was driven by one Dunlap. The car was going west on the Independence road in Jackson county and passed under a railroad track through a subway. The Independence road after leaving the subway makes a right-angle turn. According to the evidence most favorable to plaintiff the car in which she was riding was going about 6 or 7 miles an hour when it passed through the subway. Just as the driver was making the turn a truck belonging to defendant coming east and traveling at the rate of 25 or 30 miles an hour ran into the automobile, causing injuries to the plaintiff. No warning signal was given by the driver of the truck, and the automobile could be seen from the truck when the two conveyances were forty feet apart. The petition alleged that plaintiff was a passenger; that the defendant's agent negligently drove the truck at a high and dangerous rate of speed, failed to give any warning; that defendant's brakes were old, worn, and defective; that defendant's agent saw, or by the exercise of the highest degree of care could have seen, plaintiff in a position of peril in time by the exercise of the highest degree of care upon his part to have stopped the truck, or slackened the speed thereof, or to have given warning of its approach, or to have turned the same to one side, and could thereby have averted the collision and the injury, but carelessly and negligently failed to do so. The answer consisted of a general denial; an allegation that plaintiff was guilty of contributory negligence; that the driver of the automobile was guilty of negligence which was the proximate cause of plaintiff's injury; that plaintiff and others were on a joint mission and engaged in a joint enterprise and were the agents and representatives of each other in handling the car, and that plaintiff, on December 7, 1925, had executed a full and complete release to defendant of her cause of action. The reply is in part as follows: "Comes now the plaintiff in the above entitled cause and for her reply to the new matter set forth in the defendant's answer denies each and every allegation therein contained."

The reply then affirmatively alleged that the release executed by plaintiff was obtained by fraud and was therefore void. When the first witness was called to the stand, and before any testimony was introduced, defendant's attorney made the following statement: "For the record, we desire, on behalf of the defendant at this time to object to the introduction of any testimony under the petition and under the pleadings in this case and ask for judgment on the pleadings because there is no issuable question of fact raised by the pleadings, and under all the pleadings and the issues made up by the pleadings, plaintiff is debarred from recovering as a matter of law and has no cause of action."

At the request of plaintiff the court gave the following instructions:

"The court instructs the jury that it is the duty of every person operating a motor vehicle on the highways of this state to drive the same in a careful and prudent manner and to exercise the highest degree of care, therefore, you are instructed that if you find and believe from the evidence that at the time and place mentioned in evidence plaintiff was a passenger in an automobile proceeding west along Independence Road in Kansas City, Missouri, if you so find, and that the defendant, through its agent, servant and employee was then and there operating an automobile east along said Independence Road at the time and place mentioned in evidence and that said agent, servant and employee was then and there acting within the scope of his employment, if you so find, and if you further find and believe from the evidence that when said automobile in which plaintiff was riding emerged from underneath the Belt Line tracks at the place mentioned in evidence, if you so find it did, that said defendant through its agent, servant and employee, acting within the scope of his employment, if you so find, negligently drove said automobile at said time and place at a high and dangerous rate of speed under the circumstances existing at that time, to-wit: 25 miles per hour or more, or that said defendant, through its agent, servant and employee, if you so find, negligently failed and neglected to sound any horn or give any warning of any kind whatever of the approach of said automobile and that as a direct result of the negligent driving of said automobile at said time and place at a high and dangerous rate of speed under all the circumstances then and there existing, to-wit: 25 miles per hour or more, if you find it was so driven, or that by reason of the failure and negligence to sound any horn or give any warning of any kind whatever of the approach of said automobile, if you so find, said automobile collided with the automobile in which plaintiff was riding, and that as a direct result thereof plaintiff was injured, then your verdict must be for the plaintiff, provided you further find and believe from the evidence that plaintiff, at said time and place, was exercising ordinary care for her own safety, and provided, you further find and believe from the evidence that plaintiff signed the release mentioned in evidence under the facts and circumstances detailed in instruction No. P-2."

"P-2. The court instructs the jury that if you find and believe from the evidence that at the time plaintiff signed the release mentioned in evidence, plaintiff did not know the contents of same, and if you further find and believe from the evidence that plaintiff believed she was merely signing the same as a witness so Dunlap could obtain money for the damages to his car, if so, and if you further find and believe from the evidence that defendant's agent fraudulently, if you so find, represented to plaintiff that she was merely signing said release so Dunlap could obtain money for damages to his car, if so, and if you further find that defendant's agent pretended to read said release and did not mention plaintiff's name in reading the same and that by said means, if you so find, procured her signature to said release, then you are instructed that said release is null and void as to the plaintiff and same constitutes no bar whatever to this suit; provided, however, that you find that in permitting her signature to said release to be induced as above set out, the plaintiff was exercising that degree of care and diligence that would be expected of the ordinary person of average mentality and business experience."

The court refused the following instructions offered by defendant:

"D-7. The court instructs the jury that the law makes it the duty of persons in signing papers affecting their legal rights to use ordinary care to exercise their natural faculties of ascertaining the contents of such papers, and if you believe from the evidence that at the time plaintiff signed the release in question she read it and understood it, or that she failed to read it or have it read to her and signed it without knowing its contents, and that by such failure she failed to use ordinary care, that is, such care as an ordinarily careful and prudent person would usually exercise in signing papers under the same or similar circumstances, then you must find for defendant regardless of the draft or the distribution of the proceeds thereof."

"D-8. The court instructs the jury that admissions in the pleadings by the parties are binding and conclusive on such matters and that under the pleadings and evidence you must find that plaintiff signed the release and draft referred to in evidence and if from the evidence you shall further find that in so signing them plaintiff failed to read them or have them read and that by such failure she failed to use such care affecting her own rights as an ordinarily careful and prudent person would ordinarily use under the same or similar circumstances, then she is bound by same and your verdict must be for defendant."

Opinion.

It is claimed that the court erred in overruling defendant's motion for judgment on the pleadings and its objection to the introduction of any evidence. In the development of this assignment it is claimed that the reply was neither a special nor a general denial within the meaning of the Code. It will be noticed that the reply does not deny each and every allegation of new matter, but recites that in reply to the new matter set forth in the answer plaintiff denies each and every allegation therein contained. The words "therein contained" mean contained in the answer. The plaintiff is not required to reply to anything but new matter. In doing so plaintiff may deny each...