Carroll v. United Railways Company of St. Louis

• Decision Date: 21 February 1911
• Citation: 137 S.W. 303,157 Mo.App. 247
• Parties: MARY CARROLL, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

137 S.W. 303

157 Mo.App. 247

MARY CARROLL, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

February 21, 1911

Argued and Submitted December 6, 1910

Motion for Rehearing Filed March 3, 1911. Motion for Rehearing Overruled and Opinion, as Modified, Refiled May 2, 1911.

Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.

Judgment reversed and cause remanded.

Geo. T Priest for appellant; Boyle & Priest of counsel.

(1) The court erred in overruling defendant's challenge for cause to juror, William Klasek, on his voir dire, on the ground that said juror was prejudiced against defendant. Heidbrink v. United Railways, 133 Mo.App. 40; Theobold v. Transit Co., 191 Mo. 428. (2) The court erred in overruling defendant's demurrers to the evidence. First: Because the evidence fails to disclose any mutual mistake of fact or any false or fraudulent representation was made by defendant. Second: Because the evidence shows that no representation was made with the intent to deceive. Third: Because the evidence shows that no statement or representation was made with the purpose of having plaintiff act upon it. Fourth: Because the evidence shows that the alleged false representations were predictions and mere matters of opinion. 14 Am. and Eng. Enc. Law (2 Ed.), p. 23, p. 21, p. 33; Saunders v. McClintoch, 46 Mo.App. 225; McFarland v. Railroad, 125 Mo. 253; Homuth v. Railroad, 129 Mo. 629. Fifth: Because the evidence shows that at the time the alleged false and fraudulent representations were made, that they were not made with the knowledge that they were false. McFarland v Railway, 125 Mo. 253; Homuth v. Railway, 129 Mo. 629. (3) The court erred in refusing to give at defendant's request, the following instruction offered at the close of all the testimony. "The court instructs you that there is no evidence that plaintiff refunded defendant the money she received on said release or tendered said sum to defendant, and therefore your verdict must be for the defendant." Althoff v. Transit Co., 204 Mo 170; Whitewell v. Aurora, 139 Mo.App. 597.

Joseph S. Laurie for respondent.

(1) The trial judge believed the juror. He was the sole judge of credibility, and we submit that his finding, under such circumstances, should be conclusive. Baldwin v. State, 12 Mo. 223; McCarty v. Railroad, 92 Mo. 536; State v. Cunningham, 100 Mo. 382; City v. Sykes, 191 Mo. 76; State v. Vickers, 209 Mo. 12; State v. Gordon, 191 Mo. 114; Eckert v. Transfer Co., 2 Mo.App. 36; Spangler v. Kite, 47 Mo.App. 230; State v. Van Wye, 136 Mo. 227; State v. Brown, 188 Mo. 451; Glasgow v. Railroad, 191 Mo. 347; Joyce v. Railroad, 129 Mo. 344; Montgomery v. Railroad, 90 Mo. 446; Ruckenberg v. Railroad, 161 Mo. 70; Coppersmith v. Railroad, 51 Mo.App. 357; State v. Darling, 199 Mo. 188; State v. Church, 179 Mo. 629; State v. Sykes, 191 Mo. 76. (2) Appellant's challenge of Juror Klasek was not specific, and is, therefore, entitled to no consideration in this court. State v. Taylor, 134 Mo. 109; State v. Reed, 137 Mo. 125; State v. Albright, 144 Mo. 638; State v. Soper, 148 Mo. 217; State v. Evans, 161 Mo. 95; State v. Forsha, 190 Mo. 296; State v. McCarver, 194 Mo. 717; State v. Meyers, 198 Mo. 225; State v. Miles, 199 Mo. 530; State v. Woolley, 215 Mo. 620; State v. Crow, 209 Mo. 316. (3) The error, if any, in overruling said challenge, was harmless. Deidman v. Young, 87 Mo.App. 530; State v. Coleman, 186 Mo. 151; State v. Brown, 188 Mo. 451; Elliot's Appellate Procedure, Sec. 632; Obrien v. Vulcan Iron Works, 7 Mo.App. 257; Hegney v. Head, 126 Mo. 619; Williamson v. Transit Co., 202 Mo. 345; Joyce v. Railroad, 219 Mo. 344; Pemiscot Land & Lumber Co. v. Cooperage Co., 126 S.W. 218; Hencke v. Railroad, 69 Wis. 401. (4) Inasmuch as Mr. Laurie was not a party to the action, and had no interest therein, he was a competent witness at common law. The statute in question is an enabling act, and does not disqualify any person as a witness who was a competent witness at common law. Jenkins v. Emmon, 117 Mo.App. 1; Banking Co. v. Loomis, 140 Mo.App. 62; Jackson v. Smith, 139 Mo.App. 691; Bailey v. Bailey, 139 Mo.App. 176; Darks v. Scudder-Gale Co., 130 S.W. 430; Angel v. Hester, 64 Mo. 142; Meyer v. Thieman, 90 Mo. 433; Bates v. Forcht, 89 Mo. 121; Leach v. McFadden, 110 Mo. 584; Linn v. Hockaday, 162 Mo. 111; Bank v. Slattery, 166 Mo. 620; Weiermueller v. Scullin, 203 Mo. 466. (5) The testimony of Mr. Laurie, to the effect that Mr. Easley was the attorney of defendant in charge of its personal injury litigation, is wholly uncontradicted, and a tender to him, as such attorney, was sufficient. It has been so decided by this court. Austin v. Transit Co., 115 Mo.App. 146; Bertrand v. Transit Co., 108 Mo.App. 70. (6) While we insist that Mr. Laurie was a competent witness to prove the tender, and that the tender to Attorney Easley was sufficient, we submit that the competency of Mr. Laurie and the authority of Mr. Easley, are, under the circumstances, immaterial, for two reasons: First. It was shown upon the trial that a tender to defendant or any officer of the company with authority to accept or reject the same, would have been useless and nugatory. Enterprise Soap Works v. Sayers, 55 Mo.App. 15; Harwood v. Dunn, 41 Mo.App. 48; Woods v. Thompson, 114 Mo.App. 38; Girard v. St. Louis Car Wheel Co., 123 Mo. 358. Second. Conceding, for the sake of the argument, that no tender was made, still appellant has no ground of complaint. As shown by the verdict, plaintiff was injured by defendant's negligence, and the release wrongfully obtained, and the jury, in assessing plaintiff's damages, gave defendant credit for the $ 250 paid her in consideration of the release, thereby, in legal effect, returning to defendant the amount paid for the release. Girard v. Car Wheel Co., 123 Mo. 358; Railway Co. v. Goodholm, 61 Kan. 758. (7) It was unnecessary for us to prove fraud in order to avoid the release, but we submit that the fact that Dr. Rowe concealed from plaintiff, until after the settlement, as she testified, and as the jury believed, that he knew her leg was shorter and was bound to become more so, made representations to her wholly inconsistent with such knowledge, shows actual fraud on his part. He concealed the true condition from her, and he knew that his statements to her that her leg would be as good and strong as ever within three months or within any time, were not true and could not be true. Railroad v. Brown, 21 Tex. Civ. App. 568; Railroad v. Fowler, 69 C. C. A. 106; Viallet v. Railway Co., 84 P. 496; Bjorkland v. Seattle Co., 55 Wash. 439; Henry v. Building Assn. 156 Cal. 667; 14 Am. and Eng. Ency. of Law, 41, 95, 97; Whart. & Stille Med. Juris., Sec. 500, 501; Blair v. Railroad, 89 Mo. 383.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

Action by plaintiff for damages for personal injuries alleged to have been sustained by her in the city of St. Louis, on the 25th of November, 1904, while alighting from a street car on which she was a passenger, the car and the line upon which it was running being at the time operated by defendant. The action was instituted November 15, 1905. Averring that her occupation was that of a trained nurse and that as a result of her fall from the car she was severely and permanently injured and prevented from pursuing her avocation, plaintiff demands damages in the sum of six thousand dollars.

The answer, denying every allegation of the petition, pleads contributory negligence on the part of plaintiff. For a further defense, defendant avers that plaintiff, on the 10th of December, 1904, had duly signed and delivered a writing to defendant whereby, in consideration of $ 250 to her paid by defendant and the payment by defendant of the expenses incurred by plaintiff for medical attention given by a physician and surgeon in and about the treatment of her alleged injuries, she had forever released and discharged defendant from all liability accrued and thereafter to accrue on account of the alleged injuries.

The reply, denying contributory negligence, while admitting plaintiff had executed the release, averred that it was in consideration of the $ 250 alone and not in payment by defendant of the expenses incurred to the surgeon for his services, averring that plaintiff was under no obligation to pay the surgeon by reason of the fact that he was the regular salaried physician of defendant and through his assistant attended upon plaintiff at the instance and request of defendant. It is further averred that after plaintiff had met with the accident which is the foundation of her claim, the agents of defendant took charge of her, carried her to her home, placed one of its physicians, Dr. Rowe, an assistant of Dr. Brokaw, its chief surgeon, in charge of her; that Dr Rowe at once made an examination of her person for the purpose of ascertaining the extent of her injuries and reported to plaintiff that the only injury sustained by her was the straining of the muscles and ligaments of the leg, together with nervous shock and that she would be all right within two weeks; that at the expiration of the two weeks, plaintiff being still confined to her bed, Dr. Rowe, who had in the meantime continued to attend upon her, made another examination and told her that her thigh bone had been fractured but that the bone had set itself and had knitted nicely and that within four months her leg would be just as good and strong as it ever was and that she would then be able to assume and perform the duties of her avocation as well as before; that at the time when this report was made to her by Dr. Rowe, defendant's claim agent called at her home and proposed to settle with her upon...