Carroll v. United Rys. Co. of St. Louis

Decision Date02 May 1911
Citation137 S.W. 303,157 Mo. App. 247
PartiesCARROLL v. UNITED RYS. CO. OF ST. LOUIS.
CourtMissouri Court of Appeals

In an action against a street railway company for injuries to a passenger by an alleged premature start, a juror on his voir dire examination, in answer to a question as to whether he had any ill feeling against defendant, stated that he would be against it, because he had had some experience, in that when he was a passenger many times the operatives didn't stop for him to alight in the way he thought they ought to. In answer to the court, the juror said that he had previously had prejudice against the company, but that he wouldn't have any prejudice against rendering a decision in the case either way. He further stated that his feeling was one of ill will against the company, and on objection the court ordered him to "stand aside"; but, on ascertaining that the only remaining member of the panel was disqualified, the court recalled the juror, and on his statement that he could give defendant a fair trial, and that the feeling he previously had had been removed, overruled defendant's challenge for cause, and compelled defendant to peremptorily challenge such juror. Held, that the overruling of defendant's challenge for prejudice was error.

3. APPEAL AND ERROR (§ 231) — PRESERVATION OF GROUNDS OF REVIEW — CHALLENGE OF JUROR.

Challenge of a juror "for cause," after an examination indicating prejudice only, to preserve the question for review, was sufficient, without a statement that the juror was challenged for prejudice, where the record plainly indicated that the court had prejudice as a ground of the challenge clearly in mind when he overruled it.

4. JURY (§ 135) — QUALIFICATIONS OF JUROR — PEREMPTORY CHALLENGE.

Under the rule that a litigant is entitled to a trial by a fair and unprejudiced jury, each party entitled has a right to exercise his peremptory challenges out of a full panel of competent, qualified jurors.

5. RELEASE (§ 17*) — AVOIDANCE — FALSE REPRESENTATION.

While a release, executed on the faith of representations or beliefs as to what will happen in the future concerning plaintiff's physical condition, may not be avoided because of the failure of the facts represented to occur, yet, where a physician, employed by defendant to attend plaintiff, either knew or ought to have known that the neck of plaintiff's femur had been broken, and that this would inevitably result in shortening the limb and in a permanent disability, and with this knowledge informed her that she would soon be as well or as good as ever, in order to induce her to execute a release for a nominal sum, the release was invalid, and no defense to a subsequent action for the injuries.

6. WITNESSES (§ 141) — COMPETENCY — TRANSACTIONS WITH PERSONS SINCE DECEASED — AGENTS.

Rev. St. 1909, § 6354, provides that, if one of the original parties to a contract or cause of action in issue and on trial is dead, the other party shall not testify, either in his own favor or in favor of any party to the action claiming under him, etc. Held, that where plaintiff's attorney, seeking to rescind a release given by plaintiff to defendant street railway company, made a tender of the amount received for the release to defendant's attorney having charge of the claim, such attorney having died before trial, plaintiff's attorney was disqualified to testify to prove a tender.

7. RELEASE (§ 24) — DEFENSES — RESCISSION OF SETTLEMENT — NECESSITY OF TENDER.

Rev. St. 1909, § 1812, provides that when a release is set up in the answer the issue so raised shall be submitted, with all the other issues, to the jury, and that the jury by its general verdict shall find on all the issues, including the issue of fraud with reference to the execution of the lease so raised. Held, that where a release, pleaded as a defense to an action at law against a railroad company for injuries to a passenger, was attacked for mistake and false representations, plaintiff, to avoid the release, was bound to show a tender before suit brought of the amount received therefor, or, in lieu thereof, to plead and prove facts showing that the amount would not have been accepted as tendered, and that the tender would therefore have been nugatory.

8. RELEASE (§ 24) — INVALIDITY — TENDER OF CONSIDERATION — INTEREST.

Where a release given for injuries was repudiated, defendant was not only entitled to a return of the consideration for the release, but also to interest thereon from the date of payment.

9. RELEASE (§ 24) — AVOIDANCE — TENDER — WAIVER.

Where plaintiff sought to avoid a release in an action for injuries, the fact that defendant insisted on the conclusiveness of the settlement and release was not of itself evidence on which to base a claim that a tender of the consideration before suit brought was unnecessary, on the theory that it would have been refused.

10. RELEASE (§ 59) — INSTRUCTIONS — MISLEADING INSTRUCTIONS.

In an action for injuries, the court charged that, if the jury believed plaintiff was injured, and defendant, through its physician, took charge of her, and such physician, after making an examination, "assured plaintiff that no bones were broken, but later, on making another examination, reported to her that the thigh had been fractured, but that the bone had set itself and knitted nicely, and within three or four months would be as well as ever," etc., and plaintiff, on the faith of such statement, accepted $250 in settlement, and if the jury believed the physician's statement "was untrue, and that plaintiff's condition was such that she would never recover the use of her leg, but was permanently disabled, and the physician's statement, if made, was untrue, and he knew or should have known that plaintiff's disability, by reason of the fracture, was permanent, and had reason to believe that plaintiff would rely on such statement in making settlement," then the release was no bar to the action. Held, that the instruction was erroneous, in so far that it contained the language quoted, as tending to impress the jury that an issue of malpractice on the part of the surgeon was presented, or that his opinion as to the injury when he first saw plaintiff was erroneous.

11. APPEAL AND ERROR (§ 215) — INSTRUCTIONS — REVIEW — NECESSITY OF OBJECTIONS.

Where exceptions are taken to instructions given, they are reviewable on appeal, without an objection having first been reserved thereto prior to their being given.

12. APPEAL AND ERROR (§ 181) — REVERSAL — REVIEW OF MATTERS NOT OBJECTED TO.

Where a judgment is reversed on appeal, the court will, on its own motion, notice error, not suggested by the parties, which might affect a new trial.

13. PLEADING (§ 369) — AVOIDANCE OF RELEASE — MISTAKE — FRAUD — ELECTION.

Where plaintiff alleged that a release of a cause of action for injuries was the result of mutual mistake and false representations, defendant was entitled to compel her to elect on which of the two she would go to the jury.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Mary Carroll against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Boyle & Priest and Geo. T. Priest, for appellant. Jos. S. Laurie and Geo. P. B. Jackson, for respondent.

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 $6000.

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...

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