Clark v. Southern Can Co.

• Decision Date: 22 June 1911
• Citation: Clark v. Southern Can Co., 116 Md. 85, 81 A. 271 (Md. 1911)
• Parties: CLARK v. SOUTHERN CAN CO.
• Court: Maryland Court of Appeals

81 A. 271

116 Md. 85

CLARK v. SOUTHERN CAN CO.

Court of Appeals of Maryland

June 22, 1911

Appeal from Baltimore Court of Common Pleas; H. Arthur Stump, Judge.

Action by Mary A. Clark, an infant, by her father and next friend James Clark, against the Southern Can Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Robert F. Leach, Jr., and John H. Richardson, for appellant. J Morfit Mullen and W. Calvin Chesnut, for appellee.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, PATTISON URNER, and STOCKBRIDGE, JJ.

PATTISON J.

In this case the appellant, an infant, by her father and next friend brought suit in the court of common pleas against the defendant company to recover for personal injuries sustained by her on or about March 1, 1909, while employed by the company in the operation of a cap-cutting machine. To this action the defendant company pleaded, first, that it did not commit the wrong alleged; and, second, "that the father and next friend of the said infant plaintiff did heretofore institute a suit at law in this court for the benefit of said infant, based upon the same cause of action sued for herein, and that the said father and next friend of said infant did compromise and settle said suit and said cause of action, and that the said father and next friend did before this suit, by his deed under seal, release the defendant from any and all claims that may or might have existed against it by reason of the cause of action herein sued for." The plaintiff joined issue on the first plea, and replied to the second, alleging that the release mentioned therein was procured by the deceit, misrepresentation, and fraud of the defendant, its agents, servants, or employés. The defendants in their rejoinder thereto denied the facts alleged in the replication.

In the course of the trial, eight exceptions were taken by the plaintiff to the admission of testimony, and, at the conclusion of the plaintiff's case, four prayers were submitted to the court by the defendants. The court was asked in the first prayer to instruct the jury that there was no legally sufficient evidence to entitle the plaintiff to recover; in the second that the accident was caused by the negligence of the plaintiff; in the third, that as the uncontradicted evidence in the case showed the institution, compromise, and settlement by James Clark, father and next friend of the plaintiff, of a former suit in the same court and for the same accident as alleged in the second plea, the verdict of "the jury must be for the defendant, because, under the pleadings in this case, there is no evidence legally sufficient to show fraud, misrepresentation, or deceit on the part of the defendant, its agents, or servants in the procurement of the compromise and settlement of said suit," and by the fourth prayer the court was asked to instruct the jury as follows: "That as the following facts appear from the plaintiff's own testimony in this case: (1) The plaintiff herein by James Clark, her next friend, has heretofore brought a suit in this very court to recover for the same accident on account of which this suit is brought. (2) That the said prior suit was compromised and settled by the said James Clark, and a proper order of agreement and settlement was duly entered by order of the said James Clark's attorney in the said case, heretofore filed in this court. (3) That the said order to enter the said case agreed and settled is still valid and subsisting, and has never been attacked by any proceeding instituted directly for that purpose. Therefore the verdict of the jury must be for the defendant." The court granted all of said prayers, to the granting of which the appellant excepted, thus making the ninth exception.

We will first consider the ruling of the court in granting the fourth prayer. This accident occurred on the 1st day of March, 1909. An attorney, Eldridge H. Young, was promptly consulted, and on the 18th day of the same month filed by titling two suits, one on behalf of the infant for the injuries suffered by her, and the other on behalf of the father for the loss of his daughter's services. Five days thereafter, on the 23d day of March, the plaintiff for a nominal consideration of $1, as therein stated, executed under seal a release to the defendant company, releasing and discharging it from any and all liability by reason of said injuries. In this release the plaintiff alleges that she was injured on or about the 1st day of March, 1909, while in the employment of the defendant company, under circumstances which, as she claimed, rendered the company liable to her in damages, although such liability was, as therein stated, denied by the company. It further stated that the execution of the release was pursuant to a desire of both parties that the matter should be settled and adjusted. In addition thereto, the father likewise executed, under seal, to the defendant company a release wherein he, in consideration of the said sum of $1 paid to his daughter at his request, acknowledged full satisfaction of all claims arising out of said injuries, and released the said company of any liability by reason thereof; Some days thereafter Eldridge H. Young, counsel for the plaintiff, was notified by postal card stamped as of the 27th of March, 1909, written by the sister with the knowledge of the plaintiff and with the name of the plaintiff signed thereto, that she wished to discontinue the suit against the defendant company. The card was worded as follows: "Mr. Young--I have changed my mind about the case against the Southern Can Company for Mary Clark as he gave us steady work and we took it and went to work, so I don't think will be any use bothering." Mr. Young promptly replied to this card, and in answer thereto his client, a few days thereafter, called at his office, and said to him that the agent of the company had come to her home; that the company had either turned her sister off, or was going to turn her off from work unless the case was settled; that he promised they would take her back to work, and she had signed the paper settling the case. Young having heard that the defendant company was represented by Gans & Haman, he called upon them, and they likewise told him of the release, but stated that it was obtained before they were retained as counsel in the case. Young did not ask to see the release, and it was not shown to him. He, however, discussed with them the payment of the costs of the case as well as the fee that he claimed should be paid to him by the defendant company, because, as he expressed it, "they settled the case over my head." Messrs. Gans & Haman declined to consider the payment of a fee, but took under consideration the payment of the costs, and in a few days thereafter wrote him as follows: "Our client is willing to pay the costs in these cases provided the same are entered 'agreed and settled.' They are not, however, willing to do anything more than this." The next day Young called upon Gans & Haman, and directed them to prepare the papers necessary to effect the settlement suggested by them in the aforegoing letter. In response thereto they prepared and sent to him, which was thereafter signed by his client, James Clark, father of the infant plaintiff, the following release: "This release made this 16th day of April in the year 1909, by James Clark individually and also as next friend of and on behalf of his infant daughter Mary Clark. Whereas, the said Mary Clark was injured on or about the first day of March, 1909, by working in the employment of the Southern Can Company, a corporation; and whereas, the said Mary Clark and the said James Clark claim the said injury was caused by the negligence of the said company or its agents, and two suits were subsequently brought against the said company in the court of common pleas of Baltimore city, one by the said Mary Clark and the other by James Clark, her father. Whereas the said Mary Clark and James Clark subsequently agreed to dismiss said suits and settle any claim that they or either of them might have against said company: Now, therefore, this release witnesseth: That in consideration of the sum of one dollar, receipt whereof is hereby acknowledged, and other good and valuable considerations, the said James Clark, on his own behalf and also as father and next friend of his infant daughter, Mary Clark, and acting in her behalf, does hereby release, acquit, exonerate, and discharge the said Southern Can Company, corporation, of and from any and all suit, action, claim, or demand of any claim whatsoever that the said Mary Clark now has or may have against said company, or that he, the said James Clark, now has or may have against said company by reason of the loss of services of his said infant daughter. Witness the hand and seal of the said James Clark individually and as father and next friend of the said Mary Clark. James Clark [Seal], Individually and as Father and as Next Friend of Mary Clark, Infant. Test: J. C. Wheeler. E. H. Young." The above release was executed by Clark through and at the request of Young. Upon the execution of the release it was delivered to Gans & Haman, with the orders to enter the cases "Agreed and settled." The orders were filed April 21, 1910, and upon that day, as shown by the docket entries, the cases were marked, "Agreed and settled." The costs in the cases, including an appearance fee to Young of $5 in each case, were paid by Gans & Haman.

The evidence further discloses that both the plaintiff and the sister returned to...