Dana v. Gulf & Ship Island R. Co.

• Decision Date: 02 February 1914
• Citation: 106 Miss. 497,64 So. 214
• Parties: J. C. DANA v. GULF & SHIP ISLAND R. CO
• Court: Mississippi Supreme Court

64 So. 214

106 Miss. 497

J. C. DANA v. GULF & SHIP ISLAND R. CO

Supreme Court of Mississippi

February 2, 1914

October 1913

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Suit by J. C. Dana against the Gulf & Ship Island Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

E. E Brogan and Bowers & Griffith, for appellant.

On the facts of this case we call the court's attention to the following Mississippi authorities: "Where a railroad company sued by an employee for damages for personal injuries, pleads a release executed by plaintiff, he may avoid the same by showing that it was signed under the belief, induced by the fraudulent representations of the defendant's agents, that it was merely a receipt for wages." Welch v. Alabama, etc., R. Co., 70 Miss. 20, 11 So. 723; Jones v. Alabama, etc., R Co., 72 Miss. 22, 16 So. 379; Wren v. Hoffman, 41 Miss. 620; Howie et al. v. Platt et al., 83 Miss. 15; Sistrunk v. Wilson, 54 So. 89; Townsend v. Hurst, 37 Miss. 680; Folkes v. Pratt et al., 86 Miss. 264; Patton-Worsham Drug Co. v. Planters Mercantile Co., 86 Miss. 423; R. R. Co. v. Chiles, 86 Miss. 361; St. L. & S.D. R. R. Co. v. Ault, 58 So. 104; R. R. Co. v. Chiles, 86 Miss. 365, 38 So. 498.

In addition to these Mississippi authorities, which alone and unsupported by other citations are decisive of the matter in favor of plaintiff, we have endeavored to collate all the reported American cases applicable and related to the question under discussion. Wray v. Chandler, 54 Ind. 146; Rauen v. Prudential Ins. Co., 106 N.W. 198, 129 Iowa 725; Erickson v. Northwest Paper Co., 104 N.W. 291, 95 Minn. 356; Austin v. St. Louis Transit Co., 91 S.W. 450, 115 Mo.App. 146; Tooker v. Ackerly, 6 N.Y.S. 951, 53 Hun 633, 2 Silvernail, 507, 25 N.Y.S. 502; C. & O. R. R. Co. v. Howard, 14 App. D. C. 262, judgment affirmed 20 S.Ct. 880, 178 U.S. 153, 44 L.Ed. 1015; Lumley v. Wabash R. R. Co., 76 F. 66, 22 C. C. A. 60, reversing decree (C. C. 1895), 71 F. 21; decree affirmed in Wabash Ry. Co. v. Lumley (1899), 96 F. 773, 370 C. A. 584; Gr. Northern Ry. Co. v. Kasischke, 104 F. 440, 43 C. C. A. 626; Meyer v. Haas, 58 P. 1042, 126 Cal. 569; Judgment, 85 Ill.App. 407, affirmed; Pioneer Cooperage Co. v. Romanowicz, 57 N.E. 864, 186 Ill. 9; Indiana, D. & W. Ry. Co. v. Fowler, 103 Ill.App. 565, judgment affirmed, 66 N.E. 394, 201 Ill. 152, 94 Am. St. Rep. 158; Ballard v. Chicago, R. I. & P. Ry. Co., 70 Mo.App. 108; I. & G. N. R. Co. v. Shuford, 81 S.W. 1189, 36 Tex. Civ. App. 251; Wiallet v. Consolidated Ry. & Power Co., 84 P. 496, 30 Utah 260, 5 L. R. A. (N. S.), 663; Bjorklund v. Seattle El. Co., 77 P. 727, 35 Wash. 439; C. R. I. & P. Ry. Co. v. Lewis, 109 Ill. 120; Vaillancourt v. Grand Trunk Ry. of Canada, 74 A. 99, 56 A. & E. R. R. Cases, new series, page 363; St. L., I. M. & S. Ry. Co. v. Hambright, 113 S.W. 803, 54 A. & E. R. R. Cases, new series 283; St. L. & S. F. R. Co. v. Richards, 102 P. 92, 54 A. & E. R. R. Cases, new series, 575; R. R. Co. v. Cleary, 19 N.Y.S. 951; R. R. Co. v. Arnett (Ala.), 34 So. 414; R. R. Co. v. Brewer (Ky.), 52 A. & E. R. R. Cases, new series, 634; Hayes v. A. & C. A. L. Ry. Co., 10 A. & E. Cases Annotated, 737; Hearn v. Hearn, 53 A. 95, 24 R. I. 328; Hot Springs Ry. Co. v. McMillan, 88 S.W. 846, 76 Ark. 88; Mo. P. Ry. Co. v. Goodholm, 60 P. 1066, 61 Kan. 758; Bliss v. N.Y. C. & H. R. R. Co., 160 Mass. 447, 36 N.E. 65, 39 Am. St. Rep. 504. See note also; (Civ. App. 1901) I. & G. N. R. Co. v. Harris, 65 S.W. 885, judgment affirmed (Sup. 1902), 67 S.W. 315, 95 Texas, 346; Houston & T. C. R. Co. v. Brown, 69 S.W. 651; Jones v. Gulf C. & S. F. Ry. Co., 73 S.W. 1082, 32 Tex. Civ. App. 198; Galveston H. & S. A. Ry. Co. v. Cade, 93 S.W. 124; St. L., I. M. & S. Ry. Co. v. Phillips, 66 F. 35, 13 C. C. A. 315; Mateer v. Mo. Pac. Ry. Co., 15 S.W. 970.

In conclusion on this point, let us repeat that the fraud which is clearly and sufficiently alleged in the second replication to each of the special pleas of defendant, consists in the making of false statements and assurances to plaintiff by the defendant, which the defendant, at the time they were made, did not intend to keep or perform, and which were made solely for the purpose of procuring, at that time, a settlement and release of plaintiff's claims against defendant; the fact that these assurances were implicitly relied upon and believed by plaintiff, as defendant then and there well knew, and the fact that the defendant knew that plaintiff would not have accepted any money whatever but for his reliance upon the statements and promises of the defendant, false when made and which the said defendant never intended honestly and fairly to live up to. Second, the conduct of defendant in throwing plaintiff off his guard as to the character of paper which he was called upon to sign, by language and conduct construed by the plaintiff, and which he had a right to construe, as meaning that the paper handed him for his signature was simply his receipt for the money about to be paid him and nothing more, and this at a time when he had not recovered from his injuries nor from the effects of the drugs that had been given him.

Nothing contained in either of these replications constitutes any estoppel against plaintiff. The fact that he accepted such employment as was given him, does not militate against his right to set the release and compromise aside for fraud. The plea sufficiently shows that he was induced to take what was offered to him because of assurances held out to him that ultimately and in due season employment of the character promised and at the compensation agreed upon would be given him. But even if we assume for the sake of argument that his acceptance of the employment given him estopped him to demand different employment at the highest price, he was finally discharged and all employment of every sort taken away from him. This so-called estoppel, if available for any purpose, would be effective only to minimize the amount of damages which he might claim on account of the breach of the contract, and only in a suit upon the contract.

It is possible that we may have wearied the court by multiplying authorities, but it seemed to us that after stating the question at issue, we could present it in no better way than to furnish your honors with a citation to, and quotations from, practically all the American cases on the subject under consideration.

B. E. Eaton, for appellee.

We submit that, under well recognized principles of law, all allegations of fraud must be supported by a statement of the particular facts relied upon as constituting fraud, and if the facts set forth do not constitute fraud then notwithstanding the pleader has charged fraud as the legal conclusion, the court will determine the question of law from the allegations of facts. It is no longer sufficient to say that a matter was fraudulently done. The facts alleged to constitute fraud must determine that question. Title v. Bonner, 53 Miss. 578; Ross v. Duncan, Fr. Chancery Rep. 587; Bush v. Vail, 2 Miss. 5-19.

It then becomes necessary to review the facts in their relation to the allegations of fraud. In doing this, we take the statement of facts set out in the two replications charging fraud which, as before stated, are the same as those charging a failure of consideration. The only difference is, that it is charged that the defendant did not intend in good faith, to comply with its acceptance of plaintiff's offer of settlement, but accepted in order that plaintiff may be lulled into the execution of a release. Hobbs v. The Brush Electric Co., 75 Mich. 550; Shaffer v. Cowden, 88 Md. 394; Spitz v. B. & O. R. R. Co., 32 Am. St. Rep. 378; 34 Cyc. 1056; Welch v. R. R. Co., 70 Miss. 20; Jones v. R. R. Co., 72 Miss. 22; Howie v. Platt et al., 85 Miss. 15; Sistrunk case, 54 So. 89.

Counsel for appellant in the Chiles Case, 86 Miss. 361, do not state the full facts upon which the release was nullified. The full statement is as follows: "The same gross deception was used, intangible promises of permanent employment, imposition upon a suffering and ignorant claimant, insistence upon immediate settlement urged by his former employer; lack of opportunity granted with friends or counsel; grossly inadequate payment for the injury inflicted, in this case being only the paltry sum of ten dollars; and specious and nonenforceable contract of re-employment, which expressly recited that such service should be "for such time only as may be satisfactory to said company." All these circumstances of fraud and oppression exist, coupled in the instant case with a transparent attempt to take advantage of and ignore the attorney who had been employed, and to clandestinely effect a settlement without his knowledge or consent, after first advising with him and promising to investigate and take up the claim for adjustment. The appellant company was fully advised that a contract of employment existed between appellee and his counsel, by notice both to its legal and claim departments, and cannot evade the legal effect of such notice by claiming that some subordinate official in the claims department settled the same and procured the release admittedly for the sole benefit, but without the knowledge or procurement of the corporation, especially in view of the fact that the record...