Davis v. Howell, 5017.
| Citation | 52 S.W.2d 423 |
| Decision Date | 22 August 1932 |
| Docket Number | No. 5017.,5017. |
| Parties | DAVIS v. HOWELL |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Phelps County; J. H. Bowron, Judge.
"Not to be officially published."
Action by Walter Davis against Albert Howell. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Hiett, Lamar & Covert, of Houston, for appellant.
John P. Moberly, of Houston, and L. H. Breuer, of Rolla, for respondent.
This is an action for damages for injuries resulting to plaintiff from being struck by an automobile driven by defendant. The verdict and judgment were in favor of plaintiff, and defendant appealed.
At the first trial of this case, the court sustained a demurrer to plaintiff's evidence. The petition asked for damages in the sum of $15,000, which placed appellate jurisdiction in the Supreme Court. Plaintiff appealed to that court, which reversed and remanded the case, holding that defendant's demurrer to plaintiff's evidence should have been overruled. Davis v. Howell, 324 Mo. 1227, 27 S.W.(2d) 13. Upon another trial plaintiff recovered $1,750, and defendant appealed to this court.
Before the last trial the defendant filed an amended answer in which a release of defendant from liability for damages executed by plaintiff was pleaded. In reply plaintiff alleged that the release was without consideration; was procured by fraud; and that at the time plaintiff signed it his mind was in such condition as to render him incapable of understanding and appreciating the nature and character of the document.
Counsel for appellant state in their brief that "we concede that the judgment in this case should be affirmed unless the plaintiff is bound by the release he signed the morning after the accident and the giving and refusing of instructions in relation to said release."
That concession on the part of appellant relieves us of consideration of all questions relative to the original liability of defendant, and we shall consider the release only. The accident occurred on a public highway four and one-half miles south of Houston, in Texas county at about 10 o'clock p. m. Plaintiff was hauled to his own home in Houston, and suffered greatly from his injuries. Early the next morning the defendant appeared at the home of plaintiff, and the release now relied upon was there signed by plaintiff. The release was read to plaintiff by his wife before he signed it. The claim of plaintiff is that defendant represented to him that some parties were talking about him suing defendant, and he wanted plaintiff to sign this paper so he could take it with him and collect some money for plaintiff from their friends in town. Plaintiff testified that he did not know that he was signing a release, and did not intend to release defendant from liability. Defendant denied that he made the statements which plaintiff contended he had made.
The first question for us to determine is whether such a fraud was practiced upon plaintiff in securing his signature to the release as will permit him to avoid its effect. The general rule is well established in this state that, where there is no imposition, duress, undue influence, or trickery of any kind to induce a party to sign a release, and he reads the release or it is read to him by some one on whom he has the right to rely to read it correctly, and he then executes it, he cannot afterward be heard to say that he did not know that it was a release when he signed it. Woosley v. Wells (Mo. Sup.) 281 S. W. 695, 701; Anderson v. Drug Co., 149 Mo. App. 554, 573, 130 S. W. 829; Ensler v. Smith, 324 Mo. 530, 23 S.W.(2d) 1034, 1037.
In this case the release was read to plaintiff by his wife before he signed it, so, if he were then sui juris and had sufficient understanding to know what the release meant, he is bound by it. In our opinion, the question of fraud based upon misrepresentations inducing the execution of the release should not have gone to the jury.
On the question of plaintiff's ability to understand what the release meant when it was read to him by his wife, the evidence for plaintiff was in substance as follows: Plaintiff was hurt at about 10 o'clock at night, and after that he was hauled four and...
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