Dungan v. Iowa Cent. R. Co.
| Decision Date | 22 October 1895 |
| Citation | 64 N.W. 762,96 Iowa 161 |
| Parties | JEMIMA M. DUNGAN, Administratrix of the Estate of ABEL E. DUNGAN, Deceased, Appellant, v. IOWA CENTRAL RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--HON. D. RYAN, Judge.
This action was commenced by Abel E. Dungan to recover for personal injuries alleged to have been sustained while a passenger on one of defendant's trains, because of the negligence of defendant's employes in not permitting the train to remain stopped long enough for him to alight therefrom at the place of his destination, and because of starting said train with a sudden jerk, and because there was no chain or rope between the guard rails on the rear platform of the car on which he was riding. The defendant answered denying generally, and alleging that for value received Abel E. Dungan settled with the defendant in full of all damages growing out of said accident, and released and discharged the defendant from all liability therefor. The plaintiff replied admitting said settlement and release, and alleging that the same was obtained by fraud, when he was in an insensible and unconscious condition, and incompetent to transact business. Able E. Dungan having died pending the action, his administratrix was substituted as plaintiff. She amended alleging the death of Mr. Dungan, and that he died from the injuries thus received, which were received without fault or negligence on his part. At the conclusion of the evidence on behalf of the plaintiff, the defendant moved for a verdict upon the following grounds: That the evidence fails to show that defendant was guilty of negligence; that it does show that plaintiff's intestate was guilty of contributory negligence; that it fails to show that there was any fraud in making said settlement, or that plaintiff's intestate was not capable of entering into said contract of settlement that it "shows that both plaintiff's intestate and plaintiff have fully ratified said settlement, since the making thereof, by keeping the money, and failing to either pay or tender the same back within a reasonable time, or before the commencement of this action," and that upon the whole evidence the plaintiff cannot recover. Pending the hearing of said motion, defendant filed an amendment to its answer, averring that said contract of settlement was fully ratified by Abel E. Dungan and by the plaintiff, with full knowledge of all the facts, by keeping and retaining said money, and not paying or tendering the same to defendant. Plaintiff amended her reply by denying every allegation contained in defendant's answer, adopting the allegations of the reply theretofore filed, and offering to pay to defendant the money received on said settlement. The record further shows that, after the court had announced its ruling sustaining defendant's motion for verdict, the plaintiff asked and was given leave to amend her reply, as already stated, and that thereupon, and as one of the jurors was about to sign the verdict for defendant, plaintiff, by one of her attorneys, offered to the attorney for the defendant twenty-five dollars, as a rescission of the contract of settlement, and that at the same time, plaintiff's amendment to her reply was presented. The tender was declined, and plaintiff asked leave to introduce evidence of said tender. The court declined to recognize such tender, and directed the jurors to sign the verdict, which was done. Judgment was rendered on the verdict against the plaintiff, and plaintiff appeals.
Affirmed.
Bolton & McCoy and Lacey & Lacey for appellant.
A. C. Daly and L. C. Blanchard for appellee.
I.
Appellee's motion for a verdict was upon the following...
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