Green v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 30 April 1923 |
| Citation | 251 S.W. 931,213 Mo.App. 583 |
| Parties | MARGARET GREEN, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County.--Hon L. A. Vories Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Miles Elliott and Duvall & Boyd, for respondent.
H. J Nelson, J. A. Lydick, J. G. Trimble and E. M. Spencer for appellant.
This is a personal injury suit. Plaintiff, a woman about fifty-nine years of age and weighing approximately 204 pounds, was alighting from one of defendant's passenger trains at its station at Quincy, Ill on April 26, 1921. It was raining and the station platform was wet. After the train had come to a stop, plaintiff undertook to alight therefrom and, according to her testimony, she was the second person to leave the train. Defendant's testimony is to the effect that several persons had preceded her in alighting from the train.
The platform was flush with the top of the track rail and the brakeman placed the foot-box on the platform for the use of passengers in descending the steps of the coach. Plaintiff testified that when the man immediately ahead of her stepped on the foot-box, "it kind of turned under the coach step," "was kind of tilted like," or "slipped and went under a little bit," so that only part of it extended out beyond the coach step, leaving a limited surface of the foot-box upon which plaintiff could step. When plaintiff noticed this she hesitated while on the coach step, and the brakeman called to her to "come on, come on!" Whereupon she handed her traveling bag to the brakeman and proceeded to step from the lower coach step onto the foot-box, and when she stepped on the box it went from under her and she fell and was injured. She was taken into the ladies' waiting room at defendant's station, and in about ten minutes thereafter was sent to Blessing Hospital in Quincy where she remained for twelve days and was then discharged and proceeded to her destination. The injury occurred on Thursday and on the following day she was visited by one L. P. Hill, a claim agent for defendant company. While in the hospital plaintiff was attended by Dr. W. H. Baker, a surgeon for the defendant company. On Monday following the accident, the claim agent Hill again called upon plaintiff at the hospital, having with him a release, previously prepared, excepting the space for the amount to be filled in, which was left in blank.
At this point the testimony diverges, defendant contending that the instrument presented to, and signed by plaintiff for the payment of $ 100 was a release of all claims, while plaintiff insists that she understood it to be a receipt for money given her for part payment of her hospital expenses, and that the claim agent so stated. Also defendant insists that the instrument was correctly read to plaintiff in the presence and hearing of plaintiff's nurse. Plaintiff charges that because of her deafness and suffering from pain, she was unable to hear and understand the purport of the instrument signed by her. The document in question was introduced in evidence and on its face it is a release by plaintiff of all claims against the defendant on account of said injury.
On being released from the hospital, plaintiff proceeded to the home of her daughter at Lakenan, Mo., and while there was visited by one of her counsel and a contract of employment was entered into between them for the institution of this suit. Plaintiff afterwards visited St. Joseph, Mo., and on May 19, 1921, this suit was filed in the circuit court of Buchanan County.
The petition charges negligence in that "defendant, its agents, servants and employees had so carelessly and negligently placed said box, step and stool and said box and stool was so insecure and defective that when plaintiff stepped on the same the said box, step and stool slipped and turned and caused plaintiff to be thrown with great force and violence against and upon the platform of defendant's station. . . ." The petition further charges fraudulent intent on the part of defendant in procuring plaintiff's signatures to the purported release. Judgment was asked in the sum of $ 30,000.
The amended answer admits the corporate status of defendant; that plaintiff was a passenger on one of defendant's trains, and that she fell and was injured on the date and at the place mentioned in the petition, and generally denies all other allegations of the petition; enters a plea of contributory negligence, and sets up the release above referred to, and especially denies that in making said settlement defendant made any effort to cheat, wrong, or defraud plaintiff and denies that it did so wrong and defraud her.
The reply was a general denial.
At the close of plaintiff's evidence, and again at the close of all the evidence, the court refused to sustain demurrers offered by defendant. The case was submitted to the jury, resulting in a verdict and judgment for plaintiff in the sum of $ 4000. After unsuccessful motions for a new trial and in arrest, defendant appeals.
For its first assignment of error, defendant charges (1) that the suit was prematurely brought; (2) that there was no evidence of fraud in procuring the release, and (3) that plaintiff was guilty of such contributory negligence as to be a bar to her recovery. The first of these charges is based upon the fact that plaintiff failed to tender refundment of the $ 100 paid her by defendant prior to the bringing of the suit.
In support of the rule to the effect that tender must be made before suit is brought, defendant cites Reed v. John McGill & Sons, 212 S.W. 43, l. c. 45. Plaintiff's evidence was that the claim agent told her that the paper she signed was a receipt for part payment of the hospital bill, that she was suffering so she could not read the paper and could not hear as the agent read it; that she believed what the claim agent said about it, and that she understood it was a receipt she was signing.
In passing upon a demurrer, the trial court must accept plaintiff's testimony as true. This rule is so well established as to require no citations. Counsel for plaintiff insist, and we think properly, that it is well established by the authorities that under such facts and circumstances, there was no meeting of minds on the contract of settlement, or release, and that therefore no tender was necessary.
We think this question was properly decided in the case of Malkmus v. St. Louis Portland Cement Co., 150 Mo.App. 446, 131 S.W. 148. In that case, as in this, the suit was for personal injuries and defendant set up a release. Plaintiff alleged he did not release his cause of action and that although defendant paid him $ 65 at the time in question, he executed only a receipt therefor, and that the $ 65 was a present from defendant to remunerate plaintiff for the amount of wages lost by him. The court held:
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