Hahs v. Cape Girardeau & C. R. Co.

• Citation: 147 Mo. App. 262,126 S.W. 524
• Parties: HAHS v. CAPE GIRARDEAU & C. R. CO. et al.
• Decision Date: 08 March 1910
• Court: Court of Appeal of Missouri (US)

126 S.W. 524

147 Mo. App. 262

HAHS v. CAPE GIRARDEAU & C. R. CO. et al.

St. Louis Court of Appeals. Missouri.

March 8, 1910.

1. EVIDENCE (§ 408) — PAROL EVIDENCE — RELEASE — CONTRADICTION.

Where the words "in full release of all damages sustained March 31, 1906," were written on a pay roll above plaintiff's signature, and plaintiff, in consideration thereof, was paid a sum of money, such writing was not only a receipt, but also a release of plaintiff's right of action; and, in the absence of pleadings properly repudiating its execution, could not be contradicted by parol.

2. PLEADING (§ 291) — VERIFICATION — "INSTRUMENT IN WRITING" — EXECUTION — DENIAL.

Where plaintiff signed a pay roll, and over his signature appeared the words "in full release of all damages sustained March 31, 1906," such writing constituted an instrument in writing within Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), providing that, when any pleading is founded on any instrument in writing, its execution shall be adjudged confessed, unless denied by a verified pleading, and section 643 (Ann. St. 1906, p. 662), declaring that, when a pleading is founded on any written instrument, it shall be filed with the pleading, and hence, such instrument having been properly pleaded in the answer and plaintiff not having denied its execution under oath, he was not entitled to prove that it was a forgery.

3. PLEADING (§ 291) — WRITTEN INSTRUMENTS — STATUTES.

Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), providing that a written instrument pleaded shall be deemed confessed unless denied by a verified pleading of the opposite party, does not apply to instruments signed by both parties.

4. APPEAL AND ERROR (§ 1050) — HARMLESS ERROR — ADMISSION OF EVIDENCE.

Where, notwithstanding plaintiff failed to deny in his answer the execution of a release properly pleaded, and therefore admitted its execution, as provided by Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), the court erroneously admitted evidence showing that the words of release were written on defendant's pay roll after plaintiff had signed it, and that the release was in fact a forgery, a judgment for plaintiff will be reversed, and the cause remanded in the interests of justice.

5. RAILROADS (§ 259) — LEASES — LIABILITY OF LESSOR.

The general rule that an incorporated railroad company may not lease its property and franchises to another, and escape liability resulting from the operation of its road, does not obtain when legislative authority is obtained for the railroad lease without reserving the liability of the lessor.

6. RAILROADS (§ 259) — LEASES — LIABILITY OF LESSOR.

It is only where a domestic railroad company leases its road to a foreign corporation that Rev. St. 1899, § 1060 (Ann. St. 1906, p. 915), continues a liability against the lessor for the negligence of the lessee in the operation of the property.

7. RAILROADS (§ 259) — "LEASE" — NATURE OF LEASE.

The word "lease," as used in Rev. St. 1899, § 1060 (Ann. St. 1906, p. 915), authorizing railroad leases, contemplates such an instrument as divests the lessor of possession and control and places the same in the lessee to the exclusion of the lessor, possessing all the qualities and incidents of a lease at common law between landlord and tenant.

8. LANDLORD AND TENANT (§ 150) — REPAIRS — LANDLORD'S LIABILITY.

At common law, in the absence of a covenant in a lease, the landlord, having delivered the demised property in a sound state of repair was neither liable to make repairs during the term nor entitled to enter the premises for that purpose.

9. RAILROADS (§ 259) — LEASES — DISREPAIR — LANDLORD'S LIABILITY.

The rule that a landlord, in the absence of a covenant to do so, is under no obligation to make repairs, is applicable to leases of railroads; so that the lessor, in the absence of a covenant to repair, is not liable for injuries sustained by employés of the lessee company by the latter's negligence in failing to keep the track in proper repair.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Theodore J. Hahs against the Cape Girardeau & Chester Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed as to the Cape Girardeau & Chester Railroad Company and such company discharged, and reversed and remanded as to the Chester, Perryville & Ste. Genevieve Railway Company.

Giboney Houck, R. G. Ranney, and Benson C. Hardesty, for appellants. Edw. D. Hays, for respondent.

NORTONI, J.

This is a suit for damages accrued to the plaintiff through the alleged negligence of the defendants. Plaintiff recovered, and both defendants appeal.

The defendants are domestic corporations; that is to say, they are each railroad companies incorporated and existing under the laws of this state. They own connecting lines of railroads in southeast Missouri. The defendant Cape Girardeau & Chester Railroad Company owned the railroad on which the plaintiff received his injury. It was being operated, however, at the time by the other defendant, the Chester, Perryville & Ste. Genevieve Railway Company, in whose employ the plaintiff was engaged as a laborer on its section. It is conceded throughout the case that the Chester, Perryville & Ste. Genevieve Railway Company, lessee, was operating over the tracks of the Cape Girardeau & Chester Railroad Company, lessor, under a competent lease authorized by the statutes of the state, which in no manner reserved a liability against the lessor company for the torts of the lessee.

While the plaintiff was in the employ of the defendant Chester, Perryville & Ste. Genevieve Railway Company, the lessee, as a section hand, he was injured through the derailment of a box car in which he and other sectionmen were being transported by that company over the tracks of the other defendant, the Cape Girardeau & Chester Railroad Company, lessor. The plaintiff and his companions in charge of their foreman had been engaged during the day in work extra of their regular employment at a point on the railroad several miles distant from the section on which he was employed, and, having finished the day's labor, was being transported homeward by his employer, the defendant Chester, Perryville & Ste. Genevieve Railway Company, over a portion of the tracks owned by the other defendant, the lessor company. The men were all in an empty box car being propelled backwards by a locomotive engine owned by his employer, the lessee company. Upon approaching a trestle over a ravine on the road of the Cape Girardeau & Chester Railroad Company, the lessor, the box car was derailed because of a defect in the lessor's tracks adjacent to the trestle. As a result of the derailment, plaintiff was precipitated against the side of the car, which resulted in dislocating his shoulder and inflicting some other slight bruises. The particular negligence relied upon for a recovery relates to the defective track mentioned. The proof shows that the roadbed had settled considerably at the point where the railroad dump abuts the north end of the trestle, and that within a space of about 5 feet the incline from the railroad dump to the end of the trestle was about 14 inches. Besides, on one side of the track at this point there was a joint in the rails, which appears to have been sunken more than the rail on the opposite side. The box car, moving at the rate of about eight miles an hour, upon reaching the point mentioned, was derailed because of the low joint and the sharp and extensive incline in the track adjacent to the trestle. There is no complaint whatever as to a defective car or as to the mode or manner in which the car or locomotive was being operated. The charge of negligence relates solely to the defect in the track of the lessor, and it appears that the track had thus become defective while in the possession and under the control of the lessee. While the lease itself is not before us, there is nothing in the record indicating that the lessor company covenanted to maintain or repair the tracks or roadway. All that appears as to this matter is to the effect that the lessee had been operating the road for a considerable period of time under the lease, and that it had from time to time been making repairs on the leased road as though the obligation to do so rested upon it and not upon the lessor.

The defendants answered separately. Among other things, the Chester, Perryville & Ste. Genevieve Railway Company — that is, the lessee, or operating company — admitted the plaintiff's injury, and pleaded an accord and satisfaction of the cause of action stated in the petition. In other words, it pleaded a full acquittance and release executed by the plaintiff in writing on the 19th day of May, 1906, wherein it is recited plaintiff accepted $12.50 from defendant, and, in consideration thereof, executed a release on its pay roll of the cause of action sued on as follows: "In full release of all damages sustained March 31, 1906," — and signed and delivered the same to the defendant by affixing his signature to line 16 of its pay roll opposite the words quoted. This defendant also filed the original page of its pay roll relied upon, containing the release of the plaintiff's cause of action mentioned, which page and line 16 thereof evinced in writing that plaintiff had received on the date mentioned $12.50 "in full release of all damages sustained March 31, 1906. [Signed] Theodore Hahs." The defendant Cape Girardeau & Chester Railroad Company, the lessor, answered by a general denial, specially denied that plaintiff was in its service at the time he was injured, and pleaded, further, that it had long prior to that date leased its railroad to the other defendant, the Chester, Perryville & Ste. Genevieve Railway Company, who was in full possession of and operating the same at the time plaintiff received his injury. To each of these answers the plaintiff filed a general denial only without...