Hahs v. Cape Girardeau & Chester Railroad Company
| Decision Date | 08 March 1910 |
| Parties | THEODORE J. HAHS, Respondent, v. CAPE GIRARDEAU & CHESTER RAILROAD COMPANY and THE CHESTER, PERRYVILLE & STE. GENEVIEVE RAILWAY COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.
REVERSED AND REMANDED AS TO CHESTERVILLE, PERRYVILLE AND STE GENEVIEVE RAILWAY COMPANY.
REVERSED AS TO CAPE GIRARDEAU AND CHESTER RAILROAD COMPANY.
Giboney Houck, R. G. Ranney and Benson C. Hardesty for appellants.
(1) The court erred in overruling the objection to the admission of any evidence and in overruling the motion for judgment on the pleadings, and in overruling the motion in arrest. A full release and quittance of plaintiff's cause stood confessed in the pleadings. (a) A full release and quittance was pleaded and described in the answer and it stood confessed as it was pleaded and described. Sec. 746, R. S 1899; Johnson v. Sov. Camp W. O. W., 119 Mo.App. 98; State to use v. Chamberlin, 54 Mo. 338; Love v Life Ins. Co., 92 Mo.App. 192; Campbell v. Harrington, 93 Mo.App. 322; McGill v. Wallace, 22 Mo.App. 683; Bates v. Scheik, 47 Mo.App. 642. (b) Furthermore, the release itself showed on its face that it was a full quittance of the cause and a valid instrument within the scope and meaning of said section 746. 9 Cyc. 577, 579, 584, 585, 586; Donnell Mfg. Co. v. Repos, 75 Mo.App. 420; Bonnewell v. Nels Jacobson, 5 L.R.A. (N. S.) 436 (Iowa); Monmouth Park Ass'n v. Wallace Iron Works, 19 L.R.A. 456; Ferry Company v. Railroad, 128 Mo. 224; Horn v. Hausen, 22 L.R.A. (Minn.) 617; Puff v. Puff, 104 S.W. 332; Rowland v. St. L. & S. F. R. R. Co., 124 Mo.App. 605; Squires v. Amherst, 145 Mass. 192; Tanner v. Merrill, 31 L.R.A. (Mich.) 171; Earle v. Berry, 1 L.R.A. (N. S.) 867; Indianapolis R. Co. v. Houlihan, 54 L.R.A. 737; Paris Mfg. Co. v. Carle, 92 S.W. 748; Railroad v. Craig, 98 S.W. 907. (c) No defense was pleaded to said release. Sec. 604, 607, 609 R. S. 1899; Kellerer v. Henderson, 203 Mo. 511; Richey v. Insurance Co., 98 Mo.App. 124; Smith v. Rembaugh, 21 Mo.App. 390; Johnson v. Sov. Camp W. O. W., 119 Mo.App. 98; Thomas v. Life Ins. Co., 73 Mo.App. 374; Wells v. Hobson, 91 Mo.App. 389; Merrill v. Trust Co., 46 Mo.App. 236; Saville v. Hoffstetter, 63 Mo.App. 273. (2) The court erred in admitting testimony as follows: (a) Testimony which tended to deny the execution of the release pleaded in the answer. (See point 7, Subdivision (1) and authorities cited thereunder); Smith v. Rembaugh, 21 Mo.App. 390. (b) Testimony tending to show that the release had been fraudulently procured. No fraud had been pleaded in the replication or elsewhere. (See point 7, Sub. Div. (2) and authorities cited thereunder); State ex rel. v. Stuart, 111 Mo.App. 498; Wojtylack v. Coal Co., 188 Mo. 293; Rowland v. Railroad, 124 Mo.App. 605; Kerr on Fraud and Mistake p. 365, sec. 8. No return or offer to return the consideration paid plaintiff for said release had been pleaded, nor had it been shown in evidence; the evidence showed the reverse. 18 Ency. Pl. and Pr., p. 829-835; Edwards v. Morris, 1 Ohio 524; Godding v. Decker, 3 Colo.App. 198; Reddish v. Smith, 10 Wash. 178; Robertson v. Fuller Constr. Co., 115 Mo.App. 465; Lomax v. Railroad, 119 Mo.App. 192; Althoff v. St. Louis Transit Company, 204 Mo. 166; McNealey v. Baldridge, 106 Mo.App. 11; Retzer v. Dodd P. Co., 58 Mo.App. 270; Och v. Railroad, 130 Mo. 27; Kingman-Moore I. Co. v. Ellis, (Mo.) 103 S.W. 127; Saulsbury v. Brown, P. B. & Co., (Ark.) 104 S.W. 257; Cobb v. Hatfield, 46 N.Y. 533; Ins. Co. of N.Y. v. Howard, 111 Ind. 544; Railroad v. Hayes, 83 Ga. 558; Gould v. Bank, 86 N.Y. 75. (3) As to defendant Cape Girardeau & Chester R. Co., said demurrer should have been sustained for the still further reason that the evidence showed plaintiff wes never in the service of said defendant. Sec. 1060, R. S. 1899; Thomas v. Railroad, 101 U.S. 83; Miller v. Railroad, 125 N.Y. 123; 2 Wood on Railways, sec. 325, p. 1338; Hoff v. Railroad, 14 F. Rep. 558; Arrowsmith v. Railroad, 57 F. Rep. 165; Railroad v. Curl, 28 Kansas 622; Mahoney v. Railroad, 63 Me. 69; Nugent v. Railroad, 80 Me. 62; Markey v. Railroad, 185 Mo. 348; Moorshead v. United Ry. Co., 203 Mo. 121. (4) The petition fails to state a cause of action v. Cape Girardeau & Chester R. Company. Plaintiff pushes himself out of court by alleging that both defendants are domestic corporations, and that Cape Girardeau & Chester R. Co., had leased the road to Chester, Perryville & Ste. Genevieve Ry. Co. and was not operating same, but that same was being operated by said Chester, Perryville & Ste. Genevieve Ry. Co. See cases cited under sub. div. (3) of Point 3, supra); Hoffman v. McCracken, 168 Mo. 343; Megher v. Stewart, 6 Mo.App. 498.
Edw. D. Hays for respondent.
(1) There was no verbal agreement that plaintiff would release defendants from liability for damages if replaced on the pay roll; nor was there any such written agreement embodied in the receipt signed at the time the $ 12.50 was paid. The money was paid and received for another purpose. It would have been unjust to deduct from plaintiff's damage claim the $ 12.50 paid for another purpose. Instruction number eight was properly given. R. S. 1899, sec. 654. The receipt for time allowed, not being a release, did not extinguish the pre-existing right to damages. Accord and satisfaction for time allowed does not bar recovery for damages. Plaintiff is not seeking to rescind any agreement actually made. 1 Cyc., p. 308; 19 Am. and Eng. Ency. Law (1 Ed.), 1113. (2) The court properly overruled motion for judgment on the pleadings; and properly overruled demurrer to the evidence; and properly gave instructions one, five and seven, for plaintiff. The only penalty for failing to plead non est factum is a confession of the "Instrument." R. S. 1899, sec. 746. Confession does not enlarge the vigor of the writing. A receipt, though expressed to be in full of all demands, has no contractual elements, but is open to parol explanation, and at most is but prima-facie evidence of the facts stated. It has no such sanctity as to make it conclusive if good reason appears for holding otherwise. Ireland v. Spickart, 95 Mo.App. 53; Aull v. Trust Co., 149 Mo. 1. Under a general denial the defending party may show that the instrument has been materially altered since delivery. 9 Cyc., pp. 734-735. (3) A release of one joint wrongdoer "Executed before trial" does not relieve the other joint wrongdoer unless such release is specially pleaded. The Cape Girardeau and Chester Railroad Company did not so plead. Release must be specifically pleaded by defendant seeking its benefit to avoid the plaintiff's right to controvert the same under general denial. 1 Cyc., pp. 341-346. (4) A lessor is liable for the acts of the lessee railroad. Instruction number four was properly given; defendants are wrong in their contention that a demurrer to the evidence should have been sustained on account of plaintiff being an employee of the lessee company; the general statutes fix this liability. R. S. 1899, sec. 1060; Brown v. Railroad, 27 Mo.App. 394; McCoy v. Railroad, 36 Mo.App. 445; Price v. Railroad, 70 Mo.App. 175; St. Clair v. Railroad, 70 Mo.App. 589; Markey v. Railroad, 185 Mo. 348; Dean v. Railroad, 199 Mo. 398. (5) Defendants cannot shield themselves behind thir own fraud. The evidence is strongly conclusive that after the receipt was signed it was tampered with and interlined. Cottriell v. Krum, 100 Mo. 397; Judd v. Walker, 114 Mo.App. 128. The rule is now firmly established that any alteration of a paper without the consent of all parties vitiates the writing. 9 Cyc., p. 635; Morrison v. Garth, 78 Mo. 434; Higgins v. Harvester Co., 181 Mo. 300.
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 R. R. Co., 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 Ry. Co., 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 Ry. Co., lessee, was operating over the tracks of the Cape Girardeau & Chester R. R. Co., 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 Ry Co., the lessee, as a section hand, he was injured through the derailment of a box car in which he and other section men were being transported by that company over the tracks of the other defendant, The Cape Girardeau & Chester R. R. Co., 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, Cape Girardeau, Perryville & Ste. Genevieve Ry. Co., 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...
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