Hannah v. Butts

• Decision Date: 11 February 1929
• Citation: 14 S.W.2d 31,222 Mo.App. 1098
• Parties: H. K. HANNAH, RESPONDENT, v. E. AARON BUTTS, APPELLANT. [*]
• Court: Kansas Court of Appeals

14 S.W.2d 31

222 Mo.App. 1098

H. K. HANNAH, RESPONDENT, v. E. AARON BUTTS, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

February 11, 1929

Appeal from the Circuit Court of LaFayette County.--Hon. Robert M Reynolds, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Burrus & Burrus and Mosman, Rogers & Buzard for respondent.

Lyons & Ristine for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 7500, and the defendant has appealed.

The facts show that plaintiff, a farmer living about three miles west of Odessa, was injured about 3:20 P. M. of Thursday, December 2, 1926, while he was riding in a farm wagon westwardly on United States Highway No. 50 and about two miles west of that city. He was driving his wagon along the paved portion of the highway, the pavement being eighteen feet in width.

Plaintiff testified that he saw two automobiles coming from the west and an automobile approaching from the east. At this time he was driving on the right-hand side of the pavement with two mules hitched to the wagon, with a third mule tied to the team and abreast and to the right thereof. On seeing these automobiles approaching he turned his mules and wagon so that the right wheels of the wagon were off of the pavement. Defendant in his automobile approached plaintiff from the rear at a rate of speed of from forty to fifty miles per hour. The automobile struck plaintiff's wagon, throwing him to the pavement and resulting in plaintiff receiving severe injuries.

The evidence shows that defendant was a resident of the State of Oklahoma but was residing temporarily in Kansas City. He was an oil operator and was engaged in "taking up leases" around Odessa. He would go to Odessa in the morning and return to Kansas City at night in his automobile. Defendant testified that he was blinded by the lights of the two cars approaching from the opposite direction and did not see plaintiff until almost the instant of the collision, when he applied his brakes. This was immediately before the collision. We judge from the evidence that there could have been scarcely any slackening of the speed of his car before it hit the wagon. Plaintiff was immediately taken to his home and three doctors were called. He had a scalp wound on top of his head one and one-half or two inches long. Three or four stitches were taken in order to sew up this wound. He had an injured back, neck and right hand. X-ray pictures were subsequently taken which showed a breaking off of the lateral process of the 5th and 6th cervical vertebrae. The pictures also indicated that a ring of bone surrounding the spinal cord was broken. He had what is termed a spinal cord lesion. One of the physicians testified that the X-ray indicated plaintiff had "what is known as a fracture of the spine or a broken neck." He had a paralysis of the right leg and arm. He had a sensory paralysis of the left side and motor paralysis of the right side.

The answer, among other things, pleaded a release of plaintiff's cause of action. It was alleged that a release was executed on December 4, 1926, wherein, in consideration of the sum of $ 165 paid to plaintiff, he released defendant from all claims and damages on account of the injuries sustained by him. The reply was a general denial and, in addition, it alleged that the release was signed when plaintiff was totally paralyzed and unconscious; that it was negotiated by one Morgan, a claim agent or adjuster for an indemnity insurance company, who came to plaintiff's home and tendered to his wife the sum of $ 165 as a part payment on what was owing by defendant to plaintiff on account of plaintiff's injuries; that said Morgan falsely and fraudulently represented to plaintiff's wife that she was signing a receipt for said sum; that Morgan represented that his company would pay plaintiff an additional sum that would reasonably compensate plaintiff for his injuries and that said payment did not constitute a full settlement of plaintiff's claim against the defendant; that at that time Morgan was acting as the agent of defendant and the insurance company. Plaintiff further alleged his wife had no authority to execute the settlement and release of his claim against the defendant; that shortly after the pretended release was executed and as soon as plaintiff had recovered consciousness and had been advised about the payment of said money and that the defendant and the insurance company were contending that plaintiff's claim had been settled and released, plaintiff, through his attorney, tendered to said Morgan, agent for the defendant and the insurance company, said money and that said Morgan refused to accept it; that plaintiff has ever since and now offers to return said money.

Defendant insists that his instruction in the nature of a demurrer to the evidence offered at the close of all of the testimony should have been given, for the reasons, among others, that the evidence fails to sustain the plea of fraud set up in plaintiff's reply, and that there was no legal tender back of the money received by plaintiff in the settlement.

We think there was ample testimony tending to show that plaintiff was not mentally capable of negotiating the release at the time the same purports to have been executed. The evidence shows that plaintiff received a very severe injury and that thereafter and even before he was taken home he appeared to be in a dazed condition and in great pain. When he arrived home he appeared to be a man who had suffered a severe physical and nervous shock, "he was just limp." "He was limp, dazed and barely conscious." He was carried into the house and put to bed. About two hours thereafter Dr. Martin arrived and found that plaintiff had the appearance of a man who had been "in a rather severe accident, somewhat shocked and pretty well incapacitated." "I would say he was semiconscious." Dr. Schooley examined him that night and found that "he had loss of motion of the right leg and he had a paralysis of the right arm." To relieve his pain the doctor gave him an injection of a quarter of grain of morphine and a hundredth of a grain of hyoscine. The doctor next saw the plaintiff the following, or Friday, morning. At that time he gave plaintiff a hypodermic of hyoscine and morphine. He saw him on Friday evening and about three o'clock Saturday morning, at each time he gave him a hypodermic of morphine and hyoscine. He saw him again about eight or nine o'clock Saturday morning and gave him a hypodermic of morphine and hyoscine. The injections were of the same quantity each time they were given. The doctor testified that "I kept him under those (drugs) the first three days;" that these injections tended to deaden pain and "stupefy the brain," "had a hypnotic effect," "tended to induce sleep" and "blunt the intellect." As a result of these injections plaintiff was partially unconscious on Saturday, December 4th. He stated that in his opinion plaintiff was not at the time last mentioned of sufficient mental capacity to transact any kind of business. The evidence shows that it was only a short time after the doctor gave plaintiff the injection of hyoscine and morphine on Saturday noon that the pretended release was executed.

Dr. Robinson, a witness for plaintiff, testified that he was a specialist on nervous and mental diseases; that he was called to see plaintiff on the evening of December 4th, about 7:30 or 8 o'clock; that at this time plaintiff was unable to move his right arm and left leg; that plaintiff could move his left arm and right leg to some degree; that plaintiff was "in a sort of semi-stuperous condition." "I did a spinal puncture on him and the fluid was just a trifle discolored--a little bloody." This indicated there had been some bleeding into "the subcutaneous space beneath the membrane surrounding the brain and spinal cord." Plaintiff responded to questions slowly and seemed to be suffering from shock. Plaintiff appeared to have suffered at the time he received the injury a concussion of the brain. It was the opinion of the doctor that plaintiff was not of sufficient mental capacity to transact any business when the witness saw him.

Plaintiff's wife testified that she had waited upon him from the time he was brought home until a trained nurse was called on the evening of December 4th. The witness testified that plaintiff was brought home and put to bed; that he was unable to move any part of his body; that he got no rest the first night; that on Friday plaintiff was still "in that paralyzed condition;" that his right hand was swollen; that she had to move his head as he could not move any part of his body except his left hand; that he did not rest any Friday night; that about two o'clock Saturday morning she called Dr. Schooley, who came and gave plaintiff a hypodermic; that on Saturday morning "he was still lying there like he had been;" that the doctors came about eleven o'clock that day and made an examination of plaintiff, and Dr. Schooley gave him a hypodermic just before the doctors left at noon; that there was no change in the appearance of plaintiff. She testified that except for the time plaintiff was taken to Kansas City for the purpose of having X-rays taken, which was on December 27th, plaintiff was at home in bed nine weeks and three days after his injury; that after that time he attempted to sit up, but was only able to do so for a few minutes at a time, but he gradually grew some better.

Dr Martin testified that the effect of a hypodermic of morphine and hyoscine would become almost immediate and reach its maximum perhaps in half an hour...