Hayes v. Sheffield Ice Company
| Decision Date | 21 May 1920 |
| Parties | GUY HAYES v. SHEFFIELD ICE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Certified from Kansas City Court of Appeals. -- Hon. O. A Lucas, Judge.
Judgment of Circuit Court Affirmed.
R. E Ball and Justin D. Bowersock for appellant.
(1) In the case of Barton v. Bridges, 126 Md. 676, 95 A. 359, the court cites Atlantic Delaine Co. v. James, 94 U.S. 207, where it is held that power to vacate satisfaction of a judgment "ought not to be exercised except in a clear case, and never for alleged fraud unless the fraud is made clearly to appear; never for alleged false representations unless their falsity is certainly proved, and unless the complainant has been deceived and injured thereby." All three of the judges of the Court of Appeals recognized in their separate opinions that such is the law. Judge Johnson, whose findings of fact and conclusions are recommended for adoption in the divisional opinion, found that the plaintiff lied over and over again; that he showed himself morally perverted; that he not only was not deceived, but himself undertook to deceive his attorney; that it was his case and his judgment and he could do as he pleased with it; and that this motion to vacate was his motion and not that of his attorneys. Assuming, as he had no right to do, that the court might balance and estimate the relative capacity of plaintiff on the one hand and defendant's counsel on the other, Judge Johnson proceeds to the conclusion that somehow or other, although the specified frauds were not proven, and although the plaintiff knew full well when he took the money, after conference with his attorney at the court house, that he was acting contrary to his attorney's advice, still the court ought to substitute its notions for those of the plaintiff. Since when has it been the law that an individual who is sui juris and competent to attend to his own business, in the absence of fraud or deception perpetrated against him, could not for a valuable consideration settle his case? There is no decision of any court in England or America that will sustain the position taken by Judge Johnson. The pending motion specified certain alleged false representations. The proof taken confessedly failed in toto to sustain any of those charges. (2) We briefly call attention to the personal equation. This motion is bottomed on alleged false representations made by Mr. Porter. Those allegations are absolutely without foundation. Every member of this court has been a practicing lawyer and can realize the gravity to any member of the bar against whom such charges are made. If the present counsel of the defendant thought for one moment that Mr. Porter was guilty of fraud in this matter, we hope to be believed when we say that we would not defend him. Being thoroughly satisfied, after most careful study of the evidence, that he was not guilty as charged, we earnestly appeal to the court to deny this motion and exonerate Mr. Porter. We beg the court to carefully read the opinion of the judges of the Court of Appeals, 168 S.W. 294. (3) Plaintiff had a right to settle his case without the consent of his attorneys. Young v. Renshaw, 102 Mo.App. 173; Whitwell v. Aurora, 139 Mo.App. 597; Stephens v. Railway, 157 Mo.App. 656. (4) The burden is upon plaintiff to show that knowingly false statements were made to him and that he believed and relied upon them. Borchers v. Barckers, 143 Mo.App. 84. (5) Fraud can only be established by clear proof. Holland v. Anderson, 38 Mo. 59; Laughlin v. Fairbanks, 8 Mo. 367. (6) Plaintiff had two consultations with his attorneys before the settlement was closed; therefore he cannot prevail on his motion. 2 Cooley on Torts, 959; Raffel v. Epworth, 107 Mich. 143; Vernol v. Vernol, 63 N.Y. 45; Davis v. Phoenix Ins. Co., 81 Mo.App. 264; 20 Cyc. 32. (7) Plaintiff's evidence is unworthy of belief and insufficient if believed. (8) The consideration was not inadequate.
John H. Atwood and Park & Brown for respondents.
(1) A cause transferred from a court of appeals to the Supreme Court is to be heard as though appealed directly to the Supreme Court, and jurisdiction does not depend upon the actual existence of a conflict of opinions. Const. Mo. Art. VI (Amdmt.) sec. 6; Keller v. Summers, 262 Mo. 324; Sutton v. Cole, 155 Mo. 206; State ex rel. v. Hickman, 150 Mo. 626; Johnson v. Fecht, 185 Mo. 335; Epstein v. Railroad Co., 250 Mo. 7. (2) The settlement and release were fraudulently obtained and should be set aside. (3) The circuit court properly denied defendant's request for peremptory instructions. (a) The Court of Appeals in the Boten case said: "The danger to plaintiff arose not from the general liability of the building to fall, but from a defective condition at one place known to defendant and unknown to plaintiff; and defendant, without remedying said defect assured plaintiff it was safe." Boten v. Ice Co., 180 Mo.App. 101. (b) The parties were not on equality in this situation. Defendant was obliged to search for defects in order to discover whether it was a safe and prudent thing to order inexperienced boys into such a place. Gutridge v. Mo. Pac. Ry. Co., 105 Mo. 520; Nicholds v. Plate Glass Co., 126 Mo. 65; Clark v. Iron Co., 234 Mo. 454; Cody v. Luck, 187 Mo.App. 337. (3) When an appliance is old it requires careful inspection, and the master is not justified in relying upon merely an inspection by his eyes. Pendegrass v. Railroad, 179 Mo.App. 531; Nowotny v. Brewing Assn., 185 Mo.App. 718; Spaulding v. Lumber Co., 183 Mo.App. 656. (d) Plaintiff was justified in relying upon the assurance of defendant's president. Sullivan v. Railroad, 107 Mo. 66; Swearingen v. Mining Co., 212 Mo. 538. (4) The court properly refused defendant's instruction 7. The instruction cast the entire burden of proof upon the plaintiff. There was an issue of contributory negligence upon which the burden was upon the defendant. Lane v. Railroad, 132 Mo. 18; Thompson v. Railroad, 51 Mo. 192; Mitchell v. City of Clinton, 99 Mo. 158. Where the evidence is uncontradicted the court may properly refuse an instruction on the burden of proof. Hughes on Instructions to Juries, pp. 186 to 187; Davidson v. Transit Co., 211 Mo. 357; Stauffer v. Railroad, 243 Mo. 333; Hauser v. Steigers, 137 Mo.App. 569; Bank v. Inv. Co., 160 Mo.App. 378.
OPINION
In Banc
Plaintiff, a minor, who sued with his father as next friend, recovered in the Circuit Court of Jackson County a judgment against the defendant for personal injuries in the sum of $ 4000. The defendant appealed to the Kansas City Court of Appeals. Before the determination of the appeal the plaintiff entered into an agreement with the then counsel for the defendant for the release and acquittance of his judgment against the defendant for the expressed consideration of $ 500. At the same time defendant's counsel prepared a stipulation for the dismissal of the appeal to be filed in the Court of Appeals and same was signed by the plaintiff and the counsel for the defendant. The latter, accompanied by the plaintiff, then went to the office of the Clerk of the Circuit Court and the plaintiff signed an entry of satisfaction on the record of his judgment against the defendant. Counsel for the defendant then paid the plaintiff the sum agreed upon in the settlement. This transaction occurred on the 8th day of September, 1913. On October 2, 1913, counsel for plaintiff, who had prosecuted the action to a judgment for a contingent fee and who had no knowledge at the time of the plaintiff's settlement with the counsel for the defendant, filed in the Court of Appeals a motion, under plaintiff's direction, to set aside the release and satisfaction of the judgment on the ground of fraud and deception alleged to have been practiced upon the plaintiff in the procurement of the settlement.
Testimony was taken under the order of the court in support of the motion and upon a hearing the same was overruled, thus sustaining the settlement. One of the judges dissented and certified the cause to this court on the ground that the ruling of the majority was in conflict with principles announced in Stonemets v. Head, 248 Mo. 243, 154 S.W. 108 and Girard v. St. Louis Car Wheel Co., 123 Mo. 358, 27 S.W. 648.
The transcript of the entire proceedings in this case is before us. It includes not only the record of the proceedings in the circuit court, but in addition the record and the testimony concerning the stipulation to dismiss and plaintiff's motion to set aside the settlement and the court's ruling on same.
I. The case comes to us as if upon direct appeal from the circuit court and must be so considered and determined. [Art. VI. sec. 6, Amdt. 1884, Cons. Mo.; Keller v. Summers, 262 Mo. 324, 331, 171 S.W. 336; Epstein v. Railroad, 250 Mo. 1, 7; Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052.]
II. We will not burden this opinion with a statement in detail of the facts and circumstances leading up to the settlement of the plaintiff's case with the then counsel for the defendant. This phase of the case is not one of pleasant contemplation; and the facts having been set forth in full in the opinions of the judges of the Court of Appeals (168 S.W 294), they may be consulted for fuller information. Impartially considered, either as presented in the majority or dissenting opinions, they present sufficient facts to authorize the branding of the settlement between the plaintiff and the then counsel for the defendant with the badge of fraud under the principles announced in the Stonemets and Girard cases, ...
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