Hogard v. Kansas City Rys. Co.

• Decision Date: 18 February 1918
• Docket Number: No. 12768.,12768.
• Citation: 202 S.W. 431
• Parties: HOGARD v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

202 S.W. 431

HOGARD v. KANSAS CITY RYS. CO.

No. 12768.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by Charles B. Hogard against the Kansas City Railways Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Atwood, Wickersham, Hill & Popham, of Kansas City, for appellant. Clyde Taylor, of Kansas City, Mo., R. J. Higgins, of Kansas City, Kan., and Ben T. Hardin and Charles A. Stratton, both of Kansas City, Mo., for respondent.

TRIMBLE, J.

Plaintiff sued for damages on account of personal injuries alleged to have been negligently inflicted upon him while a motorman in defendant's employment. The answer was a general denial, a plea of contributory negligence, together with a further plea of a written release of all liability, if any, executed by plaintiff for a valuable consideration; said release being set up as a complete bar to the action and to plaintiff's right to recover. Plaintiff, in his reply, admitted the execution of said release, but pleaded that it was without consideration. At the close of plaintiff's case, the court indicated that it was going to sustain defendant's demurrer to the evidence; whereupon, and before the demurrer was sustained, plaintiff, by leave, amended his petition reducing the damages sought from $20,000 to $7,500 and then took an involuntary nonsuit with leave to move to set the same aside. This motion was properly made, but was overruled, Whereupon plaintiff appealed.

As motorman, plaintiff was driving an east-bound car when, upon approaching a wagon on the track, he slowed down to about one mile per hour and another car behind him crashed into him, causing him to be thrown down and backwards. He was helped to his feet, and in a sitting position drove his car on until the car barn was reached where he alighted from the car, made a report of the accident, and, at the direction of the superintendent, went to the company's doctor, who, after examining him, gave him some prescriptions for liniments which plaintiff took home with him and had filled and the liniments were rubbed on him by his wife and the lady with whom they were boarding. The fourth day after the accident, he went back to the doctor and obtained a certificate from him to the company that "the bearer, Mr. C. B. Hogard, is now able to resume his work." He took this and went to" the general offices of the company and reported that he was ready to go to work. He was then handed the release by an official of the company who remarked, "Sign this and go to work." Plaintiff did so and was thereupon put to work, where he remained for a time and then resigned, he says, because of the seriousness of his injuries which then became apparent.

The release was all comprehensive and covered all "actions, causes of actions, suits, controversies, claims and demands whatsoever" for all injuries to the person or damage to the property of the signer caused by the specified occurrence. There is no claim of fraud or mistake in signing the release or of any duress or deceit practiced upon him to get him to sign it. Indeed, as stated, the execution of the release is admitted, and the only defense thereto is want of consideration.

The...