Homuth v. Metropolitan Street Railway Company

• Decision Date: 02 July 1895
• Citation: 31 S.W. 903,129 Mo. 629
• Parties: Homuth et al. v. Metropolitan Street Railway Company, Appellant
• Court: Missouri Supreme Court

31 S.W. 903

129 Mo. 629

Homuth et al. v. Metropolitan Street Railway Company, Appellant

Supreme Court of Missouri

July 2, 1895

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed.

James Black, Pratt, Ferry & Hagerman for appellant.

(1) If upon the pleadings and evidence the plaintiff could not recover, then the plaintiff was not entitled to a new trial on account of errors occurring during the trial, and the court below was in error in granting a new trial. (2) Where as in this case, the release is a sealed instrument and the fraud alleged does not go to the execution of the instrument as that it was misread, then the only way in which it may be set aside is by a suit in equity for that purpose, and it can not be attacked at law. Johnson v. Granite Co., 53 F. 569; Messenger v. Insurance Co., 59 F. 529; Vandervelden v. Railroad, 61 F. 54; Sharon v Tucker, 144 U.S. 533; George v. Tate, 103 U.S. 564. (3) Upon the evidence the proof of fraud is wholly insufficient. McFarland v. Railroad, 125 Mo. 253; Pederson v. Railroad, 33 P. 351; Railroad v. Shay, 82 Pa. St. 198; Mateer v. Railroad, 105 Mo. 320. (4) In this case two causes of action held by two persons were settled. The release could not be avoided in a suit at law by one. Spencer v. St. Claire, 57 N.H. 9; Gould v. Bank, 86 N.Y. 84; Cobb v. Hatfield, 46 N.Y. 533; Baily v. Fox, 78 Cal. 389. (5) The plaintiff should have tendered back the money received on the compromise before instituting suit for damages. Jarrett v. Morton, 44 Mo. 275; Estes v. Reynolds, 75 Mo. 563.

L. H. Waters and Albert Young for respondent.

Robinson, J. Gantt, Sherwood, Burgess, and Macfarlane, JJ., concur. Brace, C. J., and Barclay, J., concur in the result.

OPINION

In Banc.

Robinson J.

This is an appeal by defendant from an order of the circuit court, setting aside a verdict in its favor in a personal injury case.

The petition is in the usual form, charging injuries received by plaintiff while she was a passenger on defendant's cars on the evening of October 1, 1889, by reason of a collision between cars running in opposite directions on defendant's street car tracks in Kansas City. Defendant answered, setting up four distinct defenses. First, the jurisdiction of the court by reason of illegal service of process on it. Second, a general denial. Third, contributory negligence; and, fourth, a release in writing with seal executed by both plaintiffs, which release is in words and figures as follows:

"For the consideration of five hundred dollars, we, Mrs. Bertha Homuth and Erith Homuth, her husband, and each of us, do hereby release and discharge the Metropolitan Street Railway Company from any liability, whatsoever, for any claim of whatever nature which we or either of us may have against said company, whether specifically enumerated or not, and particularly all claim for damage, loss of service, or expense arising out of, or connected with, an accident upon the car line of said road on October 1, 1889, on the Fifth street division, near Fifth and Bluff streets, in Kansas City, Missouri.

"In witness whereof we have hereunto signed our names and attached our seals this 22d day of October, 1889.

Bertha Homuth. [Seal]

"Erith Homuth. [Seal]"

A reply was filed expressly admitting the execution and delivery of the release, but averring "that the same was obtained by false and fraudulent representations, in that defendant's surgeon attended and treated her, and, although he knew she was permanently injured, represented to her that she was not seriously hurt, but would be well in three weeks, and that the only settlement in fact made was for "the injury, suffering, loss, and damages to plaintiff, during the period of time from the happening of said injury to three weeks after the date of the execution of said pretended instrument of settlement." The further averment is made that on April, 1891, plaintiffs tendered to defendant $ 500 and interest thereon.

After the overruling of several ineffectual motions and demurrer filed by defendant, the court on defendant's motion made an order that the issues as to the validity of the release be tried separate from the trial of the issue as to defendant's liability, on the alleged cause of action as set out in the petition. The cause then proceeded to hearing upon that issue only, before the jury, and at the close of plaintiffs' testimony defendant interposed a demurrer which was by the court overruled, and at the close of all the testimony offered in the case defendant again renewed its demurrer which was likewise overruled. The case was then submitted to the jury under instructions, resulting in a verdict and judgment for defendant. Plaintiffs in due time filed their motion for a new trial, which was granted for the alleged error in the giving of instruction numbered 4 as given at the request of the defendant herein, which we do not copy here, as it will not be discussed.

We will here give a statement of the facts out of which the case grows, together with the testimony of plaintiffs as it affects the matter of settlement and the giving of the release pleaded and interposed by defendant, as a bar to plaintiffs' cause of action.

October 1, 1889, Mrs. Homuth was a passenger on defendant's street cars in Kansas City and received an injury in the nature of a sprain to one of her ankles from which she was unable to walk for several weeks, and on account of which she was unable to get around, except on crutches, for several months, according to her testimony. Plaintiffs at the time of the injury and for eight or more years previous thereto were running a stationery store in Kansas City, Kansas. Plaintiffs are Germans, but read and write English well, and were acquainted with the general manner of doing business in the city, and between them the books of the business were kept.

The day after Mrs. Homuth received her injury, Dr. Baum, a practicing physician of Kansas City, was called to see her and treated her up to the day of the settlement between plaintiff and the defendant, when the release offered in evidence was obtained, and during that time visited her every day, and was present at the time the settlement was made and the release was signed by plaintiffs, and signed same as one of the attesting witnesses.

Dr. Pettyjohn, the evening after the injury, called at plaintiff's home, on behalf of the defendant, to ascertain the extent of Mrs. Homuth's injury, and while there, in answer to a question by Mrs. Homuth as to the extent of her injury, in the presence of her physician, said that he thought that she would not have to remain in bed for more than five or six days.

At the request of plaintiffs, Dr. Pettyjohn again called to see Mrs. Homuth, the day her ankle and foot were put into a plaster of Paris cast, October 15, and was again to see her when the cast was removed on the twenty-third of October when the settlement was made and the release signed, and then, again, in answer to a question by Mrs. Homuth as to when he thought her foot would be well, said, according to the testimony of plaintiff, "Well, I know there is no inflammation in the foot, and the foot will be well in fourteen days; because there is no inflammation in the foot, I think it will be well by that time, but here is your doctor, let him tell you." Mrs. Homuth further testified, "Then my husband says 'well' he says, 'then that will be on the sixth of November that she will be well and able to walk. Then we will say the fifteenth of November, that will be about five weeks in all. I say then my bill is five hundred dollars.' Mr. Windom then he came up and got the paper ready and gave it to me to sign and I signed it but I did not read it." * * *

Then on cross-examination she testified as follows:

"Q. Now, how often during that month before you settled, was Dr Baum with you? A. Oh, I think he came about every day.

"Q. What kind of treatment did he give you; what did he do for your foot? A. He bandaged it over first.

"Q. And applied liniments? A. Yes, sir; he put arnica and other things on the bandage and rebandaged it again.

"Q. When was it that Dr. Pettyjohn first came there? A. Well, on the second of October; that is where I have that down.

"Q. What time in the day? A. Well, they come about 10 o'clock.

"Q. What time did Dr. Baum come? A. Well, I say it was either 9 or -- I could not say.

"Q. Dr. Baum had been there before Dr. Pettyjohn came? A. Yes, sir.

"Q. You sent for Dr. Baum and while he was there Dr. Pettyjohn came? A. Yes, sir.

"Q. You knew Dr. Pettyjohn was the company's surgeon? A. I didn't know. I was introduced to him as Dr. Pettyjohn and he told me he was the surgeon of the company.

"Q. You knew he was there for the company when he came to see you? A. Well, I didn't know.

"Q. When was the next time Dr. Pettyjohn was there? A. He was there on the next Saturday.

"Q. Do you remember what day of the month that was? A. Well, that little book shows it.

"Q. That was twice that Dr. Pettyjohn was there; when was the third time? A. The third time was on the twenty-third of October.

"Q. That is the time the settlement was made? A. Yes, sir.

"Q. Dr. Baum was there too, every day? A. Yes, sir.

* * * *

"Q. Then he was there again on the twenty-third? A. Yes, sir.

"Q. Mr. Winton wanted to settle it all up? A. It seems so.

"Q. He wanted to settle the whole case? A. Well, he wanted to settle.

"Q. He wanted to settle the whole case up? A. Well I don't know if he wanted to settle half or the whole.

"Q. Your testimony was taken over here in the United States court? A. Yes, sir.

"Q. Weren't you asked this question: 'He wanted to settle the whole case up, didn't he?' and didn't you say, 'Yes, sir.' A. I don't know if...