Hubbard v. Lusk

• Decision Date: 08 January 1916
• Docket Number: No. 1534.,1534.
• Citation: 181 S.W. 1028
• Parties: HUBBARD v. LUSK et al.
• Court: Missouri Court of Appeals

181 S.W. 1028

HUBBARD v. LUSK et al.

No. 1534.

Springfield Court of Appeals. Missouri.

January 8, 1916.

On Motion for Rehearing, January 26, 1916.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Clara Hubbard against James W. Lusk, W. C. Nixon, and W. B. Biddle, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

W. F. Evans, of St. Louis, and Mann, Todd & Mann, of Springfield, for appellants. L. C. Mayfield and Don O. Vernon, both of Lebanon, for respondent.

STURGIS, J.

Plaintiff sues to recover for the death of her husband caused by being crushed between two freight cars of the railroad operated by defendants as receivers. It is alleged that such death was caused by defendants' negligence in suddenly and without any warning backing an engine and car against other cars between which an opening had been left for pedestrians to pass through, causing said opening to be suddenly closed while plaintiff's husband was attempting to pass through same. Other grounds of negligence are alleged, but this is the only one submitted to the jury. The amended answer, besides a general denial, contains a plea of contributory negligence and sets up a release of the cause of action executed by plaintiff in consideration of $250 paid to her. The reply alleges that at the time the release was executed the plaintiff was in the deepest distress, mental pain, and anguish, caused by the sudden death of her husband, whose body had not yet been buried, and that at the same time her children were lying in bed dangerously ill with a contagious disease; that she was not at said time of a contracting mind and was unable through her mental condition caused by the death of her husband and the sickness of her children to understand or comprehend the contents of the agreement; that she was poor and practically without any means of support, and that defendants' agent induced her to sign the release by representing to her that defendants were not responsible for her husband's misfortune and owed her nothing, but were willing to donate to her this amount for the purpose of paying the funeral expenses of her husband and relieving her immediate distress; that plaintiff was weak and enfeebled in mind by the causes aforesaid, and that she did not have mental power or understanding to oppose the will of defendants' said agent, and that her mind and will were subjected to the will of such agent in signing said alleged agreement. Plaintiff further avers that notwithstanding she received said money by way of a gift to defray the funeral expenses, etc., that she is willing to and does here and now tender back to defendants the said $250, or that said amount be credited on any judgment she may recover in this case.

The suit was filed on July 2, 1914, and at the next term of court defendants filed an answer without pleading this release. The case was continued to and tried at the February, 1915, term, and the amended answer pleading the release was filed shortly before the trial. On these pleadings both parties announced ready for trial, and a jury was impaneled. In the opening statement to the jury the defendant mentioned the fact that plaintiff had offered in her reply to return the $250, and stated that if plaintiff would actually repay such amount defendants would strike this defense from the answer. To this plaintiff replied that she was poor and did not have the ready money or time to raise the same, but would obligate herself to pay it or let judgment go against her for that amount. Defendants' attorney then said: "You refuse then to pay back the $250?" Plaintiff's attorney replied: "I say we haven't got it." After this colloquy the trial proceeded and the court was not called upon to make any ruling whatever, nor was anything left to submit to a jury on this point. The defendants now claim that plaintiff should not be allowed to retain the fruits of the compromise settlement, and at the same time seek to repudiate it. If plaintiff had paid and defendants had accepted the return of this money, this whole question would have gone out of the case. Evidently, however, as the subsequent trial shows, the defendants desired to and did avail themselves of this defense of release, and the question whether the release was binding on plaintiff or obtained by fraud and improper means was submitted to the jury. The defendants might, perhaps, have insisted that the tender be made more substantial than merely on paper, and the court might have required the money to be paid into court before proceeding with the trial, but the defendants did not so insist and there is no ruling of the court presented for our review. Besides, the defendants were allowed a credit of this amount on the verdict which she recovered for $7,500. Defendants waived whatever rights were not accorded to them.

On the trial of the issue of this release having been obtained wrongfully and by fraud, plaintiff's evidence substantiates her charge that defendants' claim agent appeared on the scene while her husband was yet unburied, and that her children were then seriously sick; that it was represented to her that she had no just claim for damages, and that defendants owed her nothing; that she was poor and without means of support; that her own health was not good and she was near a nervous breakdown; that her mind was distracted and she was not capable of comprehending and considering her rights in this matter; that the money given her was represented to be for paying her husband's funeral expenses and relieving her immediate necessities; that she did not know her own rights in the matter, and did not comprehend that she was compromising her claim for damages and giving a release in full. It is also true, however, that the release is plain, and she had the ability and opportunity to read the same, and the claim agent cannot be said to have used any such trick or deception or practiced such fraud as would avoid a written contract if entered into by a normal person under normal conditions and so situated at the time as to be capable of dealing at arm's length with one whose interests were antagonistic and skilled in that line of work. It is also true that plaintiff kept the check given her for several days before cashing it, and that all of the money was not used in defraying funeral expenses. But it is also true that defendants did not, till long after this suit was brought, bring forward its defense of this release, and her money was then all spent.

The statute, section 1812, R. S. 1909, allows a release such as this to be avoided by showing that it was fraudulently or wrongfully procured from plaintiff. This statute is liberal in allowing releases of this character to be set aside, and this may be done without proving fraud in its technical sense. While the general rule is that the law does not give indemnity against the consequences of indolence or folly or a careless indifference to the ordinary and accessible means of information, yet such rule is not to be applied where a deceived party for any reason was incapable of judging of the precautions to be taken against being defrauded and overreached. The law will give aid to the unfortunate whose ignorance and necessities have been made the means of an unfair or unjust contract. When the complaint comes from the weak, the helpless, and unfortunate, the entire aspect is changed, and the law affords them protection for the very reason that they are not able to protect themselves and cannot be considered at fault in becoming the victims of the wrongdoer. It is sufficient to show that through pain and suffering, distraction of mind and poverty, the person misled was not in a condition to realize the antagonistic position of the adversary, or to cope with him in making a bargain. Logan v. United Railways, 166 Mo. App. 490, 500, 148 S. W. 444; Tait v. Locke, 130 Mo. App. 273, 109 S. W. 105; Hendricks v. Vivion, 118 Mo. App. 417, 94 S. W. 318; Porter v. United Railways Co., 165 Mo. App. 619, 626, 148 S. W. 162. The release held valid in Anderson v. Drug Co., 149 Mo. App. 554, 130 S. W. 829, was made under quite different circumstances from those shown in the present case. This issue was submitted to the jury under instructions favorable enough to the defendants, and we think the jury was warranted in disregarding this release as a bar to plaintiff's action.

Coming to the merits of the case and the question of deceased's contributory negligence, the evidence shows that plaintiff's husband, with two companions and a team and wagon, were engaged in unloading a car of flour at the town of Stoutland, which car had been set on the house or team track for that purpose. The defendants' road runs substantially east and west through this town, with the depot on the north side of the main track and the passing and team switches on the south side. The larger part of the town lies on the north side of the railroad, but a number of dwelling houses, some warehouses and other businesses are situated on the south side. The principal road or street crossing is some 300 or 400 feet west of the depot, near which is also the apex of the switches mentioned. The closets used by defendants' servants and patrons were also on the south side of these tracks, as were the stockyards, tie yards, and other businesses necessitating a considerable amount of travel by foot across defendants' tracks in going to and from the depot and passing from one part of the town to the other. A coalhouse where coal was kept for use in the...