Appeal
from Circuit Court, Jefferson County; C. W. Ferguson, Judge.
Action
by C. B. Johnston against the Illinois Central Railroad
Company. There was judgment for plaintiff in the sum of
$30,000, and the defendant appeals. Affirmed.
Grounds
of demurrer not specified as required by Code 1907, § 5340
will not be considered.
The
amended complaint, consisting of a single count, is as
follows:
"Plaintiff
claims of the defendant, a body corporate, doing business
in Jefferson county, state of Alabama, $50,000 damages, for
that on, to wit, November 18, 1913, defendant was engaged
in the carriage of freight and passengers for hire between
the states of Tennessee and Alabama by means of a steam
railroad, and plaintiff on said date, while employed by
defendant in said commerce, was injured in Walker county
state of Alabama, as follows: The car in which plaintiff
was employed to perform his duties was derailed breaking
one of plaintiff's fingers, on his right hand
lacerating his scalp and severely and seriously injuring
his back, spine, kidneys, brain and nervous system, thereby
causing plaintiff to endure very great physical and mental
pain and suffering, to lose a great deal of time from his
employment, and to incur great expense in and about the
treatment of said injuries, permanently injuring plaintiff
and permanently rendering him less able to earn a
livelihood. Plaintiff avers said injuries were proximately
caused by reason of a defect in the track of said railroad
at the place where said car was derailed.
"Amended
Complaint.
"Plaintiff
amends the complaint by leave of the court by adding at the
end of first count of the complaint the following:
'Plaintiff avers said defect was due to the negligence
of the defendant,' and by striking out the word
'Mississippi' wherever the same occurs in said
complaint and inserting in lieu thereof the word
'Alabama."'
In
addition to a general traverse of the amended complaint and
the statute of limitations of one year, the defendant filed
the following pleas:
"(2)
That prior to the commencement of this suit the American
Express Company, for itself and the Illinois Central
Railroad Company, this defendant, paid to the plaintiff the
sum of $500 in compromise and settlement of the injury
alleged in the complaint and in consideration of the
execution by the plaintiff of the following receipt and
release, namely:
"'Received
of the American Express Company five hundred and no/100
($500.00) dollars, and in consideration of said sum, I,
Clarence B. Johnston of Birmingham in the county of
Jefferson and state of Alabama, hereby remise, release
and forever discharge the said American Express Company
(and the Illinois Central Railroad Company) from any and
all liability by reason of any matter, cause or thing
whatever, whether the same arose upon contract or upon
tort, and especially from all claim which I now have, or
may hereafter have, arising in any manner whatever,
either directly or indirectly, in whole or in part, from
or on account of personal injuries sustained by me on or
about November 18th, 1913, at or near Jasper, in county
of Walker, state of Alabama.
"'In
testimony whereof, I have hereunto set my hand and seal
this twenty fifth day of June, A. D. 1914.
"'[Signed]
Clarence B. Johnston. [Seal.]
"'J.
G. Scott, Witness.
"'E.
K. Stone, Jr., Witness.'
"Defendant
avers that by the execution of said release and the
payment of said sum of money the cause of action here
sued on was settled."
"(5)
That prior to the commencement of this suit, plaintiff in
consideration of the sum of, to wit, $68, paid him by the
defendant, settled in full the cause of action now sued
on."
"A.
That after the occurrences complained of in the complaint
plaintiff executed to the defendant jointly with the
American Express Company, a release of the cause of
action sued
on, which was in words and figures as follows, to wit: (The
release quoted in plea 2, above).
"Said
release was executed in consideration of $500 then and
theretofore paid plaintiff by the American Express Company
under an agreement or understanding between the American
Express Company and this defendant to the effect that this
defendant would reimburse said American Express Company for
part of the sum so paid plaintiff by it; and thereafter this
defendant did pay to the American Express Company the sum of
$219.66 to reimburse said American Express Company for this
defendant's proportion of the sum paid for it by said
American Express Company in accordance with said agreement
and understanding, which agreement or understanding was, in
substance, made known to plaintiff at the time of the
execution of the release aforesaid.
"And
this defendant further says that plaintiff has not tendered
nor offered to repay either to the American Express Company
or to this defendant any part of said sum of $500."
To
pleas 2 and A, separately and severally, the plaintiff filed
the following replication:
"Comes
the plaintiff and for answer to defendant's plea 2 by way
of general replication thereto denies each and every material
allegation of said plea.
"For
further answer to said plea by way of special replication
thereto plaintiff says, at the time he signed said paper set
forth in said plea he did not know the contents of said paper
and never knew it was a release of liability of the defendant
or any one else for the injuries complained of in the
complaint. Plaintiff avers he was deceived as to the contents
of said paper and its contents were misrepresented to him by
the defendant's agent E. K. Stone, Jr., and a fraud
practiced upon him by said Stone. Said Stone, representing
said paper to be merely a statement as to the moneys received
by plaintiff from the American Express Company as a gift and
expression of charity by it toward the plaintiff and in no
sense a release from liability of said express company or any
one else for damages caused by the injuries complained of in
the complaint. Plaintiff avers he never received any
consideration whatsoever for the signing of said paper, nor
was he offered any consideration for the signing of the same.
Plaintiff avers that whatever moneys he has received from the
defendant, including the amount alleged in said plea, was
represented unto him by said Stone as a gift from the
American Express Company and as an expression of charity on
its part toward him and not as a consideration for a release
of the defendant or anyone else from liability to plaintiff
for the injuries complained of in the complaint.
"C.
B. Johnston.
"Sworn
to and subscribed before me this December 13, 1917. Wm. J.
Waldrop, Clerk."
Plaintiff
pleads to the defendant's plea A the same replications,
separately and severally, which he has pleaded to
defendant's plea 2. "Filed in office this 14 day of
Dec. 1917."
To this
replication to pleas 2 and A the defendant interposed the
following demurrer:
"(1)
It is not denied in said replications but that plaintiff knew
some time after he signed said release what its provisions
were, and there is no averment that he ever returned or
offered to return the said sum alleged to have been paid him.
(2) It is alleged in said plea and not denied in said
replication that plaintiff was paid by defendant the said sum
of $500, and it is not alleged in said replications that
plaintiff has ever returned or offered to return said money
nor did he offer to rescind said contract though he knew what
the provisions of the said release were. (3) Because the
matters therein set forth were not sufficient to avoid the
legal force of the facts set forth in said plea. (4) Because
it attempts to vary by parol the terms and conditions of a
written contract. (5) Because the facts therein set forth
show that it was plaintiff's duty to have read said paper
before signing the same, and that he is bound by the same
whether he read it or not. (6) Because it does not show that
plaintiff could not by reasonable and proper diligence on his
part have known the contents of said paper. (7) Because the
facts therein set forth show that plaintiff is bound by the
contents of the paper that he did sign whether he knew the
contents thereof or not. (8) Because said replication does
not show that plaintiff has ever offered to return to the
defendant the consideration set forth in the release set up
in said pleas. (9) Because it does not show that plaintiff
could not read or was otherwise prevented from ascertaining
the contents of said paper. (10) Because said replication
does not deny the execution of the release. (11) Because it
does not appear that the plaintiff has ever tendered or
offered to the defendant the sum alleged in said plea to have
been paid plaintiff in settlement of the case. (12) Because
it affirmatively appears from said replication that the
plaintiff did not, and has not, offered to return to or
tendered to the defendant within a reasonable time the sum
alleged in said plea to have been paid to plaintiff. (13)
Because it is not alleged that plaintiff was prevented from
reading said release by any fraud of the defendant practiced
upon him. (14) The alleged misrepresentations of the
defendant are not sufficiently set forth or described. (15)
It does not appear by whom said alleged misrepresentations
were made. (16) It does not appear of what said
misrepresentations consisted. (17) It does not appear by whom
plaintiff was deceived. (18) It does not appear that
plaintiff's alleged lack of knowledge was due or any
fault on the part of defendant or of anyone for whose acts it
was legally responsible. (19) It does not appear what fraud
was practiced upon p...
