Illinois Cent. R. Co. v. Johnston

• Court: Alabama Supreme Court
• Writing for the Court: MCCLELLAN, J. BROWN, J.
• Citation: Illinois Cent. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866 (Ala. 1920)
• Decision Date: 30 June 1920
• Docket Number: 6 Div. 775.
• Parties: ILLINOIS CENT. R. CO. v JOHNSTON.

87 So. 866

205 Ala. 1

ILLINOIS CENT. R. CO. v JOHNSTON. ^[*]

6 Div. 775.

Supreme Court of Alabama

June 30, 1920

Rehearing Denied Oct. 21, 1920.

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...