Johnson v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 16 December 1898
• Citation: 77 N.W. 476,107 Iowa 1
• Parties: JOHN C. JOHNSON, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY. [*]
• Court: Iowa Supreme Court

77 N.W. 476

107 Iowa 1

JOHN C. JOHNSON, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY. ^[*]

Supreme Court of Iowa, Des Moines

December 16, 1898

Appeal from Mahaska District Court.--HON. D. RYAN, Judge.

PLAINTIFF states as his cause of action in substance as follows: That about August 23, 1893, he got onto one of defendant's freight trains, going east, at the city of Des Moines without a ticket entitling him to ride on said train, and was riding on top of one of the cars; that when nearing Altoona defendant's brakeman ordered him to get off said train then running at a rapid speed, and immediately rushed at plaintiff in a threatening manner, whereupon plaintiff immediately descended the ladder for the purpose of getting off; that said brakeman followed, ordering plaintiff in an angry and threatening manner to hurry and get off, and crowded upon plaintiff, and seized his hands, and tore his hold loose from the ladder, by reason of which acts and conduct plaintiff fell, and his left leg was run over by several of the cars, and so injured as to necessitate amputation. Plaintiff alleges that he asked to be allowed to remain until the train stopped, but was compelled to get off at once; also that the acts, conduct, and language of said brakeman were negligent, and with malice and ill will towards the plaintiff, and that said brakeman had no authority to remove persons from said train who were trying to ride thereon without paying, and who had no right to ride thereon. Other allegations are made, going to the amount of damages and plaintiff asks to recover ten thousand dollars. The defendant answered, admitting its corporate capacity, denying the other allegations of the petition, and alleging contributory negligence. In an amendment to its answer defendant alleges that about the day of October, 1895, plaintiff and defendant had a full settlement of all matters involved in this action, and that defendant then paid plaintiff one hundred and fifty dollars in full of all demands claimed to have been incurred by said accident, and that it was agreed that this case should be dismissed at plaintiff's costs. Plaintiff filed a lengthy reply to said amendment to the answer. Defendant moved to strike said reply upon these grounds: First, that it is not a pleading authorized to be filed; and, second, that the matter is irrelevant, and redundant, and immaterial. The court overruled the motion as to the first ground, and sustained it as to the second, and thereupon plaintiff filed an amendment to his reply, to which defendant filed a motion and demurrer. No ruling appears to have been made upon the motion, but the demurrer was sustained, to which plaintiff excepted. Plaintiff then filed a second amendment to his reply, to which defendant demurred, and the demurrer was sustained, except as to a part thereof, which is as follows: "Comes plaintiff, and by leave of court amends his reply, and says: That he denies each and every allegation in defendant's amendment filed February 17, 1896, except what is herein admitted. Plaintiff admits that some time in October, 1895, the defendant paid the plaintiff one hundred and fifty dollars on a compromise or settlement of his said cause of action, but the plaintiff avers that the said settlement was and is unfair, and was obtained by fraud, fraudulent misrepresentations, collusions, and undue influence, and by such means defendant obtained such settlement. That the defendant and its attorney, George E. McCaughn, falsely and fraudulently represented to the plaintiff that he (plaintiff) had no case against the defendant, and that the defendant and he (the said McCaughn) had seen a large number of witnesses, to-wit, six or seven; and he stated to the plaintiff that said witnesses had stated to him (the said McCaughn) that they would swear at the trial of this case that the brakeman on the train from which plaintiff was forced off did not touch him (the plaintiff), or force him from the train on which he was riding, nor curse nor swear at him, nor order him off of said train when it was in motion. That the defendant and its said agents well knew that said representations, and each of them, were false and fraudulent, and this plaintiff believed and relied upon the representations aforesaid, and was influenced and deceived thereby, and was influenced and induced by the acts and false representations aforesaid to make said settlement. And plaintiff asks that the one hundred and fifty dollars so paid, with interest thereon from the date of payment, be credited on the amount that may be found due the plaintiff on his cause of action herein. Wherefore plaintiff prays judgment for the sum of ten thousand dollars, with interest, less the said sum of one hundred and fifty dollars, with interest, as aforesaid, and for costs of suit." The case went to trial on these issues, and at the close of the evidence for plaintiff the court, on motion, directed a verdict for the defendant, and rendered judgment accordingly. Plaintiff appeals.

Affirmed.

Geo. W. Lafferty and B. W. Preston for appellant.

Geo. W. Seevers and Carroll Wright for appellee.

OPINION

GIVEN, J.

I.

Plaintiff complains of said rulings on his reply and amendments. To avoid the admitted settlement, plaintiff relies upon certain representations claimed to be false, made to him to induce the settlement, and by which he was induced to make it. Each representation relied upon should have been plainly stated in the reply, with allegations of their falsity, and that they were made to be and were relied upon in making the settlement. The reply and amendments are mainly extended statements of matters claimed to support the charge of fraud. They are statements of evidence, rather than of ultimate facts. Whatever error there may have been in these rulings was cured by allowing that part of the last amendment to stand that was retained, as thereby the issue of fraud in the settlement is as fully presented as it had been pleaded, and the parts excluded did not enlarge the issues nor the scope of the evidence.

II. The grounds of defendant's motion for a verdict may be summed up as follows: That there is no evidence tending to show that the alleged representations were false, nor that they were relied upon, nor that they were the sole inducement to the settlement, nor that plaintiff was induced or misled thereby no evidence tending to avoid said settlement, and that there is evidence tending to show that plaintiff sought and brought about the settlement himself. In considering the ruling on this motion we notice briefly the facts upon which plaintiff's cause of action rests, as shown by his testimony, and then more particularly the evidence as to the settlement. Plaintiff, then aged nineteen and Nicholas and Hanson, boarded defendant's freight train with the intention, as it is expressed, of "beating their way, of stealing a ride," knowing that it was not allowed by the company, and that the trainmen had orders to...