Kelley v. Illinois Cent. R. Co.

• Decision Date: 06 December 1943
• Docket Number: 38672
• Citation: 177 S.W.2d 435,352 Mo. 301
• Parties: Wesley C. Kelley v. Illinois Central Railroad Company, Appellant
• Court: Missouri Supreme Court

177 S.W.2d 435

352 Mo. 301

Wesley C. Kelley v. Illinois Central Railroad Company, Appellant

No. 38672

Supreme Court of Missouri

December 6, 1943

Rehearing Denied January 3, 1944. Motion to Transfer to Banc Overruled February 7, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed (subject to remittitur).

Watts & Gentry for appellant; John W. Freels of counsel.

(1) Plaintiff was bound by the release, whether he read it or did not read it. If he could not read it, he had plenty of opportunity to have it read by others and it was his duty to do so; if he could read it, and neglected to read it, he was nevertheless bound by it. Conklin v. Mo. Pac. R Co., 55 S.W.2d 306; Poe v. I.C.R. Co., 99 S.W.2d 82. (2) Plaintiff's claim that he is not bound by the release because of fraudulent representations which he says were made and which induced him to sign the release can be of no avail because the alleged fraudulent misrepresentations did not refer to facts then existing or which had existed, but related to an alleged promise to do something in the future. Such representations, if made, do not constitute fraudulent representations entitling a party induced thereby to sign an instrument of writing to avoid the same. Younger v. Hoge, 211 Mo. 444; Estes v. Desnoyers Shoe Co., 155 Mo. 577; Metropolitan Paving Co. v. Brown, etc., Inv. Co., 309 Mo. 638; Bryan v. L. & N.R. Co., 292 Mo. 535; Patzman v. Howey, 100 S.W.2d 851; Reed v. Cooke, 55 S.W.2d 275; Edwards v. French, 263 S.W. 132; Loan & Inv. Co. v. Trust Co., 175 Mo.App. 646; Field v. Natl. City Bank of St. Louis, 121 S.W.2d 769; Jeck v. O'Meara, 107 S.W. 782; Grand Lodge, etc., v. Mass. Bonding Co., 324 Mo. 738. (3) The court erred in overruling objections made by defendant's attorney to statements made by counsel for plaintiff in his elaborate statement of facts made to the jury after they had been empaneled, and in overruling defendant's motion to direct the jury to disregard said second statement and in overruling defendant's motion to discharge the jury because of improper remarks in said statement. Also, the plaintiff's counsel made improper remarks in his closing argument to the jury which were highly prejudicial and inflammatory, and the court erred in refusing to rebuke plaintiff's counsel for making such remarks. New York Central R. Co. v. Johnson, 49 S.Ct. 300; Minneapolis, St. P. & S.S.M. Ry. Co. v. Moquin, 51 S.Ct. 501; Borrson v. M., K. & T.R. Co., 172 S.W.2d 835. (4) The court erred in overruling defendant's motion to dismiss the case pursuant to stipulation filed in the case. (5) The verdict of the jury is excessive. Mickel v. Thompson, 156 S.W.2d 721; Harrison v. St. L.-San Francisco Ry. Co., 99 S.W.2d 841; West v. Kurn, 148 S.W.2d 752; Turnbow v. K.C. Rys. Co., 211 S.W. 41.

Mark D. Eagleton and Roberts P. Elam for respondent; Asa J. Wilbourn of counsel.

(1) The release having been delivered by plaintiff upon condition that the proposed settlement of his claim and suit be approved by his attorney, Asa J. Wilbourn, and the proposed settlement having been disapproved by Mr. Wilbourn, the release never became effective, and constituted no defense to plaintiff's claim or action. Mankin v. Bartley, 277 F. 960; Stiebel v. Grossberg, 202 N.Y. 266, 95 N.E. 692; Halloran v. Fischer, 126 Conn. 44, 9 A.2d 290; Carr v. Weiss, 215 Mass. 532, 102 N.E. 906; Pevesdorf v. Union Electric Co., 333 Mo. 1155, 64 S.W.2d 939; Meredith v. Brock, 322 Mo. 869, 17 S.W.2d 345; Ware v. Allen, 128 U.S. 509, 9 S.Ct. 174, 32 L.Ed. 563; Burke v. Dulaney, 153 U.S. 228, 14 S.Ct. 816, 38 L.Ed. 698; National Bank of Ky. v. Louisville Trust Co., 69 F.2d 97; American Surety Co. of N.Y. v. Egan, 62 F.2d 223; Jordan v. Davis, 108 Ill. 336; Kilcoin v. Ortell, 302 Ill. 531, 135 N.E. 16; Handley v. Drum, 237 Ill.App. 587; Tegtmeyer v. Nordlund, 259 Ill.App. 247; 13 C.J., p. 307, sec. 131; 17 C.J.S., p. 414, sec. 64. (3) The trial court did not err in overruling defendant's motion to dismiss based upon the ground that plaintiff had filed in this cause a so-called "stipulation for dismissal" because: that document having been executed on behalf of the defendant corporation by its claim agent, Heilig, who is not and never was an attorney at law, the filing of it in a court for the purpose of securing action by the court upon it would constitute the unauthorized practice of law and would be void as against public policy. Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 997; Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742; R.S. 1939, secs. 13313, 13314. (4) The statement of plaintiff's counsel, respecting the canons of legal ethics and the rules of this court regarding a lawyer's dealing with an opposing party represented by counsel in connection with settlement negotiations, was a reference to a live issue then presented by the pleadings, was substantiated to a great degree by evidence later adduced, and was made in good faith under the circumstances then existing. The trial court, therefore, did not abuse its discretion in permitting such reference to be made by plaintiff's counsel. Buck v. St. Louis Union Trust Co., 267 Mo. 644, 185 S.W. 208; F.L. Dittmeier R.E. Co. v. Southern Surety Co., 289 S.W. 877; State ex rel. Kansas City Pub. Serv. Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58; Dees v. Skrainka Const. Co., 8 S.W.2d 873; Thompson v. St. Louis S.W.R. Co., 183 S.W. 631. (5) The statement of plaintiff's counsel referring to the relationship between Mrs. Artz and defendant in connection with plaintiff's claim and suit was fully substantiated by the testimony and the occurrences at the trial. It was entirely proper for plaintiff's counsel to state what he expected the proof to show in that connection. Buck v. St. Louis Union Trust Co., supra. (6) Any impropriety in connection with the statement of plaintiff's counsel respecting Heilig's "hunting" plaintiff was cured by the trial court's action in sustaining defendant's objection to such statement and in instructing the jury to disregard the statement. There having been no ruling adverse to defendant in this connection, there is nothing here for review respecting it. Osby v. Tarlton, 336 Mo. 1140, 85 S.W.2d 27. (7) The arguments of counsel not having been preserved in the record in full, and only fragments of the argument of plaintiff's counsel being presented here, this court cannot rule that such argument constituted reversible error without convicting the trial court (who heard all the arguments and was in the best position to know whether improper influence was exerted) of error by mere implication. Monsour v. Excelsior Tobacco Co., 144 S.W.2d 62; Kelso v. W.A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Lewis v. Illinois Central R. Co., 50 S.W.2d 122; Gettys v. American Car & Foundry Co., 322 Mo. 718, 16 S.W.2d 85; Irons v. American Ry. Express Co., 318 Mo. 318, 300 S.W. 283; Wendler v. Peoples House Furn. Co., 165 Mo. 527, 65 S.W. 737; London Guarantee & Accident Co. v. Woelfle, 83 F.2d 325. (8) The argument of plaintiff's counsel referring the jury to the instructions given by the court, and asking them to read the instructions and find in them the law to which defendant's counsel had referred, was not in the least improper. In any event, such argument was but retaliatory to the argument made by defendant's counsel to the effect that the law was against plaintiff, and defendant is in no position to complain of such retaliatory argument. Authorities cited under Point (4), supra; Bobos v. Krey Packing Co., 323 Mo. 244, 19 S.W.2d 630; Jones v. Kansas City, 76 S.W.2d 340; Chicago & N.W.R. Co. v. Kelly, 84 F.2d 569. (9) The argument of plaintiff's counsel respecting the reasons given by Mr. Freels, one of defendant's general attorneys, for taking a part in the case cannot now be objected to by defendant upon grounds other than those raised at the trial. Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Gabelman v. Bolt, 336 Mo. 539, 80 S.W.2d 171; Smith v. Ohio Millers' Mut. Fire Ins. Co., 330 Mo. 236, 49 S.W.2d 42; Emerson v. Mound City, 26 S.W.2d 766; Busch v. Louisville & N.R. Co., 322 Mo. 469, 17 S.W.2d 337. (10) The argument affords no basis for reversible error, because defendant's objection to it was promptly sustained, and the jury promptly was instructed to disregard it -- the manner of restraint upon such argument being within the discretion of the trial court. Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58; Henry v. Illinois Central R. Co., 319 Mo. 432, 3 S.W.2d 1004; Lewis v. Illinois Central R. Co., 50 S.W.2d 122; Davis v. Querman, 22 S.W.2d 58. (11) In view of the nature, character and extent of plaintiff's injuries and damages, and in view of awards held not excessive in other cases for similar injuries and damages, the verdict and judgment are not excessive. Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; Rose v. Mo. District Telegraph Co., 328 Mo. 1009, 43 S.W.2d 562; Aly v. Terminal R. Assn., 119 S.W.2d 313; West v. Kurn, 158 S.W.2d 752; Bond v. St. Louis-S.F.R. Co., 315 Mo. 987, 288 S.W. 777.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for personal injuries under the Federal Employers Liability Act. 45 U.S.C.A., Secs. 51-60. Verdict and judgment for plaintiff for $ 45,000, and defendant appealed.

Plaintiff was a member of a section crew, and on September 17, 1941 was working, along with another crew, a few miles south of Mounds, Illinois. About midafternoon, plaintiff's foreman, Bird, and some of the men, went on a motorcar with trailer, from place where working, to Mounds. In a few minutes thereafter, another motorcar with...