Kemmler v. City of Richmond Heights

• Citation: 114 S.W.2d 994
• Decision Date: 01 April 1938
• Docket Number: No. 34965.,34965.
• Parties: KEMMLER v. CITY OF RICHMOND HEIGHTS et al.
• Court: United States State Supreme Court of Missouri

114 S.W.2d 994

KEMMLER v. CITY OF RICHMOND HEIGHTS et al.

No. 34965.

Supreme Court of Missouri, Division No. 1.

April 1, 1938.

Appeal from Circuit Court, St. Louis County, Division No. 4; Robert W. McElhinney, Judge.

Action for injuries by Louis Kemmler, a person of unsound mind, by Ella Kemmler, his guardian, against the City of Richmond Heights and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Reardon & Lyng and John H. Martin, all of St. Louis, for appellant.

J. M. Feigenbaum and Leon M. Feigenbaum, both of St. Louis, for respondent City of Richmond Heights.

Walter Wehrle, of Clayton, for respondent Charles Combs.

HYDE, Commissioner.

This is an action for $50,000 damages for personal injuries. The trial court directed a verdict for defendant City of Richmond Heights. The case was submitted to the jury on the liability of defendant Combs, and a verdict in his favor was returned. Plaintiff has appealed from the judgment discharging both defendants.

Plaintiff was injured September 30, 1933, in a collision between a truck owned by the city (as defendant City of Richmond Heights will be hereinafter designated) and an automobile driven by defendant Combs. Plaintiff was an employee of the city, and was riding on its truck. On December 16, 1933, plaintiff executed a release to Combs for $400, which Combs set up in his answer as a defense. At that time, plaintiff was working on a city CWA project, and had previously (November 18, 1933) executed a release to the city after receiving regular pay for seven weeks during which he did no work. Plaintiff's reply stated: "That the alleged purported releases mentioned in said defendants' separate answers were obtained from the plaintiff by gross fraud, misrepresentation and imposition, practised upon the plaintiff at the time of the alleged making thereof, in this, that at the time of the alleged making of said purported releases this plaintiff was confined to his home in the deepest distress, and mental and bodily pain and anguish, * * * and was unable on account of his bodily and mental condition to understand or comprehend the contents of said alleged contracts of release, and never did assent to the terms and provisions thereof." The fraud alleged was that the city attorney, who represented plaintiff on his claim against defendant Combs, on behalf of both defendants, "did by undue influence and by misrepresentation and fraud take advantage of plaintiff's condition, and did induce him to sign said papers upon the representation to plaintiff that said papers were merely for the purpose of obtaining the record of his care and attention whilst in the St. Louis County Hospital."

When the case was called for trial, oral motions were made by both defendants to require plaintiff to elect between the claim of fraud and the claim of mental incapacity. These motions were sustained and exceptions saved. Plaintiff assigns this action as error. We cannot review this ruling because it was not set out by plaintiff as a ground for new trial in his motion for a new trial, or in any way mentioned therein. Section 1061, R.S.1929, Mo.St.Ann. § 1061, p. 1346. It is therefore unnecessary to consider the effect of such oral motions or the court's action thereon.

Plaintiff mentions refusal of evidence in his assignments of error on the judgment for Combs, but does not disclose in his points and authorities or argument any particular evidence to which this refers. It will be considered as abandoned. The case was submitted as to Combs (who admitted negligence and liability for the collision) on the question of plaintiff's mental capacity on December 16, 1933, to make the release to him. Plaintiff makes no complaint as to the instructions submitting this issue upon which the jury found against him. There is, therefore, no reason for setting out the conflicting evidence that was offered on this issue.

Plaintiff's final assignment of error as to Combs is that the court erred in giving an instruction, "that the issue of fraud or misrepresentation in procuring the release, pleaded in this case, is withdrawn from your consideration." Plaintiff made no proof to show that defendant Combs or the insurance company representing him did anything improper or had knowledge of improper action, if any, in the negotiations for settlement. They dealt solely with plaintiff's attorney in obtaining settlement and release. No evidence was offered to show collusion between them. Moreover, if plaintiff ever made an election between the grounds of fraud and mental incapacity, on the issue of the validity of Combs' release, the record does not show it, and plaintiff argues here that there is ample evidence in the record to show fraud. This seems to be based partly upon the theory of taking advantage of plaintiff's mental incapacity, and the jury found against plaintiff on that issue. It is further urged that, because there is a confidential relationship between attorney and client, defendant Combs had the burden to prove that plaintiff's attorney was not guilty of fraud in obtaining this release. Plaintiff relies upon the rule, once announced in will cases, that "where a confidential relationship has been shown the burden of disproving fraud and undue influence is shifted to the one who has gained the advantage." The cases so holding were overruled by this court en banc in Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, and the rule was stated that showing a confidential relation only raised no presumption of undue influence. Since plaintiff did not even make an offer of proof as to the specific act of fraud alleged in this reply, concerning misrepresentation of the contents of the release, and since the jury found against plaintiff on the issue of mental incapacity (which was also the principal injury claimed, to wit, traumatic psychosis), we cannot find that the court's instruction withdrawing the issue of fraud was prejudicial to plaintiff.

Plaintiff also assigns as error the action of the court in directing a verdict for the city. The question raised is whether or not any negligence of the truck driver, which contributed to cause plaintiff's injury, was merely negligence of a fellow servant for which the city would not be liable. Plaintiff's evidence is the only evidence on this issue. Zwicki, who was driving the truck, testified that "in September, 1933, he was a laborer half a day a week, and rode...