Koerner v. Northern P. Ry. Co.
| Decision Date | 15 December 1919 |
| Docket Number | 4046. |
| Citation | 186 P. 337,56 Mont. 511 |
| Parties | KOERNER v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; A. C. Spencer Judge.
Action by Jacob C. Koerner against the Northern Pacific Railway Company. From a judgment for defendant, and an order denying his motion for a new trial, plaintiff appeals. Reversed and remanded.
E. E Enterline, of Billings, and Knauf & Knauf, of Jamestown, N D., for appellant.
Johnston & Coleman, of Billings, and Gunn, Rasch & Hall, of Helena, for respondent.
Jacob C. Koerner was injured while employed by the Northern Pacific Railway Company repairing a water tank at Brackett, N. D., and brought this action to recover damages. At the conclusion of the evidence the trial court directed a verdict for the defendant, and plaintiff has appealed from the judgment entered thereon and from an order denying his motion for a new trial.
1. The injury resulted from the bursting of a water tank, and the negligence relied upon was the use of nails, instead of wrought iron rivets, for splicing the steel hoops used to hold the staves of the tank in place, and permitting the nails to rust and corrode, so that they became weakened, thus rendering the tank unsafe and dangerous. This case is not analogous to the case of Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 P. 416, 135 Am. St. Rep. 630, wherein the complaint set forth general allegations of negligence, followed by a statement of the particular acts of negligence which proximately caused the injury. As we read this complaint, it charges negligence in the use of the nails, and also in permitting them to rust and corrode. The adverb "thus," used in the concluding clause of paragraph 4, characterizes both acts, and not the last one merely.
2. Without reviewing the evidence at length, we content ourselves with saying that we think it is sufficient to make out a prima facie case of actionable negligence.
3. In bar of plaintiff's right to recover, the defendant alleged in its answer that, after the injury was received by plaintiff, the defendant company paid him $1,250 in full settlement and discharge of all claims for damages arising from the injuries occasioned by the bursting of the water tank, and received a written release or acquittance signed by plaintiff. In reply the plaintiff alleged that, if he ever signed a release or acquittance, he did so at a time when his faculties were so impaired as the result of his injury that he was mentally incompetent to enter into the contract.
Upon the trial defendant introduced in evidence the draft for $1,250, with plaintiff's indorsement thereon showing that the same had been paid, evidence that plaintiff had used the money, and the release signed by plaintiff. In explanation plaintiff testified that he met Taylor and Bohn, the defendant's claim agents, at their request, for the purpose of considering a settlement of his claim for damages; that, after some preliminary remarks, Taylor, who acted as spokesman, offered him $1,000; that he indignantly refused the offer, and, when Taylor asked him to state the amount he wanted, he replied that he would not settle with Taylor at all; that Taylor then said in effect that as it would be only a short time until he would be practically well-perhaps a year all told -the company would pay him $75 per month for a year's lost time, and $350 to compensate his mother for boarding him and caring for him during that period, and then give him an examination to ascertain his physical and mental condition, and settle with him for his injuries; and that this proposition was satisfactory to him. Plaintiff testified further as to the character and extent of his injury-a fracture of the skull, necessitating a trephining operation-the resulting pains in his head, and epileptic fits. He testified that on the morning he met the claim agents he was suffering intensely from pains in his head and was under the influence of opiates; that during the conference he had dizzy spells; that after the proposal satisfactory to him was made he had no further recollection of what transpired, until the afternoon, when he found himself at his mother's home; that he had no recollection of receiving the draft or signing the release, and never consciously agreed to a final settlement or release, and that, if he had been in control of his faculties, he would not have made final settlement for the amount mentioned in the release, and would not have signed the release. His mother testified as to plaintiff's mental and physical condition when he left her home to meet the claim agents and his condition when he returned. Two physicians testified that in their opinion he was not mentally competent to enter into the settlement agreement.
Counsel for respondent have cited many cases, in each of which the claimant sought to avoid a settlement agreement. We are not prepared to say that we find fault with the conclusion reached in any of them. In most of the cases there was clearly a failure on the part of the claimant to maintain the burden of showing that the release was not his voluntary act. Two of the cases are exceptional. In Laird v. Union Traction Co., 208 Pa. 574, 57 A. 987, it is said:
"No rule of equity is better established in this state than that to set aside a written instrument the evidence must be 'clear, precise, and indubitable,' whether the allegation be fraud practiced by the beneficiary under it or incapacity on the part of him who executed it."
In Pope v. Bailey-Marsh Co., 29 N.D. 355, 151 N.W. 18, it is said:
"This court in numerous instances has recognized and enforced the general rule that solemn written instruments cannot be impeached for fraud or other cause, except upon proof that is clear, satisfactory, and convincing, and of such character as to leave in the mind of the chancellor no hesitation or substantial doubt."
Assuming the correctness of the rule announced in these cases, the conclusion in each is probably justified; but that rule does not obtain here. Section 8028, Revised Codes, establishes the rule in this jurisdiction as follows:
"In civil cases the affirmative of the issue must be proved, and when the evidence is contradictory the decision must be made according to the preponderance of the evidence."
Under this statute, fraud or lack of mental capacity may be established by a bare preponderance of the evidence. Gehlert v. Quinn...
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