Levister v. Southern Ry. Co.

• Court: South Carolina Supreme Court
• Writing for the Court: McIVER, C.J.
• Citation: Levister v. Southern Ry. Co., 56 S.C. 508, 35 S.E. 207 (S.C. 1900)
• Decision Date: 07 March 1900
• Parties: LEVISTER v. SOUTHERN RY. CO.

35 S.E. 207

56 S.C. 508

LEVISTER v. SOUTHERN RY. CO.

Supreme Court of South Carolina

March 7, 1900

Appeal from common pleas circuit court of Richland county; George W Gage, Judge.

Action by A. H. Levister against the Southern Railway Company. From an order sustaining defendant's demurrer to plaintiff's reply to defendant's answer, plaintiff appeals. Affirmed.

Andrew Crawford and J. S. Muller, for appellant.

B. L Abney, for respondent.

McIVER C.J.

This was an action brought by the plaintiff to recover damages from the defendant company for certain injuries received by him through the alleged negligence of said company. The defendant answered, setting up, among other defenses, a second defense as follows: "That after the time of the alleged injury, and before the commencement of this action the defendant delivered to the plaintiff, and the plaintiff received from the defendant, the sum of $210 in full release, satisfaction, and discharge of all claims for damages resulting from the injury alleged in the said complaint." The defendant also applied for and obtained from his honor, Judge Buchanan, an order requiring the plaintiff to reply to the new matter set up in the second defense set out above, which order was not excepted to. In accordance with this order the plaintiff filed his reply, in the first paragraph of which he denies each and every allegation contained in the second defense, "except as hereinafter admitted." The second paragraph of the reply is as follows: "Admits that plaintiff did sign and deliver to the defendant a certain paper, purporting to be a release, to the effect stated in said second defense of the answer, but alleges with reference thereto that the same was fraudulently procured from him by the defendant, in that he was given to understand by said company that, if he would sign the paper, the defendant would pay him his regular salary of $35 per month for six months, and would give him employment out of which he might earn a living, whereas the said company never intended to give him such employment, and has failed and refused to do so, although requested to do so by this plaintiff, in consequence whereof the said paper purporting to be a release was wholly void." To this reply defendant company demurred upon the three grounds set out in the "case," the second of which reads as follows: "Because the said reply does not contain or state any facts showing that the plaintiff has rescinded said release, and has returned or offered to return to the defendant the consideration thereof, before the commencement of this action." Upon this demurrer the case was heard by his honor, Judge Gage, who granted an order (set out in the "case") sustaining the demurrer on the second ground, and overruling the first and third grounds. From this order plaintiff appeals upon the several grounds set out in the record, and the defendant, according to the proper practice, gave notice that it would ask this court to sustain the demurrer, as well as upon the second ground. The order of the circuit judge, together with the plaintiff's grounds of appeal therefrom, should be incorporated by the reporter in his report of the case.

Before proceeding to the consideration of what we regard as the only question in the case, it is necessary to notice a point raised in the argument here,--that the pleadings do not show that the plaintiff ever received the money ($210) alleged in second defense to have been received by the plaintiff as consideration for the release. It is only necessary to say that no such point is presented by this appeal. The circuit judge in his order manifestly construed the pleading as admitting the receipt of this money by the plaintiff, and goes on to consider the only question in the case,--whether the plaintiff could maintain this action without first returning or offering to return the money so received; and to this part of the order no exception was taken and it was not even alluded to in the grounds of appeal. Accordingly we find in the statement made by appellant's counsel in their argument the following language: "The only substantial question raised by the appeal is whether, in a case like this, where a paper purporting to be a release has been procured from the plaintiff by the admitted fraud of the defendant, the plaintiff is precluded from bringing his action for the injury he has sustained until he has first returned or offered to return the amount stated in such alleged release in consideration thereof." If that was the only question in the case, how could any other question be considered? And, more than that, if, as appellant's counsel have attempted to contend in their argument, no money was ever paid to plaintiff as a consideration for the release, how is it possible that the only substantial question raised by the appeal, as that stated in the preceding quotation, could be any question at all, much less a substantial question, in the case? We may add, however, that, even if the question as to whether any money was received by the plaintiff as a consideration for the release was properly before us, the view taken by the circuit judge might well be supported; for it will be observed that the second defense set up in answer to the allegation is that after the alleged injury was sustained, and before the commencement of this action, "the defendant delivered to the plaintiff, and the plaintiff received from the defendant, the sum of $210 in full release, satisfaction, and discharge for all claim for damages resulting from the injury alleged in the said complaint." And in the reply plaintiff admits that he did sign and deliver to defendants a paper purporting to be a release, "to the effect stated in second defense"; and the effect stated in the second defense was that the money was paid and received in full release, etc. The pretense that the money paid to him was not paid as a consideration for the release, but for his regular wages for six months at the rate of $35 per month, is not only inconsistent with his admission to...