Lomax v. Southwest Missouri Electric R. Co.

• Decision Date: 18 June 1906
• Citation: 119 Mo. App. 192,95 S.W. 945
• Parties: LOMAX v. SOUTHWEST MISSOURI ELECTRIC R. CO.
• Court: Missouri Court of Appeals

95 S.W. 945

119 Mo. App. 192

LOMAX v. SOUTHWEST MISSOURI ELECTRIC R. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

Rehearing Denied July 2, 1906.

1. RELEASE—VALIDITY—FRAUD—EVIDENCE.

A charge that a release of claims for a personal injury was procured by the fraud of the person liable therefor must be supported by satisfactory evidence.

2. SAME—AVOIDANCE OF RELEASE—STATUTES —CONSTRUCTION.

Rev. St. 1899, § 654, permitting a plaintiff to reply to an answer setting up a release by pleading that the same was procured by fraud and authorizing the submission to the jury of the issue thus raised, only determines a matter of practice, without interfering with the rule of law requiring a plaintiff seeking to avoid a release on the ground of fraud to tender to defendant the amount received for the release.

3. SAME—TENDER—NECESSITY.

A plaintiff suing for a personal injury must, to avoid a release of damages therefor, tender to defendant what was received for the release.

4. NEW TRIAL—HARMLESS ERROR.

A verdict against a party not entitled to recover on any theory of the case should not be set aside because of the giving of erroneous instructions.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by A. P. Lomax against the Southwest Missouri Electric Railway Company. From an order granting a new trial after a verdict in favor of defendant, it appeals. Reversed and remanded.

McReynolds & Halliburton, for appellant. Shannon & Shannon, for respondent.

ELLISON, J.

There was a collision between two passenger cars on defendant's electric railway in Jasper county. Plaintiff was a passenger on one of the cars and was injured. He brought the present action for damages alleged to have been sustained. A trial resulted in a verdict for the defendant. Afterwards plaintiff's motion for a new trial was sustained, and defendant appealed from that order.

Defendant's answer, besides denying negligence and damage, pleaded a release executed to it by plaintiff after the injury. Plaintiff's reply set up an avoidance of the release by a plea that it was obtained from him by fraud. Section 654, Rev. St. 1899. At the opening of the trial, defendant, by its counsel, admitted that the collision was through negligence, though it did not admit that plaintiff was damaged by its act. The main defense of defendant is based upon the release. So far as we can judge by the record, the defendant endeavored to make the release the foremost and principal issue. It offered instructions on no other branch of the case. On the other hand, the plaintiff in the first instance did not refer to the release during his first testimony; and it was not until after he had been cross-examined on the case that it was referred to by him. Then, on redirect examination, he testified concerning it in a very meagre way. On recross-examination his evidence was still more unsatisfactory. He did not offer an instruction on that subject, though all of defendant's (eight in number) were in relation thereto. The only reference to the release in plaintiff's instructions is contained in a single expression, where, after directing a verdict for plaintiff if certain matters were believed by the jury, there was added, "unless you should find from the evidence and instructions of the court that plaintiff is bound by the release." The fraud charged in plaintiff's reply in avoidance of the release was not shown in evidence. The evidence in plaintiff's behalf, from all sources, offered in support of such charge is far too vague, indefinite, and uncertain to be of any practical force. When the evidence for defendant is considered in such connection, it is not to be wondered that the jury found for defendant. The charge of fraud should have been supported by satisfactory evidence and not left to rest, as here, upon mere surmise and conjecture. It is not supported by a single positive statement or certain fact. Hancock v. Blackwell, 139 Mo. 453, 454, 41 S. W. 205; Mateer v. Railway Co., 105 Mo. 320, 16 S. W. 839; Mathis v. Railway Co., 185 Mo. 434, 459, 84 S. W. 66. If a verdict setting aside a release on the evidence in this case could be permitted to stand, it would have the practical effect of annulling all settlements and compromises of disputed claims; things which the law is supposed to look upon with favor. Notwithstanding the statute (...