Lomax v. Southwest Missouri Electric Electric Company
| Decision Date | 18 June 1906 |
| Parties | A. P. LOMAX, Respondent, v. SOUTHWEST MISSOURI ELECTRIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.
REVERSED AND REMANDED (with directions).
Order reversed and cause remanded.
McReynolds & Halliburton for appellant.
(1) There is no evidence to show fraud in the execution of the release. (2) A release purporting on its face to be a complete settlement and to contain the whole agreement between the parties, has in its favor the strong presumption of validity, which applies to all written instruments, and the evidence to set it aside must be clear, precise and indubitable. 59 Central Law Journal, 404; Hiroland v Blake, 97 U.S. 624; Ins. Co. v. Nelson, 103 U.S. 544; Railroad v. Shay, 92 Pa. 198; Ivery v Phillips, 196 Pa. 1; Stull v. Thompson, 154 Pa 43; Albrecht v. Milwaukee & Superior Co., 87 Wis 105; Railroad v. Belliwith, 83 F. 437; Upton v. Tribilcock, 91 U.S. 45; Vickers v. Railroad, 71 F. 139; Wallace v. Railroad, 67 Iowa 547; Rice v. Mfg. Co., 2 Cush. 80; Hennessy v. Bacon, 137 U.S. 78-85; Cleveland v. Richardson, 132 U.S. 318; DeDouglass v. Traction Co., 198 Pa. 430. (3) A written release of damages cannot be impeached for fraud not inhering in the execution of the instrument. 59 Central Law Journal, 405; Hill v. Railway, 113 F. 914; Whitehead v. Shattuck, 138 U.S. 146; Johnson v. Granite Co., 53 F. 569; Sheffield v. Witherow, 149 U.S. 574; Lindsay v. Bank, 156 U.S. 485; Vandervelden v. Railway, 61 F. 54; Papke v. Hammond Co., 192 Ill. 631; Windett v. Hurlbut, 115 Ill. 403; Och v. Railway, 130 Mo. 43. (4) The plaintiff did not return or offer to return the money paid him until a trial of this cause commenced, when he deposited the money with the clerk and afterwards within a few days withdrew it, thereby withdrawing his tender of the money, and the tender was not made until nearly two years after the settlement and was not within a reasonable time. McNealy v. Baldridge, 106 Mo.App. 11-18. (5) It is a general rule that a person seeking to avoid a release on the ground of fraud or misrepresentation cannot maintain his action until he has returned or offered to return what he has received, and the offer should be made at the earliest practical moment. 59 Central Law Journal, 406; Gibson v. Railroad, 164 Pa. 142; Wheeler v. Mather, 56 Ill. 241; Willington v. King, 49 Ill. 449; Wolf v. Dietsch, 75 Ill. 205; Hall v. Fullerton, 69 Ill. 448; McCarty v. Marlette, 80 Ill. 526; Brown v. Hartford Ins. Co., 117 Mass. 479; Bertrand v. St. Louis Transit Co., , Mo.App. 82 S.W. 1089; Hancock v. Blackwell, 139 Mo. 453; Roberts v. Central Lead Co., 95 Mo.App. 597; Dwyer v. Railroad, 66 Mo.App. 338; McNealy v. Baldridge, 106 Mo.App. 18. (6) It is not ground for the avoidance of a release of damages from personal injuries that the injured person had an erroneous opinion that the injuries were less than they really were and executed release while so believing, 59 Central Law Journal, 406; Railroad v. Willcox, 116 F. 913, reversing 111 F. 435; Kowalke v. Milwaukee, etc., Light Co. (Wis.), 79 N.W. 762; Seeley v. Traction Co., 179 Pa. 134. In Atchison, etc., Railroad v. Bennett, 63 Kan. 781, a settlement was upheld on the general doctrine that an erroneous opinion that an injury was not permanent was not a basis for fraud. Homuth v. Railroad, 129 Mo. 629; McFarland v. Railroad, 125 Mo. 253-277. (7) That one who signed a release did not read it is no ground for its avoidance if the failure to read is the signer's own negligence. It cannot be tolerated that a man shall execute a written instrument and when called upon to abide by its terms say merely he did not read it or know what it contained. 59 Central Law Journal, 408; Albrecht v. Milwaukee, etc., Co., 87 Wis. 105; Railroad v. Belliwith, 83 F. 437; Fuller v. Ins. Co, 36 Wis. 603; Sangner v. Dun, 47 Wis. 615; Railroad v. Voight, 176 U.S. 498; Railroad v. Difendaffer, 125 F. 893; Upton v. Tribilcock, 91 U.S. 45; Keller v. Orr, 106 Ind. 406; Thoroughgood's Case, 2 Coke 9; Wheeler Wilson Co. v. Long, 9 Ill.App. 463; Railroad v. Smith (Tex. Civ. App.), 68 S.W. 548; Travelers' Ins. Co. v. Henderwon, 69 F. 762; Railroad v. ---, 82 Pa. 198; Hill v. Railroad, 73 N.Y. 351; Mateer v. Railroad, 105 Mo. 320; Ins. Co. v. Hodkins, 66 Me. 109; Andrus v. Smelting Co., 130 U.S. 643; McCormack v. Molburg, 43 Iowa 561; Campbell v. Laramore, 84 Ala. 499; Hawkins v. Hawkins, 50 Cal. 558; Halliher v. Railroad, 59 Iowa 416; The Annie L. Mulford, 107 F. 525; Fivey v. Railroad (N. J. Ct. of App.), 52 A. 472; Seeright v. Fletcher, 6 Blackf. 380; Ins. Co. v. McWhorter, 78 Ind. 136; Johnston v. Ins. Co., 93 Mo.App. 590; McNealy v. Baldridge, 106 Mo.App. 18; Mathis v. Stock Yards Co., 185 Mo. 434. (8) Inadequate consideration is not alone sufficient to set aside a release, but is properly considered with other evidence tending to show fraud. 59 Central Law Journal, 409-10; Railroad v. Phillips, 66 F. 35; Forbis v. Railroad, Mo.App. , 82 S.W. 562. (9) Under the undisputed facts in this case the verdict was for the right party, and the court erred in granting a new trial even though instruction number 8 was erroneous. Homuth v. Railway, 129 Mo. 629-643; Moore v. Railroad, 176 Mo. 545; Wagner v. Electric Ill. Co., 177 Mo. 60.
Shannon & Shannon for respondent.
(1) Where a party makes a representation not knowing whether it is true or false, the consequence is the same as if he knew it to be false. Caldwell v. Henry, 76 Mo. 254; Dunn v. White, 63 Mo. 181; Walsh v. Morse, 80 Mo. 560; Pumroy v. Benton, 57 Mo. 531; Pumroy v. Benton, 77 Mo. 64; Hamilton v. Able, 120 Mo. 188; Dulaney v. Rogers, 64 Mo. 201; McBeth v. Craddock, 28 Mo.App. 380; Ring v. Vogle P. & G. Co., 44 Mo.App. 111. (2) Where the injured party is ignorant and the defendant's surgeon makes a false statement knowing that such statement will be the basis of a settlement, the settlement will be set aside. Lumley v. Railroad, 76 Fed, Rep. 66. (3) In actions at law it is not necessary to tender back the consideration received for release. The rule requiring a tender in order to the effect of a release is a rule in equity based upon the equitable maxim that he who asks equity must do equity. In an equitable proceeding the relief sought is a cancellation of a release and equity will not exercise its jurisdiction unless it can place the parties in statu quo. 24 Am. and Eng. Enc. Law (2 Ed.), pp. 318, 319, 320, 621; Dwyer v. Railroad, 66 Mo.App. 335; Girard v. Carwheel Co., 130 Mo. 27. (4) Sec. 654, R. S. 1899, making fraud in the procurement of a release of damages available by way of reply in an action for damages does not vest the court in an action at law with power to cancel and set aside a release. It dispenses with the necessity of setting it aside and permits a recovery notwithstanding the existence of a release, where the same was procured by fraud. Therefore it follows that a tender back of the consideration for the release is not necessary. (5) In as much as the statute makes fraud in the procurement of a release available by way of reply where the defense of a release is pleaded in the answer, it necessarily follows that the tender, if necessary at all, would be timely if made in a reply. This is a logical sequence of the rule that a tender made in a bill for cancellation is sufficient. Roberts v. Lead Co., 95 Mo.App. 581. (6) The rule requiring the tender back of the consideration for a release before entertaining jurisdiction to set aside a release being an equitable one, it should not be enforced where it would operate so as to enable a party to retain the fruits of his fraud. In this case the respondent sets up in his reply that the only reason why he did not tender back to the appellant the amount received for the release in controversy was because he was so poor that he was unable to do so, and the evidence supports this allegation. This is supposed to be a sufficient excuse, even in a court of equity, for not tendering back the consideration for a release. Strodder v. Granite Co., 94 Ga. 626; Bowen v. Achor, 95 Ga. 243. (7) A party need never restore that which in any event of the suit he is entitled to retain. Goodson v. Accident Assn., 91 Mo.App. 339.
--There was a collision between two passenger cars on defendant' 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. [R. S. 1899, sec. 654.]
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...
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