Lomax v. Southwest Missouri Electric Ry. Co.

• Decision Date: 16 May 1904
• Citation: 81 S.W. 225,106 Mo.App. 551
• Parties: A. P. LOMAX, Appellant, v. SOUTHWEST MISSOURI ELECTRIC RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

81 S.W. 225

106 Mo.App. 551

A. P. LOMAX, Appellant, v. SOUTHWEST MISSOURI ELECTRIC RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

May 16, 1904

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

Affirmed.

Shannon & Shannon for appellant.

(1) Under the allegations of the petition the release obtained of appellant was not void, but voidable. 14 Am. and Eng. Ency. Law (2 Ed.), p. 156. (2) The fraud in obtaining the release is sufficiently pleaded. Martin v. Lutkewitte, 50 Mo. 58; Link v. Link, 48 Mo.App. 345; Reed v Bott, 100 Mo. 62. (3) Every element of a cause of action for deceit is set forth in the petition. 14 Am. and Eng. Ency of Law (2 Ed.), p. 23. (4) Eliminating the allegation of deceit the petition states a cause of action for the reason that it alleges such a mental condition of appellant as to impose upon respondent the burden of proving that the release in question was obtained by fair means. 14 Am. and Eng. Ency. Law (2 Ed.), p. 194. (5) When a person who has been drawn into a contract by fraud does not seek to rescind the same but merely seeks to recover the damages sustained by reason of the fraud, he is not required to return, or offer to return, what he has received under the contract. 14 Am. and Eng. Ency. Law (2 Ed.), p. 168; Parker v. Marquis, 64 Mo. 38; Nauman v. Oberle, 90 Mo. 666; Brownlow v Wollard, 61 Mo.App. 124.

McReynolds & Halliburton for respondent.

(1) If the statements in plaintiff's amended petition are true, then plaintiff's original cause of action is in full force and effect, and authorities in this and other States are abundant upon this point, as well as our own code, which specially provides for the meeting of the issue of fraudulent releases, such as are alleged to have been obtained in this case. R. S. 1899, sec. 654; Courtney v. Blackwell, 150 Mo. 245; Goodson v. Accident Ass'n, 91 Mo.App. 351; Roberts v. Lead Co., 95 Mo. 581. (2) In so far as it appears from plaintiff's amended petition one hundred dollars may have been the full amount of his compensatory or actual damages and the $ 4,400, claimed as punitive damages, if this be true, and he has been paid in full for compensatory damages sustained, then he can not maintain an action for punitive damages, for actual damages must be found as a predicate for the recovery of exemplary or punitive damages. Hoagland v. Amusement Co., 170 Mo. 335; Mills v. Taylor, 85 Mo.App. 111; 1 Sutherland on Damages (2 Ed.), sec. 406; Maxwell v. Kennedy, 50 Wis. 648; Scheppel v. Norton, 38 Kan. 567; Jones v. Mathews, 75 Tex. 1; Kuhn v. Railroad, 74 Iowa 137; Stacey v. Pub. Co., 68 Me. 287. (3) Another course under the practice of our courts stands open to the plaintiff in this case "to invoke the ancient jurisdiction of equity to eliminate by cancellation, the paper as an impediment to the enjoyment of his rights, its validity not appearing on its face. Roberts v. Lead Co., 95 Mo.App. 581; Dunn v. Miller, 96 Mo. 324.

OPINION

BROADDUS, J.

This case went off on a demurrer to the plaintiff's amended petition. This latter after setting out the negligent acts of the defendant by which plaintiff alleges he was injured in his person and for which he claims he was entitled to recover from defendant actual and punitive damages in the sum of $ 4,500, proceeds as follows:

"Plaintiff further says that immediately after said collision, the defendant, for the purpose of ingratiating itself into the confidence and esteem of the plaintiff, and for the purpose of acquiring an influence over him and excluding him from his friends and depriving him of the advice of counsel, took possession of the plaintiff and placed him in a hospital in Joplin, Missouri, and caused him to be cared for by nurses and physicians, and thereby did ingratiate itself into the confidence and esteem of plaintiff. That thereafter, while plaintiff was still suffering in body and mind as a result of the aforesaid injuries, and while he was not in possession of his mental faculties sufficiently to comprehend or rationally judge of the effect and extent of his aforesaid injuries, and to comprehend and determine the cause of the same, and the responsibility of the defendant therefor, and while his mental faculties were depressed and disordered so as to render him unfit to transact business, and before he had learned that said collision and the injuries resulting to himself therefrom were due to the carelessness and negligence of defendant, the said defendant, while knowing the aforesaid condition of the plaintiff and all the aforesaid facts through its agents, physicians and servants, by means of false and fraudulent representations and pretenses, and by means of an undue influence over plaintiff acquired by the manner and means hereinbefore stated, and by taking advantage of the...