Louisville & N.R. Co. v. Carter

• Decision Date: 04 February 1902
• Citation: 66 S.W. 508
• Parties: LOUISVILLE & N. R. CO. v. CARTER. [1]
• Court: Kentucky Court of Appeals

66 S.W. 508

LOUISVILLE & N. R. CO. v. CARTER. ^[1]

Court of Appeals of Kentucky.

February 4, 1902

Appeal from circuit court, Simpson county.

"Not to be officially reported."

Action by Isaiah Carter against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.

Edward W. Hines, James A. Mitchell, Walker D. Hines, and H. W Bruce, for appellant.

Bennett H. Young, Goodnight & Roark, Gerald T. Finn, and Hazelrigg &amp Chenault, for appellee.

WHITE J.

The appellee brought this action for damages for personal injuries received while traveling as a passenger on a freight train in charge of a shipment of live stock. The injury was caused by a rear-end collision,--a freight train following run into one on which appellee was riding. The charge of negligence was in the operation of the trains. Appellant answered, denying negligence or liability by reason thereof and pleaded contributory negligence of appellee. In addition to these pleas, the appellant pleaded accord and satisfaction by reason of a compromise agreement entered into with the appellee, by which appellee was paid $2,000 in money and all his expenses incurred in his illness. Appellee replied denying contributory negligence; denied accord and satisfaction (that is, admitted that he had been paid $2,000, but said that he was overreached and defrauded in the settlement; that it was made when he was not in his right mind,--when, by reason of his illness and suffering, he did not know or have capacity to understand the agreement he was making; in fact was for the time non compos). Appellee then tendered back the money so received in the compromise settlement, and sought judgment. For rejoinder appellant denied that appellee was overreached or defrauded, or that he was of unsound mind or non compos when the agreement was reached or the money paid, and pleaded further that, if it were true that appellee did not know what he was doing, or did not have mental capacity to contract when the compromise was made, yet, that after he got well, and was of sound mind, and had a clear and full understanding of what had been done, and of the payment of the money to him, he ratified the compromise agreement, and kept the money with full knowledge of all the facts as to how it was paid him. The ratification was denied. Upon the issues thus presented the case went to trial before a jury, and resulted in a verdict and judgment for appellee for $5,000, less $2,000 already received. After appellant's reasons and motion for a new trial had been overruled, this appeal is prosecuted.

The reasons for new trial cover many rulings of the court in admitting and excluding testimony of witnesses, especially of Edwin M. Williams; also rulings of the court in giving and refusing instructions; because the verdict is against the law and evidence. In the view we have taken of the case we deem it unnecessary to discuss many of the questions of testimony presented, but there is one presented that is novel, and goes to nearly the whole of the evidence of the witness Williams, which it is proper to discuss. It seems that at the time appellee, Carter, was injured, there was another person on the same train that was killed by the collision. While appellee was in the hospital, he gave a deposition in the other case, in which he undertook to detail the incidents and facts as to the accident. This deposition was given before Edwin M. Williams, a notary, who took the questions and answers in shorthand. Williams then read his shorthand notes to a phonograph, and from the phonograph they were heard and written out on typewriter by an employé of Williams. Appellee did not hear the deposition read after it was typewritten, nor was it signed by him, the signature being waived by the parties to the action in which taken. In making the typewritten copy, a carbon copy was made at the same time. This carbon copy was produced by the witness Williams as a part of his deposition, but the court refused to permit the exhibit to be read. Of this action complaint is made. We are of opinion that in this ruling there was no error. While the deposition could be used in the case in which taken without the signature of the appellee witness because of the agreement to waive the signature, it could not be used in this case against appellee as his statement without his signature or approval after it had been put in readable form. The parties to the suit were at liberty, if they so desired, to waive the signature, and risk the accuracy of the stenographer and his clerk to correctly report the statements of appellee as a witness, but their waiver did not bind appellee. The witness Williams did not undertake, from memory, to say what appellee had testified to, but filed the carbon copy of the deposition as an exhibit, and then verified the carbon copy. In our opinion, this did not bring the carbon copy within the rule of admissible evidence, and the exception to that part of the deposition was properly sustained.

The testimony as to the compromise agreement and as to the subsequent ratification, as well as the mental capacity of appellee, as it appears from the record, is about...