McCoy v. James T. McMahon Const. Co.

• Decision Date: 01 December 1919
• Docket Number: No. 19785.,19785.
• Citation: 216 S.W. 770
• Parties: McCOY v. JAMES T. McMAHON CONST. CO.
• Court: Missouri Supreme Court

216 S.W. 770

McCOY v. JAMES T. McMAHON CONST. CO.

No. 19785.

Supreme Court of Missouri, Division No. 1.

December 1, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by William McCoy against the James T. McMahon Construction Company. From an order overruling a motion to set aside an involuntary nonsuit, plaintiff appeals. Affirmed.

John A. Blevins and E. E. Schowengerdt, both of St. Louis, for appellant.

Kelley & Starke, of St. Louis, for respondent.

BLAIR, P. J.

This is an appeal from an order overruling a motion to set aside an involuntary nonsuit in an action for damages for injuries appellant alleges he suffered by reason of respondent's negligence in failing to furnish him, as its employé, a safe place to work. Respondent was engaged in constructing a sewer. Appellant signed a release. The consideration he received therefore was not returned or tendered to respondent before this action was begun. The principal question argued here is whether the failure to make such return or tender justified the trial court's ruling. In support of his contention that it did not do so, appellant argues that (1) the release was obtained by fraud and coercion; (2) (2) he was unable to discover before he brought his action what the consideration for the release was; (3) after suit brought he was misinformed by respondent's then counsel as to the consideration for the release; (4) no tender is necessary under section 1812, R. S. 1909; (5) respondent's failure to accept the tender made in appellant's reply shows a tender before suit would not have been accepted; (6) respondent's failure to state whether it would accept the tender in the reply constituted a waiver of any right to rely upon a want of tender before the action was begun; (7) respondent pleaded a false release in its answer, and therefore ought not to be permitted to rely upon any release.

I. Appellant states his first point thus:

"The record shows that plaintiff was in the hospital, sick, in bed, with his head all bandaged up, and worn out from loss of sleep, and suffering from the injury to his eye. The defendant's claim agent and the doctor appeared upon the scene, and at the first interview insisted upon him signing the paper they had. The plaintiff testified: `I told him I was sick, and didn't know anything about the paper; didn't feel like talking. I told him—I says, "You come back some other day." No; I must sign the paper now if I wanted the money, and if I didn't sign the paper, why the company would stop the doctor's bill and cut the hospital bill out.' On cross-examination he testified: `He told me that the company sent him out here to pay me $75; that if I didn't take that, I wouldn't get nothing; and that he had the release for me to sign, and said if I didn't sign this release he would cut the doctor's bill out, and cut the hospital bill off, and I would have to get out of the hospital.'"

Counsel contend this discloses the release was signed "under threats and coercion," and "is absolutely void, and gives the defendant no rights whatever before suit brought or afterward."

(a) Duress might be such as to render a settlement void at law. The actual application of force to compel the act of signing a release would constitute an instance. Ordinarily duress renders a contract voidable, not void, and the same duty arises to put the other party in statu quo before avoiding the contract as exists in cases of fraud in the treaty. Wood v. Telephone Co., 223 Mo. loc. cit. 563, 564, 123 S. W. 6; Bushnell v. Loomis, 234 Mo. loc. cit. 381, 382, 137 S. W. 257, 36 L. R. A. (N. S.) 1029. Even if the evidence on which appellant relies tends to prove duress, the rule of these decisions would be applicable. Further, appellant testified that after his subsequent discharge from the hospital he used the money, respondent paid him. He thus ratified the contract so far as the claim of duress is concerned. Bushnell v. Loomis, supra. Again, duress per minas is ordinarily not predicable of a mere threat to exercise a clear legal right. In this case there is no evidence respondent was under any legal obligation to furnish appellant with medical attention. If liable for damages for his injury, it was also liable for his expenditures for such service, but not obligated, merely for that reason, to provide it in the first instance. Neither did it appear that had appellant been compelled to leave the hospital his condition would have been affected injuriously. The claim of duress cannot aid appellant on this record.

(b) Upon the same evidence appellant contends the release was fraudulently procured, and therefore no tender was necessary. Before the rule requiring tender before suit becomes applicable there must be a release. If the instrument or agreement relied upon never existed in fact or is void at law, no tender can be required. Fraud in the factum renders the contract void, and no tender is necessary. Fraud in the treaty renders it merely voidable, and, absent some other ground dispensing with the rule, tender is prerequisite to an action on the...