McKim v. Metropolitan Street Ry. Co.

• Decision Date: 11 June 1917
• Docket Number: No. 12514.,12514.
• Citation: 196 Mo. App. 544,196 S.W. 433
• Parties: McKIM v. METROPOLITAN STREET RY. CO.
• Court: Missouri Court of Appeals

196 S.W. 433

196 Mo. App. 544

McKIM v. METROPOLITAN STREET RY. CO.

No. 12514.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Rehearing Denied July 2, 1917.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by James McKim against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

Cowherd, Ingraham & Durham and Hale Houts, all of Kansas City, for appellant. Clyde Taylor and Charles A. Stratton, both of Kansas City, for respondent.

ELLISON, J.

Plaintiff was a conductor on one of defendant's street railway cars. He was injured at a crossing with the tracks of the Missouri Pacific Railway Company. He charged his injury to the joint negligence and wrong of that company and defendant. For the sum of $600 he released the Missouri Pacific Company by a duly executed written paper. He then brought the present action against the defendant, the street railway company, and the latter, on its answer, pleaded such release as operating its own discharge also. Plaintiff then in his reply sought to avoid the release by a plea that it was intended only as a covenant not to sue the Missouri Pacific, and that, by mistake, it was made to read as a release; and at the trial he sought to prove this by parol testimony, and the court refused to permit him. Judgment was rendered for defendant.

We decided in Arnett v. Railroad, 64 Mo. App. 368, that a release of one of several joint tort-feasors discharged all; but that a covenant not to sue one of several would not discharge the others; and so we have since repeatedly decided. McDonald v. Grocery Co., 184 Mo. App. 432, 171 S. W. 650; Pickett v. Wren, 187 Mo. App. 83, 174 S. W. 156; Hawkins v. Railroad, 182 Mo. App. 323, 170 S. W. 459; Laughlin v. Powder Co., 153 Mo. App. 508, 134 S. W. 116. And so it has been determined by the St. Louis Court of Appeals. Judd v. Walker, 158 Mo. App. 156, 138 S. W. 655; Lumber Co. v. Dallas, 165 Mo. App. 49, 146 S. W. 95.

The parties hereto concede this to be the law, but the proposition presented by plaintiff is that he has a right to show by parol testimony that the release paper does not contain the real contract between him and the Missouri Pacific; that the real agreement was one of covenant not to sue instead of release. He recognizes the rule that, in the absence of fraud, accident, or mistake, parol evidence is not admissible to vary the terms of a written contract, but claims that such rule only applies to the parties and privies to the contract and has no application to strangers, and insists that the defendant railway company is a stranger to that contract, and this last insistence is the chief point of difference between the parties. That a third party, or stranger, cannot invoke the rule is settled by authority and good reason. 1 Greenleaf on Evidence, § 279; McKee v. St. Louis, 17 Mo. 184, 190.

That the defendant street railway company is a stranger to the contract in this case, and, having had nothing to do with such contract, is not bound by it, and, if it should be to its interest to do so, could introduce parol evidence to show that the writing did not contain the contract, must be admitted. If the defendant may question it, then, also, may the plaintiff, though one of the parties to it, since it would be unjust to give the privilege to one of the litigants and deny it to the other. McMaster v. Ins. Co., 55 N. Y. 222, 234, 14 Am. Rep. 239; O'Shea v. Railroad, 105 Fed. 559, 44 C. C. A. 601; Nashville Interurban Ry. v. Gregory (Tenn.) 193 S. W. 1053, 1057; Dunn v. Price, 112 Cal. 46, 51, 44 Pac. 354; Johnson v. Von Scholley, 218 Mass. 454, 457, 458, 106 N. E. 17.

There are two cases decided by the Supreme Court of Massachusetts, and perhaps some others, that seem to be opposed to this view. Brown v. Cambridge, 3 Allen (Mass.) 474; Goss v. Ellison, 136 Mass. 503. But we think the view we have taken has the better support, and we gave expression to that view in the case of Dennison v. Aldrich, 114 Mo. App. 700, 708, 91 S. W. 1024. See, also, Laughlin v. Powder Co., 153 Mo. App. 508, 134 S. W. 116.

We now come to what we regard as a point equally serious to that above discussed as to the right to vary the terms of the contract. Of course unless the force of the release is avoided plaintiff must fail. The first introduction of such release appears as new matter in defendant's answer, and therefore the attempted avoidance thereof, and the grounds therefor must appear in plaintiff's reply, and we find from it that the ground of...