McKim v. Metropolitan Street Ry. Co.
| Decision Date | 11 June 1917 |
| Citation | 196 S.W. 433,196 Mo.App. 544 |
| Parties | JAMES McKIM, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court--Hon. Daniel E. Bird, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Cowherd Ingraham & Durham for appellant.
Clyde Taylor and Charles A. Stratton for respondent.
Plaintiff was a conductor in 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 six hundred dollars he released the Missouri Pacific Company by duly executed written paper. He then brought the present action against the defendant, the street railway company and the latter in 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 discharge 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; 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, sec. 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; O'Shea v. Railroad, 105 F. 559; Nashville Interurban Ry. v. Gregory, 193 S.W. 1053, 1057 (Tenn.); Dunn v. Price, 112 Cal. 46, 51, 44 P. 354; Johnson v. Von Scholley, 218 Mass. 454, 457, 106 N.E. 17; 458.]
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 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. [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 avoidance is that it was executed by mistake. There is no allegation of fraud. It is true that in the first part of the reply it is alleged that Larrimore (who was acting for the Missouri Pacific Co.) "wrongfully" procured plaintiff to sign the release, yet that refers merely to the effect of what Larrimore did, for the entire pleading affirmatively and repeatedly alleges that Larrimore was acting in good faith and that he believed and plaintiff believed that the contract was a covenant...
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