Meeker v. Chicago, Rock Island & Pacific Railway Company

• Decision Date: 05 November 1923
• Parties: AMANDA MEEKER, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant. *
• Court: Kansas Court of Appeals

255 S.W. 340

215 Mo.App. 492

AMANDA MEEKER, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant. *

Court of Appeals of Missouri, Kansas City

November 5, 1923

Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.

REVERSED AND REMANDED.

Case reversed and cause remanded.

Miles Elliott and Duvall & Boyd for respondent.

Luther Burns, John E. Du Mars and John E. Dolman for appellant.

OPINION

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 5000 and defendant has appealed.

Plaintiff was injured on June 28, 1922, while a passenger upon one of defendant's trains near the town of Alvo, Nebraska. The injury was caused by the derailment of the coach in which plaintiff was a passenger. She was taken to Lincoln Nebraska, on a relief train and shortly after her injury was induced by one of defendant's claim agents to sign a release for her injuries in consideration of the payment to her of the sum of $ 25.

Plaintiff testified that the claim agent approached her at the station in Lincoln and asked her if she was injured; that she told him that she was and he asked her to come into another room in the station, where she discovered what he wanted. She told him that she had only thirty-five cents with her and needed some money to get to her home in Phillipsburg, Kansas; that he asked her if twenty-five dollars would help her and that she replied it would; that he then took a statement from her concerning the accident and her injuries and asked her to sign a receipt for the twenty-five dollars, which she did in order to show that she had received the money he had given her as expense money. She testified that she did not read the papers that she signed; that her mental and physical condition was such that she would have been unable to have understood their meaning had she read them.

The petition consists of allegations of the negligence of defendant and the injuries received by plaintiff in the derailment, and then alleges that shortly after the wreck of the train and while plaintiff was in such mental and physical condition as to be unable to know or understand what she was doing--she signed some paper or papers which she is informed defendant will claim was and is a full release of her cause of action heretofore stated;" that she "did not have sufficient mental capacity to know or understand the nature or contents of said paper or papers;" "and was unable to know or judge of the precaution that should be taken by her against the defendant and its agent;" that the agent knew of plaintiff's mental incapacity and fraudulently procured plaintiff's signature "to said paper or papers" representing that "said paper was not a release or a settlement of any claim or cause of action that she might have against defendant, but that it was merely a statement of what injuries plaintiff received and was a receipt for the said twenty-five dollars" given her for expense money that plaintiff relied upon the statements and representations made by defendant's agent--

". . . as to the contents, nature and character of said paper or papers which she signed; that plaintiff has no knowledge or information as to the contents of said paper or papers which she signed, other than the statements made to her by defendant's agent as hereinbefore alleged.

"That if said paper or papers purport to be a release of plaintiff's cause of action, as she is informed defendant will claim same to be, and if the said paper is anything other than a statement of what injuries plaintiff received as a result of said wreck and a receipt for the payment of twenty-five dollars, the same was procured without the knowledge, consent or understanding of plaintiff, and is null and void."

Plaintiff further alleged that she pays into court the sum of twenty-five dollars and tendered same to the defendant. The petition was not verified. The evidence shows that at the time plaintiff paid the filing fee, the sum of twenty-five dollars was deposited with the clerk of the circuit court for the use and benefit of the defendant.

The answer is as follows:

"Comes now the above named defendant, and for its answer to plaintiff's petition in the above entitled cause, admits that on or about the 28th day of June, 1922, plaintiff became and was a passenger on defendant's train, and that when said train arrived at or near Alvo, Nebraska, the coach in which plaintiff was riding became derailed. Defendant further admits that said plaintiff claimed to be slightly injured as a result of said derailment and that by reason of said claim of plaintiff said defendant, at the solicitation of said plaintiff, agreed to and did pay said plaintiff the sum of twenty-five dollars ($ 25) in full settlement of her said claim and obtained from plaintiff her voluntary written release, by the terms of which defendant was released and discharged from all claims and demands for all damages resulting from any and all injuries received or claimed to have been received by plaintiff as a result of said derailment, a copy of which release is hereto attached, marked Exhibit "A", and made a part hereof.

"Further answering, said defendant denies all and singular the allegations in said plaintiff's petition contained."

The answer was verified, the affidavit stating "that the release hereto attached is a full, true and complete copy of the original release, signed and executed by plaintiff as hereinbefore stated." A copy of the release is filed with the answer. The reply consists of a general denial unverified. Thereafter defendant filed a motion for judgment upon the pleadings, which was overruled. The case went to trial before a jury.

We think the motion for judgment on the pleadings should have been sustained. Section 1415, Revised Statutes 1919, provides as follows:

"When any petition or other pleading shall be founded upon any instrument in writing, charged to have been executed by the other party and not alleged therein to be lost or destroyed, the execution of such instrument shall be adjudged confessed, unless the party charged to have executed the same deny the execution thereof, by answer or replication, verified by affidavit."

Defendant having pleaded the release and plaintiff having failed to deny the execution of the release under oath, the motion for judgment on the pleadings should have been sustained. [Leahy v. Mercantile Trust Co., 247 S.W. 396, 402.] There are some instances where a release is set up in the answer and fraud in the procure ment of the release is pleaded in the reply, it is not necessary for the reply to be verified. Nothing is set up in the reply in this case in the way of fraud in the procurement of the release, the reply merely consisting of a general denial. The reply need not be verified when it admits the execution of the release but attempts to avoid the same on the ground of fraud as an inducement to the procurement of the release. [Childeris v. Northern P. Ry. Co., 218 S.W. 441.] In that case the reply admitted the signing of the release but sought to avoid the same on the ground of fraud. In the case at bar there is no admission of the signing of the release, either in the petition or in the reply. Plaintiff, in answering defendant's point that she should have tendered the twenty-five dollars to the defendant prior to the institution of her suit if she sought to avoid the release on the ground of fraud, contends that fraud in the procurement of the release in the case at bar was inherent in the execution of the instrument and therefore there was no meeting of the minds of the parties and, hence, no contract. Consequently, plaintiff argues under the authority of Malkmus v. Cement Co., 150 Mo.App. 446, and Loveless v. Cunard Mining Co., 201 S.W. 357, she was not required to tender the twenty-five dollars before bringing her suit. This, for the reason that there was no...