Mueller v. Shell Pipe Line Corporation

• Decision Date: 05 May 1931
• Docket Number: No. 21498.,21498.
• Citation: 38 S.W.2d 297
• Parties: MUELLER v. SHELL PIPE LINE CORPORATION.
• Court: Missouri Court of Appeals

38 S.W.2d 297

MUELLER v. SHELL PIPE LINE CORPORATION.

No. 21498.

St. Louis Court of Appeals. Missouri.

May 5, 1931.

Rehearing Denied May 19, 1931.

Appeal from Circuit Court, Franklin County; Ransom A. Breuer, Judge.

"Not to be officially published."

Action by John Mueller against the Shell Pipe Line Corporation. From a judgment for plaintiff, defendant appeals.

Reversed.

Thompson, Mitchell, Thompson & Young, of St. Louis, for appellant.

Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for respondent.

HAID, P. J.

This is an appeal from a judgment in favor of plaintiff for damages occasioned by the overflowing of land upon which there was a growing crop of corn, which overflow was alleged to be due to the manner in which a pipe line of the defendant was laid.

The facts show that the defendant had a pipe line easement granted by the owners of the property who had rented the particular tract of land to the plaintiff upon shares.

The first amended petition of the plaintiff alleged that large ditches were maintained over and across said lands for the purpose of drainage that would carry the water into the Missouri river, and that on each side of said ditches there were constructed and maintained large levees for the purpose of preventing the water flowing through said ditches, from overflowing the banks thereof and the lands of plaintiff; that in constructing the pipe line the defendant excavated a trench in which the pipe was laid through said land and across said large ditches and levees, and that the defendant carelessly and negligently permitted the water draining into and flowing through said ditches and water that backed up through said ditches from the Missouri river to enter into and flow through said trench into and upon the land of plaintiff, thereby overflowing plaintiff's land and destroying the corn crop of plaintiff growing thereon, to the plaintiff's damage in the sum of $1,000.

The answer of the defendant was a general denial, coupled with an allegation of the execution and delivery by plaintiff to the defendant of a duly executed release whereby he discharged the defendant from the cause of action mentioned and prayed to be dismissed with its costs.

The plaintiff filed a reply admitting that he signed a paper at the time referred to in the answer, but denied that he had ever released, settled or compromised, or accepted anything in satisfaction of his said cause of action and denied all allegations of new matter in said answer contained. For further reply he alleged that if the instrument pleaded by the defendant purports to be a release of the cause of action set forth in the petition, then it was obtained by defendant without the knowledge or consent of the plaintiff, through fraud, deceit, and imposition, practiced on plaintiff because of his want of knowledge and understanding of the terms and true meaning of said instrument and his inability to see and read the contents thereof and because of the false and fraudulent representations made by defendant and by its agent and employee to the plaintiff to the effect that the consideration of $80, expressed in said instrument, was not to cover damages for the destruction of plaintiff's corn crop from overflow by water, and that said instrument was a receipt for the payment of damages for driving tractors, machinery, and teams over plaintiff's land and that it was not a receipt for corn damage, etc.

The first contention of the defendant is that the court erred in refusing to give and read to the jury the instruction in the nature of a demurrer to the evidence offered by defendant at the close of the whole case.

Defendant's contention is based upon the theory that the plaintiff wholly failed to sustain his allegations with reference to the execution of the release.

The instrument executed by the plaintiff was dated June 23, 1928, and recited the receipt from the defendant of $80 "in full of all damages for the laying of pipe line in the place and manner it has been laid, and also in full of all damages sustained to date including alleged damage by water overflowing from creek at pipe line crossing," etc.

The testimony for plaintiff concerning the execution of the release, so far as the same is necessary to a consideration of the error assigned, is as follows: That a Mr. Noxon, an agent for the defendant, called upon him.

"Q. Well, what did he tell you? A. He says he come out there to pay the damages, and I says, `What damages?' Or he says—I says, `That river,' I says, `you can't settle that because the water is on so deep; you don't know how much higher it is coming, and you will have to wait.' `Why,' he says, `no; you have got other damages; I have come out to settle them.' I says, `Yes'; I says, `I have got driving and ruts there.' He says, `Tramp damages?' So we left it at tramp damages.

"Q. You called it tramp damages? A. Yes; we called it tramp damages.

"Q. Now, what did you mean by `tramp damages'; what did you understand by that? A. Well, driving and hauling over it; dragging these pipes in.

"Q. Over your land, as you have described in your testimony hereof? A. Yes, sir.

"Q. In February or March, 1928. Well, go on now and tell me what more, if anything, he said to you about that settlement. A. About this here settlement?

"Q. Yes. A. He asked me how much I wanted for it. I told him one hundred dollars. He says, `You are too high.' I says, `No'; I wasn't. So he had settled with somebody, a neighbor, Bert Horn, for—

"Q. I will ask you: Where was Bert Horn at that time? A. He was right there with me.

"Q. Yes; you and Bert Horn were there together? A. Yes, sir. * * *

"Q. Were you all there together on this occasion when Noxon came there? A. Yes, sir.

"Q. All right; now, then, go on and say what more was said and done between you and Mr. Noxon in regard to your tramp damages. A. Why, he wanted to know what I wanted for it.

"Q. Yes; you told me that. A. I told him eighty dollars, or a hundred dollars, and he says that was too high, and I told him it was not, and we kept tinkering, I guess for a half hour or more before I ever gave in to eighty dollars, but I thought that that was what I signed, a receipt of some kind, that I don't know what. I asked him, I says, `Well, what is that for?' He says, `That is merely to prove where I spent the money for,' and being that we didn't talk nothing else but tramp damages, I thought that was all there was to it, and signed that.

"Q. Well, did you read the paper, or did he read it to you? A. No, sir; I didn't, because I didn't have no glasses. Well, I told him then, I says, `I ain't got my windows with me.'

"Q. What do you mean by windows? A. My glasses, spectacles.

"Q. Well, did he read it to you? A. No, sir; he didn't.

"Q. Why didn't you read it? A. Well, I couldn't see it.

"Q. All right. All right, then what did you think you were signing there? A. I thought it was for these tramp damages he said.

"Q. Signing what? A. That receipt.

"Q. Receipt for tramp damages, as you have described them? A. Yes, sir. * * *

"Mr. Noxon said he was coming back and settle that water question; him or somebody else would. He said he was coming back whenever the water was down—just as quick as the water was down. A year later Mr. Noxon come, and another fellow, and I saw him here, too, a little while ago. * * *

"Q. Now, then, when they came back a year later what did they say to you about your claim for crop damages in 1928? A. Mr. Noxon says, `Didn't that water come over the railroad track?' and I says, `Yes,' I says, `some of it did, but,' I says, `there was a ditch big enough to carry it out.' And they went down to look at it, but it started to rain; I don't know whether they really got a good look at it or not, but they went over there, both of them; I am positive that is the other fellow that was with Mr. Noxon. They didn't do any business with me and were coming back next week. They didn't come back, and I waited until another year was up; that was in 1930, and then I went to the office of the Shell Pipe Corporation in St. Louis, where I asked a girl upstairs in the hall for Mr. Noxon, and she said he wasn't in. I asked her to give me any one of the claim agents, and she took me in to see a man—a short, fat fellow—but I didn't see Mr. Noxon around.

"Q. What did he say he was? A. Well, he raised Cain about it; he says, `Why, ain't that thing settled out there?' He says, `Well, I thought these claims were all settled.' `Well,' I says, `mine ain't.' So he called the girl to bring him some papers and he looked over it and he says, `Why, you received one payment' he says. `Yes,' I says, `for tramp damages.' He looked at that receipt and he says, `Yes, I see.' He says, `I want that settled, I will have Mr. Noxon to come out tomorrow and settle that.' He says, `I want that settled.' He says, `No, now it is Saturday tomorow; I won't promise you that he will be out there tomorrow, but he will be out there Monday or the first days' and he didn't show up. That he then went to see his attorney and that Mr. Noxon was present.

"Q. But I want to know, without going into any negotiations, what did you learn about a receipt or a release from Mr. Noxon on that occasion? A. There is where he showed the receipt.

"Q. For what? A. That I had nothing coming to me."

On cross-examination plaintiff testified that he was able to read with glasses and to write and that he signs checks; that he did not ask Mr. Noxon to read the release to him; that plaintiff's house was about one or two hundred feet from where the negotiations were had. He did not suggest going to the house to get his glasses because Noxon "said it was merely to prove where he spent the money for, and being we had only talked...