Nelson v. Kansas City Public Service Co.

• Decision Date: 16 June 1930
• Docket Number: 16930
• Parties: NELSON v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Kansas Court of Appeals

30 S.W.2d 1044

NELSON v. KANSAS CITY PUBLIC SERVICE CO.

No. 16930

Court of Appeals of Missouri, Kansas City

June 16, 1930

Certiorari Denied June 30, 1930.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

“ Not to be officially published.”

Action by Bettie Nelson against the Kansas City Public Service Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Charles L. Carr, Virgil Yates, and E. E. Ball, all of Kansas City, for appellant.

John C. Nipp, of Kansas City, for respondent.

OPINION

ARNOLD, J.

This is an action in damages for personal injuries. Defendant is a corporation, organized and existing under the law and engaged in operating a street car system in Kansas City, Mo., and more particularly upon, over, and along Vine and Lynn streets from Nineteenth to Thirty-First street in said city. Plaintiff is a Negro woman residing in Kansas City and engaged in doing washing and other odd jobs for a livelihood.

The petition alleges that on December 14, 1926, plaintiff was a passenger in one of the cars operated by defendant on its Vine street line, and while seated therein, said car gave an unusual, violent, and abrupt jerk, by reason of which plaintiff was thrown with great force and violence against the back of the seat in front of her and injured; that said injuries "were caused by the carelessness and negligence of said defendant, its agents, servants or employees, in that said car was caused or permitted to jerk in an unusual, abrupt, violent and unexpected manner." Plaintiff’s injuries are described as follows:

"Her left shoulder was dislocated, one rib broken, one hand bruised and injured, her collar bone was fractured, her right eye was injured and the right side of her face was partially paralyzed; she received internal injuries to her lungs and stomach from which she spit blood for two days, and was required to have a nurse for six weeks; she has been confined to her bed ever since receipt of said injuries except for short intervals; she has lost her position and has suffered great mental anguish and bodily pain; she received a great nervous shock to her entire system; that all of said injuries are permanent and will endure as long as she lives; she has incurred, and in the future will incur large sums for medicine and medical care, all to her damage in the sum of $1500.00."

The amended answer is a general denial and for affirmative defense alleges that on December 15, 1926, plaintiff executed a full and complete release to defendant for the alleged claim for injuries, and fully compromised and settled the said alleged claim and all her claims against the defendant, arising out of the occurrence alleged in her petition, and therein and thereby acknowledged and received full payment and satisfaction of all claims whatsoever. A copy of said release is filed with the answer and made a part thereof by reference; that upon the execution of said release and full acquittance of defendant "an additional and further release in the nature of a draft covering said consideration was accepted, endorsed and cashed by plaintiff." A copy of said draft is made a part of the answer by reference, and it is asserted that, by reason of the aforesaid releases and the full and final compromise and settlement, plaintiff is without right to maintain this action; and said release and settlement are pleaded as a bar to her alleged cause of action.

In her reply to the new matter set up in the amended answer, plaintiff denies that on December 15, 1926, or at any other time, she executed a full and complete release to defendant, and denies that she fully compromised and settled her alleged claim and all her claims against defendant arising out of the occurrences alleged in her petition; denies she therein and thereby acknowledged and received full payment therefor; and plaintiff denies that upon the execution of the alleged release, an additional and further release in the nature of a draft covering said consideration was accepted, indorsed, and cashed by her; denies that by reason of the execution of such release she is without right to recover in this action; denies that on the 15th day of December, 1926, or at any other time, plaintiff compromised, released, or discharged defendant for valuable consideration; and denies she released defendant from any claims of whatsoever kind or character arising out of the injuries alleged in her petition.

Further replying, it is alleged an employee and agent of defendant "fraudulently, unfairly and unlawfully did obtain from the plaintiff a written release of her cause of action in this suit; that at the time of the alleged procurement of said release plaintiff was sick, weak, ill, helpless, suffering and confined to her home, and her mental faculties were so greatly impaired that she did not know or understand what was transpiring about her or how to transact any business, and that plaintiff was inexperienced, ignorant, uneducated and illiterate, and knew nothing about transacting such business; that by reason of said injuries and plaintiff’s resultant condition therefrom her mentality was impaired and weakened and she was confused; that on the 15th day of December, 1926, her mental faculties were so impaired and confused that she was mentally unable to transact or perform any business or to intelligently understand what was being done or performed, all of which the defendant, its agent and servant, knew, but notwithstanding such knowledge of the plaintiff’s condition, physical and mental, while plaintiff was in the deepest distress, bodily pain and her mental faculties so impaired and confused by said injuries and the result thereof that she was unable to understand or comprehend the instrument, release or agreement set up in defendant’s amended answer herein or what was transpiring around her, the defendant, through its agent and servant, came to plaintiff’s house and, while she was helpless in the condition aforesaid, fraudulently, unfairly and unlawfully procured her signature to said document; that at the time the same was procured from plaintiff she did not, and on account of her physical and mental condition aforesaid could not, read or comprehend the same and did not know or comprehend that she had released or compromised her cause of action set out in her petition herein, or that she had signed said document until some time afterwards; that before said defendant, its agent and servant, procured said release it had been informed and knew that plaintiff was unable to transact any business *** knew plaintiff did not intend and would not settle said cause of action; *** that the defendant *** in order to take advantage of the plaintiff in her said condition, misrepresented her condition, told her she was not injured, that her injuries were very slight, and that $25.00 was far in excess of the damages she had received; that when the defendant *** called at plaintiff’s house to obtain a release from plaintiff a neighbor *** was present and requested that the servant and agent of defendant defer the transaction until said neighbor could go to obtain the assistance of another neighbor in the vicinity, but instead of so doing, after he had promised so to do, the said agent and servant of the defendant obtained said purported release from the plaintiff and *** caused to be delivered to plaintiff the alleged purported draft *** for $25.00, for which defendant claimed said release was procured."

The reply further pleads a tender of the said $25 to defendant, which tender was refused. Upon the pleadings thus made, the cause was tried to a jury, resulting in a verdict for plaintiff in the sum of $600, and judgment was entered accordingly. Timely motions for a new trial and in arrest were duly filed, and defendant appeals.

Four assignments of error are presented in which it is charged the court erred: (1) In refusing defendant’s instruction in the nature of a demurrer at the close of all the evidence; (2) in giving plaintiff’s instruction 6, as modified and changed by the court; (3) in giving plaintiff’s instruction 7, as modified and changed by the court; (4) in permitting plaintiff’s witness Dr. W. S. Thomas to answer as he did the hypothetical question put to him. In support of the first of these charges, it is urged no fraud or misrepresentation is shown by the evidence. This observation is directed to the charge of fraud contained in plaintiff’s reply to defendant’s answer, in the procurement of the purported release; and it is urged there is no theory upon which plaintiff should have been permitted to have her case presented to the jury. In considering this point, we must keep in mind the well-settled rule of law that courts of appeal may not weigh evidence, and if there is any substantial evidence to support the allegations of the petition the appellate court will hold the case should have been submitted to the jury. McCain v. Gas Co., 222 Mo.App. 1146, 15 S.W.2d 970; Charlsworth v. Jacob (Mo. App.) 24 S.W.2d 671. In passing upon the demurrer the court must accept as true all of plaintiff’s evidence; and all reasonable inferences to be drawn from defendant’s evidence must be resolved in plaintiff’s favor. Garner v. Woods (Mo. App.) 24 S.W.2d 708.

The reply alleges fraud and misrepresentation by defendant’s agent in obtaining the purported release. Plaintiff testified defendant’s agent came to her home on December 15, 1926, the day after the occurrence in question, while plaintiff was in bed and suffering from injuries received in said accident that the agent said to her: "I was sent out to see if you were in need; sign this paper and I will give you some money." Plaintiff further testified there was present a colored man named Walker,...