Och v. Missouri, K. & T. Ry. Co.

Decision Date02 July 1895
Citation31 S.W. 962,130 Mo. 27
CourtMissouri Supreme Court
PartiesOCH et al. v. MISSOURI, K. & T. RY. CO.

1. Plaintiff was injured on defendant's train by a ventilating window falling on her head, rendering her insensible. Shortly after the accident, defendant's agent offered her $20, and tendered a release in full. Plaintiff testified that she objected to signing the paper, because she saw something in it about a release for all damages; that the agent then, in her presence, made an erasure, giving her to understand that he was striking out the release clause, leaving the paper simply a receipt in full if she experienced no further trouble from her injuries; and that, relying on the agent's assurance, and being in a dazed mental condition, as a result of the accident, she signed the receipt, without attempting to read it again. The paper signed was an absolute release for all damages. Held that, until set aside in an equitable proceeding for fraud in its procurement, the release was a bar to an action for injuries caused by the accident. Brace, C. J., and Barclay, J., dissenting.

2. In such a case, where there was no evidence of want of sufficient mental capacity to execute a release, that question should not be left to the jury.

3. One injured on a train who releases the railroad company by an agreement expressly limited to the injuries then perceptible may recover for injuries subsequently appearing.

4. Where plaintiff, a passenger on a railroad train, is injured by the fall of a ventilating window of the coach in which she is riding, the burden is on defendant company to disprove negligence.

5. An instruction which permits one injured on a train, who accepted payment for injuries perceptible at the time, to recover for all injuries, including those settled for, is error.

6. One seeking to avoid a release for fraud must offer to return what he received for the release.

In banc. Appeal from St. Louis circuit court; John Harrison, Judge.

Action by Julia K. Och and William Och, her husband, against the Missouri, Kansas & Texas Railway Company, for damages for personal injuries to plaintiff Julia K. From a judgment for plaintiffs, defendant appeals. Reversed.

Jackson & Montgomery, for appellant. Lee & Ellis, for respondents.


This is an action for damages for personal injuries sustained by the plaintiff Julia while a passenger on one of defendant's trains, en route from Gainesville, Tex., to St. Louis, Mo. The plaintiff William Och is her husband. The suit was brought in the circuit court of the city of St. Louis. A trial before a jury resulted in a verdict and judgment for plaintiff in the sum of $7,521.45, from which defendant appealed.

The petition alleges that on the 7th day of October, 1891, plaintiff Julia was a passenger on defendant's cars from Gainesville, Tex., to the city of Sedalia, Mo.; and while at a station called Green Ridge, before reaching and near to Sedalia, defendant's porter in charge of the car on which she was a passenger "did negligently and carelessly pull out of its place a ventilating window in the roof of said car, which, through the negligence and carelessness of defendant, was insecurely affixed in its place, and was unsafe and defective in condition and construction, down onto the head and face of the plaintiff, cutting and bruising her head and face, and knocking her senseless; that she remained unconscious for considerable time; that the falling of said ventilator onto the plaintiff's head was without fault of the said plaintiff, and was caused by the negligence of the said porter in forcibly and carelessly jerking the ventilator out of its fastenings, and also by the insecure and dangerous manner in which the same was then fastened in the roof of said car, as well as by the defective character and condition of the same at the time it fell, which insecure and dangerous manner and defective character and condition the defendant at and before the said date knew, or, by the exercise of the care due towards its passengers, should and would have known." The petition further alleges that, at the time of the injury, the plaintiff Mrs. Och was pregnant, and that, from the nervous shock caused by the blow on her head, she suffered a miscarriage; that she was for many days confined to her bed, and was finally compelled to submit to a painful and dangerous surgical operation, in having one of her ovaries removed; that she is permanently disabled and crippled for life. The damages were laid at $25,000. Defendant, in its answer, "admits that it is a corporation and a common carrier of passengers, and that on the 7th day of October, 1891, plaintiff Julia was a passenger upon one of its trains, but denies all other allegations in plaintiffs' petition." The answer then, as a special defense, "alleges that after said accident occurred, and on the same day, plaintiff Julia claimed that she had been injured by a small ventilator falling upon her head, and that she had a demand against defendant on account of said injuries; that it fully compromised, adjusted, and settled said claim and demand, and, for a valuable consideration paid by defendant to said Julia, she did then and there fully release and discharge defendant from all claims, of whatever kind or character, that she might have on account of or arising from said alleged accident and injuries, and pleads said settlement and release in bar to plaintiffs' action." To defendant's answer plaintiffs made reply as follows: "Now come the plaintiffs in the above-entitled cause, and, for their reply to the new matter set up in defendant's amended answer herein, deny that on the 7th day of October, 1891, or at any other time, the plaintiff Julia K. Och compromised, adjusted, or settled the claim and demand set out in her petition herein, and deny that she released and discharged the defendant from any and all claims, of whatsoever kind and character, that might arise out of the injuries of the plaintiff complained of in her petition. And, further replying herein, the plaintiffs aver that the employés and agents of defendant, including its physicians, surgeons, hospital nurses, claim agents, and conductors, fraudulently conspired together to unfairly and unlawfully obtain from the plaintiff a written release of her cause of action in this suit; that, in pursuance of such plan and conspiracy, said agents, within an hour after she received the injuries complained of, and while she was in a feeble, bewildered, and partially unconscious condition, took plaintiff to a railroad hospital in Sedalia, where the railroad surgeons and physicians, at the instance of defendant, examined her injuries, and pronounced them trifling and of no importance, and assuring plaintiff that she was not seriously injured, and that she would suffer no inconvenience from her wounds; that thereupon the claim agent for the defendant company prepared a written receipt and release of her claim in the petition herein set out, and tried to induce plaintiff to sign it, on payment to her of twenty dollars; that said plaintiff told said agent that she would not sign any release of her claim in this suit; that thereupon defendant's agent stated to her that he would change said writing so it should not be a release of any damages resulting from said injury, and he then and there professed and pretended to so change the same, and to strike out therefrom the release aforesaid, but, as plaintiffs have been informed since the institution of this suit, and as they now aver, the said agent did not cancel or strike out or change said writing so as to exclude therefrom the release aforesaid, but at the time said agent assured plaintiff Julia K. Och that said change had been made; that, at the time said plaintiff was sick in mind and body, and was, from her mental condition, unable to carefully read and understand said writing, and, believing in and relying upon the representations so made by said agent, she did receive said money, and signed said receipt and release so fraudulently and wrongfully obtained from her; that said plaintiff only signed said receipt on the faith of said representations, and except for that would have persisted in her refusal to sign the same, but that, relying upon said representations, she was fraudulently induced to execute the same. Wherefore plaintiffs say that her signature to said writing was fraudulently and wrongfully obtained, and therefore not lawfully executed by her. Wherefore plaintiffs ask the court to declare said instrument null and void, and for judgment as in the petition asked."

After the jury was impaneled, and before any evidence was introduced, defendant's counsel objected to the trial of the case by a jury, on the ground that the pleadings present a question which should be tried by the court sitting as a court of equity, before the other branch of the case should be submitted to the jury. The objection was overruled, and defendant duly excepted.

The material facts, as disclosed by the evidence, were as follows: The plaintiff was 26 years old, had been married 8 years, and had a son 7 years old, but had never had any other children. On October 6, 1891, she left Gainesville, Tex., for St. Louis, by way of the Missouri, Kansas & Texas Railway to Sedalia, thence by the Missouri Pacific to St. Louis. She rode in a chair car, and on the morning of October 7th, when south of Green Ridge (a station about 12 miles from Sedalia), the colored porter commenced to open the ventilators, which are placed in the elevation between the lower and upper decks of the car. He passed along, opening them with a stick with a hook on the end of it, taking them in order; and, when he touched the one over plaintiff, it fell, and struck her on the head, breaking one of the small pieces of glass in it, and making an incision in her...

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