Och v. The Missouri, Kansas & Texas Railway Company

Decision Date02 July 1895
Citation31 S.W. 962,130 Mo. 27
PartiesOch et al. v. The Missouri, Kansas & Texas Railway Company, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. John A. Harrison Judge.

Reversed and remanded.

Jackson & Montgomery for appellant.

(1) The release pleaded in the answer was a bar to the cause of action stated in the petition until rescinded in some legal method, and it was error to try the issue of fraud, as raised in the reply, jointly with the other issues in the case before a jury. The issue of the fraud or good faith of the release should have been tried separately as a proceeding in equity. Anson on Contracts, p. 163; Lawson on Contracts, sec 248; Bishop on Contracts, sec. 611; Jarrett v. Morton, 44 Mo. 275; Estes v. Reynolds, 75 Mo. 565; Hart v. Handlin, 43 Mo. 171; Melton v. Smith, 65 Mo. 315; Cohn v. Reid, 18 Mo.App. 115; Schultz v. Christman, 6 Mo.App. 338; Taylor v. Short, 107 Mo. 384; Pearsal v. Chapin, 44 Pa. St. 9; Kinne v. Webb, 49 F. 512; Railroad v. Hayes, 10 S.E. 350; Home Ins. Co. Howard, 111 Ind. 544; Cobb v. Hatfield, 46 N.Y. 533; Graham v. Meyer, 99 N.Y. 611; Kimball v. Cunningham, 4 Mass. 502; Thayer v. Turner, 8 Metc. 550; Moriarty v. Stofferan, 89 Ill. 528; Doane v. Lockwood, 115 Ill. 490; Pierce v. Wood, 3 Foster (N. H.) 519; Tisdale v. Buckmore, 33 Me. 461; Kreuzner v. Street R'y Co., 13 N.Y.S. 588; McMichael v. Kilmer, 76 N.Y. 36; Grymes v. Sanders, 93 U.S. 62; McLean v. Clapp, 141 U.S. 429. The plaintiff could not retain the benefits of the settlement and at the same time assail its good faith. Cases cited above. (2) Even if it had been proper to try the issue of the fraudulent character of the release in that manner, the court erred in allowing the case to go to the jury, because the evidence did not sustain the allegations of the reply, and did not make out a case of fraud on any theory. Mateer v. Railroad, 105 Mo. 320. (3) The plaintiff's instructions generally, and especially the sixth one, were erroneous, because they authorized a splitting of plaintiff's cause of action into separate parts. Nemo debet bis vexari pro una et eadem causa. Mateer v. Railroad, supra; Funk v. Funk, 35 Mo.App. 246; Moran v. Plankinton, 64 Mo. 337; Green v. Von der Ahe, 36 Mo.App. 394; Union R. R. & T. Co. v. Traube, 59 Mo. 355. (4) The liability of the defendant depended upon its negligence in observing the degree of care resting upon it, with regard to the matters complained of. That degree of care must be commensurate with the nature and use of the ventilator, and the possibility of dangerous consequences from its use. 2 Wood's R'y Law, secs. 301 and 302 and notes; Sawyer v. Railroad, 37 Mo. 240; Dougherty v. Railroad, 97 Mo. 447; Smith v. Railroad, 108 Mo. 243; Hegeman v. Railroad, 13 N.Y. 9. (5) The defendant discharged its duty as to the degree of care required of it in relation to the character and condition of the ventilator, when it made the various inspections mentioned in the evidence. 2 Wood's R'y Law, sec. 300; McPadden v. Railroad, 44 N.Y. 478; Robinson v. Railroad, 9 F. 877; Hegeman v. Railroad, 13 N.Y. 9. (6) Defendant was not liable for an accident resulting from the act of a third person, of which its agents did not know and did not have time to know prior to the accident. Therefore defendant's fifth instruction should have been given. There was no negligence where there was no reason to anticipate injury. Deyo v. Railroad, 34 N.Y. 9; Frink v. Potter, 17 Ill. 406; Farnish v. Reigle, 11 Gratt. 697; Stockton v. Fray, 4 Gill, 406; McClenahan v. Brock, 5 Rich, 17; Hutchinson on Carriers, sec. 521; Ray's Neg. of Imp. Duties, sec. 15, pp. 135-141; Putnam v. Railroad, 55 N.Y. 108; Railroad v. Hinds, 53 Pa. St. 512. (7) Plaintiff's second instruction was erroneous, because it raised the same presumption in favor of plaintiff and cast the same burden of proof on defendant in regard to the conduct of the porter that it did in regard to the condition of the car. There was no proof of any negligence by the porter. Hawkins v. Cable R'y Co., 28 P. 1021; Railroad v. Gibson, 96 Pa. St. 83; Fearn v. Ferry Co., 22 A. 708; Hayman v. Railroad, 11 A. 815; Herstine v. Railroad, 25 A. 104; Sawyer v. Railroad, 37 Mo. 240; Curtis v. Railroad, 18 N.Y. 534. (8) Plaintiff's sixth instruction was erroneous.

Lee & Ellis and J. H. Zumbalen for respondents.

(1) If rescission was necessary, the release could be rescinded in an action at law, and the issue made by the answer and reply was triable by jury. Girard v. St. Louis Car Wheel Co. (Mo.), 27 S.W. 648. First. This was the rule at common law. 3 Black Comm. *p. 431; Thoroughgood's case, 2 Coke's Reports, *9; Bright v. Eynon, 1 Burrows, 390; Alner v. George, 1 Campbell, 392; Wild v. Williams, 6 Mees. & W. 490; Phillips v. Claggett, 11 Mees. & W. 84; 1 Chitty's Pleading [7 Ed.], *613; Hoitt v. Holcomb, 23 N.H. 535; Larrabee v. Sewell, 66 Me. 376; O'Donnell v. Clinton, 145 Mass. 461; Railway Co. v. Welch, 52 Ill. 187; Eastman v. Wright, 6 Pick. 316; Railway Co. v. Lewis, 109 Ill. 120; O'Neil v. Iron Co., 63 Mich. 690; Snyder v. Findley, 1 N. J. L. 48; 2 Pomeroy's Eq. Jur. [2 Ed.], sec. 872. Second. The rule is the same under the reformed procedure and pleading. Bliss, Code Pl. [2 Ed.], sec. 201; Bussian v. Railroad, 56 Wis. 325; Schultz v. Railway Co., 44 Wis. 638; Lusted v. Railway Co., 71 Wis. 391; Dambman v. Schulting, 4 Hun (N. Y.), 50; Smith v. Salomon, 7 Daly (N. Y.), 216; Dixon v. Railway Co., 100 N.Y. 170; Peterson v. Railroad, 36 Minn. 399; S. C., 38 Minn. 511; Railway Co. v. Doyle, 18 Kan. 58; Pipe & Steel Co. v. Copple (Ky.), 22 S.W. 323; Railway Co. v. Brazzill, 78 Tex. 314. Third. Had the rule been otherwise at common law, the code of civil procedure would have changed the common law rule. R. S. 1889, secs. 2050, 2052, 2054; Kitchen v. Railroad, 59 Mo. 514; Earl v. Hart, 89 Mo. 263; Wolff v. Schaeffer, 74 Mo. 154; Carter v. Prior, 78 Mo. 222; Bean v. Railroad, 107 N.C. 731; Canfield v. Tobias, 21 Cal. 349; Bliss, Code Pleading [2 Ed.], sec. 200. Fourth. The Missouri decisions fully sustain the rule as above stated. Wright v. McPike, 70 Mo. 175; Mateer v. Railroad, 105 Mo. 320; Williams v. Railroad, 112 Mo. 463. Fifth. If a separate trial of the issues made by the answer and reply was necessary, the defendant waived his right to insist upon such separate trial. Estes v. Fry, 94 Mo. 266. (2) There was no occasion for rescission, because the alleged release was absolutely void and not merely voidable. Bishop on Contracts [Enlarged Ed.], secs. 611, 614; Railway Co. v. Lewis, 109 Ill. 120; Bispham's Equity [5 Ed.], sec. 202; Bishop on Contracts, 645, 646; Aultman & Co. v. Olsen, 34 Minn. 450; Mullen v. Railroad, 127 Mass. 86; Foster v. Mackinnon, L. R. 4 C. P. 704; Friedly v. French, 154 Mass. 339; Sobieski v. Railroad, 41 Minn. 169; Smith v. Steamship Co. (Cal.), 34 P. 84; Butler v. Railroad, 88 Ga. 598; Briggs v. Ewart, 51 Mo. 245; Corby v. Weddle, 57 Mo. 452; Cole v. Wiedmair, 19 Mo.App. 7; Wright v. McPike, 70 Mo. 175; Tracy v. Iron Works, 104 Mo. 193. (3) It was not necessary for the plaintiff to return or tender the money received on the alleged settlement, before bringing this suit. This question is not before the court for review. Girard v. Car Wheel Co. (Mo.), 27 S.W. 648; Railroad v. Acuff (Tenn.), 20 S.W. 348. First. Tender is unnecessary where contract is voidable for subsequently discovered fraud. Duval v. Mowry, 6 R. I. 479; Hendrickson v. Hendrickson, 51 Iowa 68; Smith v. Holyoke, 112 Mass. 517; Railroad v. Doyle, 18 Kan. 58; Railroad v. Brazzill, 78 Tex. 314; Railroad v. Lewis, 109 Ill. 120; O'Brien v. Railroad (Iowa), 57 N.W. 425; Schultz v. Railroad, 44 Wis. 638; O'Neil v. Iron Co., 63 Mich. 690; Bean v. Railroad, 107 N.C. 731. Second. Still less so, where, as here, the release is absolutely void. Mullen v. Railroad, 127 Mass. 86; Sobieski v. Railroad, 41 Minn. 169; Aultman & Co. v. Olsen, 34 Minn. 450; Butler v. Railroad, 88 Ga. 598; Vautrain v. Railroad, 8 Mo.App. 541; S. C., 78 Mo. 44; Bliss v. Railroad, 160 Mass. 447; Pierce v. Wood, 23 N.H. 534. (4) The rule that a party will not be permitted to split a single cause of action, does not apply. First. Because plaintiff has not recovered a prior judgment on this same cause of action. Bliss v. Railroad, 160 Mass. 447. Second. Because the plaintiff was ignorant, at the time of the alleged settlement, of the extent of her injuries. Moran v. Plankinton, 64 Mo. 337; Risley v. Squire, 53 Barb. 280; Bennett v. Hood, 1 Allen, 47; Mateer v. Railroad, 105 Mo. 351. (5) First. If plaintiff's instruction as to the measure of damages was erroneous under the evidence, defendant can not complain because its instruction given contained the same fault. Stevens v. Crane, 116 Mo. 408; Hazel v. Bank, 95 Mo. 66. Second. But said instruction was not erroneous, because the evidence failed to disclose that a partial settlement had been made by the plaintiff.

Burgess, J. Gantt, Macfarlane and Robinson, JJ., concur. Sherwood, J., concurs in reversing, but thinks plaintiff has no cause of action on the evidence. Brace, C. J. and Barclay, J., express their views in a separate opinion. Barclay, J., dissenting. Chief Justice Brace joins in the opinion of Barclay.


In Banc.

Burgess J.

This is an action for damages for personal injuries sustained by the plaintiff Julia Och, while a passenger on one of defendant's trains en route from Gainesville, Texas, to St. Louis, Missouri. 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 seventh day of October 1891, plaintiff Julia was...

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