Poe v. Illinois Cent. R. Co.

Decision Date17 November 1936
Citation99 S.W.2d 82,339 Mo. 1025
PartiesHarold Poe v. Illinois Central Railroad Company, a Corporation, Appellant
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. J. W McAfee, Judge.

Reversed.

Watts & Gentry for appellant;

E C. Craig and Charles A. Helsell of counsel.

Even if plaintiff ever had any cause of action (which we deny), he is precluded from recovery by the release which he signed on February 1, 1930. Dryssen v. Union E. L. & P. Co., 295 S.W. 116; State ex rel. U. P. Railroad Co. v Bland, 23 S.W.2d 1029; Conklin v. Mo. Pac. Ry. Co., 55 S.W.2d 308; Yerxa, Andrews & Thurston v. Viviano, 44 S.W.2d 98; Brennecke v. Ganahl Lbr. Co., 44 S.W.2d 627; Allgood v. Tarkio E. & W. Co., 6 S.W.2d 51; Higgins v. Am. Car Co., 22 S.W.2d 1043; Ry. Co. v. Belliwith, 83 F. 437; Book v. Anderson, 179 Mo.App. 631, 162 S.W. 641; Hall v. Ry. Co., 209 S.W. 582; Thompson v. Ry. Co., 27 S.W.2d 58; Woosley v. Wells, 281 S.W. 695; Mateer v. Ry. Co., 105 Mo. 320, 16 S.W. 839; Bank v. Hall, 129 Mo.App. 286, 108 S.W. 633; Whitney v. Johnson, 14 F.2d 24; Alford v. Wab. Ry. Co., 73 S.W. 227. Plaintiff had no right to rely on Purkhiser's alleged statement as to the amount of wages due him under the Compensation Act of the State of Illinois, and misrepresentation as to that legal question, if there was any, cannot justify setting aside the release. Allgood v. Tarkio E. & W. Co., 6 S.W.2d 55; Dalrymple v. Craig, 149 Mo. 345; Easton-Taylor Trust Co. v. Loker, 205 S.W. 87; Thompson v. Ry. Co., 27 S.W.2d 58. The cases as to the quality and quantum of evidence required to establish an issue under the act on which plaintiff bases his right of recovery, apply with equal force to the nature and amount of evidence necessary to break the release in question. Measured by the Federal rule, plaintiff's evidence, which he offered for the purpose of showing that he could not read, and that he was imposed upon by the claim agent, is far from being substantial evidence, and should be held to be entirely inadequate under that rule, even if the court should find that the facts which plaintiff attempted to prove would, if properly proved, justify breaking the release. We earnestly insist that, even if all that plaintiff said were admitted to be true, the release would still be binding; but plaintiff certainly could not properly break the release on the strength of the wholly unsubstantial evidence which he offered. Besides, the evidence of defendant on this branch of the case is so overwhelmingly in its favor as to leave no doubt that the facts are as claimed by defendant. Hence, the demurrer to the evidence should have been sustained. C. & O. Ry. Co. v. Chamberlain, 50 S.Ct. 395; Pleasants v. Fant, 22 Wall. 121; Gunning v. Cooley, 50 S.Ct. 231; Del. L. & W. Railroad Co. v. Converse, 139 U.S. 469; Small Co. v. Lamborn, 45 S.Ct. 300. On the issue concerning the release the latest decision of the court en banc is binding upon each division of this court. State ex rel. v. Dawes, 6 S.W.2d 296. But this court did not follow the latest decision of the court en banc in its opinion on the first appeal of this case. That case is Conklin v. Mo. Pac. Ry. Co., 55 S.W.2d 306, and it is clearly in appellant's favor and should be determinative of this case. Under the authority of that Conklin case an outright reversal herein is inescapable.

Louis E. Miller and Charles A. Lich for respondent;

William C. McLaughlin of counsel.

(1) Since the pleadings have not been amended and the evidence on the retrial is substantially the same as on the first trial, the opinion on the former appeal properly applied and declared the law, and is the law of the present case. Poe v. Ill. Cent. Railroad Co., 73 S.W.2d 779; State of Kansas ex rel. Winkle Terra Cotta Co. v. U.S. Fid. & Guar. Co., 40 S.W.2d 1052; Bradley v. Becker, 11 S.W.2d 10; Mangold v. Bacon, 237 Mo. 496; Coleman v. N.W. Mut. Life Ins. Co., 233 S.W. 188; Scott v. Realty & Imp. Co., 255 Mo. 102. (2) There was substantial evidence to the effect that the release which plaintiff signed was fraudulently procured by means of concealment and misrepresentation justifying the submission of this issue to the jury. Rau v. Robertson, 260 S.W. 75; Ensler v. Mo. Pac. Ry. Co., 23 S.W.2d 1034; State ex rel. Brown v. Trimble, 23 S.W.2d 101; State ex rel. Union Pac. Railroad Co. v. Bland, 23 S.W.2d 1029; Laird v. Keithley, 201 S.W. 1138. (a) There was substantial evidence to the effect that the presence of the pile of gravel over which plaintiff fell was known to the defendant or by the exercise of ordinary care on its part could have been known to it. Penn. Railroad Co. v. Chamberlain, 288 U.S. 333; Gunning v. Cooley, 281 U.S. 90; Crookston Lbr. Co. v. Boutin, 149 F. 680; Bergert v. Payne, 274 F. 784; Hardy Mining Co. v. Baker, 10 F.2d 279.

Bohling, C. Cooley, C., dubitante; Westhues, C., concurs.

OPINION
BOHLING

Action under the Federal Employers' Liability Act. On the former appeal [Poe v. Illinois Central Railroad Co., 335 Mo. 507, 73 S.W.2d 779], judgment for plaintiff was reversed and the cause remanded because the evidence was insufficient to establish negligence on the part of defendant. Upon retrial, plaintiff prevailed; but the court nisi granted a new trial on the ground the verdict was against the weight of the evidence. A third trial resulted in a verdict for plaintiff in the sum of $ 20,000; and upon plaintiff entering a forced remittitur of $ 10,000, judgment was rendered for $ 10,000. Defendant appeals.

Before reaching the merits of plaintiff's cause of action, we are confronted with defendant's plea in bar.

Plaintiff was injured on December 18, 1928. On February 1, 1930, plaintiff was paid $ 850 and executed a release to defendant, which defendant pleaded in bar to plaintiff's action. Plaintiff's reply charged said release had been obtained through fraud practiced upon plaintiff by defendant's claim agent Mr. Purkhiser. If the release is valid, plaintiff's cause of action must fail. Defendant contends the evidence adduced did not make a submissible case of actionable fraud on the part of defendant in the procurement of the release in that (1) the misrepresentations attributed by plaintiff to defendant's agent, standing alone, are insufficient in law to constitute a fraud upon plaintiff and (2) plaintiff's testimony that he could not read, upon which he relies to justify his failure to inform himself of the contents of the writing, stands so thoroughly impeached in the record as to be of no probative value and constitutes no substantial evidence of the fact.

As a preliminary controversy to a reconsideration of said issue as well as others, on this appeal, plaintiff takes the position that since the pleadings present no new issues and the evidence on retrial is substantially the same, the rulings of this court on the former appeal are the law of the case. [State of Kansas ex rel. v. United States F. & G. Co., 328 Mo. 295, 299, 40 S.W.2d 1050, 1052(1); Coleman v. Northwestern Mut. L. Ins. Co. (Mo.), 233 S.W. 187, 188(1); Scott v. Parkview R. & I. Co., 255 Mo. 76, 102(1), 164 S.W. 532, 540(1).] Plaintiff's statement as far as it goes is correct, but, quoting Davidson v. St. Louis-S. F. Ry. Co., 301 Mo. 79, 85, 256 S.W. 169, 170: "It should be further stated, however, that even if there is no substantial difference in pleadings and proof upon the retrial yet if this court upon second appeal finds that it was in error upon the first hearing, it not only has the power and right to correct such error, but it would be the duty of the court so to do, in the interest of justice. This is true whether we erred in the principles of law declared, or erred in the determination of what were the real facts of the case." Mangold v. Bacon, 237 Mo. 496, 512(a), 525, 141 S.W. 650, 653(4, 5), 658, was a banc case having under consideration a banc opinion upon former appeal. It contains a review of the authorities; states the general rule, grounded on convenience, experience and reason, that legal conclusions announced on a first appeal become and remain law of the case, is subject to exceptions as well recognized as the rule itself, and sums up the matter thus (237 Mo. l. c. 517): "Whether from grace or right when cogent and convincing reasons appear, such as lack of harmony with other decisions and where no injustice or hardship would flow from a change, or where by inadvertence principles of law have been incorrectly declared the first time, or mistake of fact has been made, or injustice to the rights of parties would be done by adhering to the first opinion, then the exceptions to the rule have play and it is our duty to re-examine and correct our own errors on the second appeal in the same case." [See also: Davidson v. St. Louis-S. F. Ry. Co., 301 Mo. 79, 85(I), 256 S.W. 169, 170(2); Hogan v. Kansas City, 322 Mo. 1103, 1111(I, a), 19 S.W.2d 707, 711(2); Crossno v. Terminal Railroad Assn., 333 Mo. 733, 739, 62 S.W.2d 1092, 1094(4); State ex rel. v. Sturgis, 281 Mo. 598, 606(4), 221 S.W. 91, 94(6); Murphy v. Barron, 286 Mo. 390, 400(1), 228 S.W. 492, 494(1).] The instant record discloses some additional evidence. Of greater import, the ruling on former appeal relies on divisional opinions (now relied on by plaintiff and hereinafter discussed) in holding plaintiff made a submissible case on the tendered issue of fraud; whereas, defendant now strenously presses upon our attention an opinion of the court en banc [Conklin v. Missouri Pac. Railroad Co., infra] subsequent to said divisional opinions, which was omitted from defendant's original brief on the former appeal. Being the latest decision of this court en banc, it is the controlling decision on the issues there authoritatively determined in announcing...

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