Powers v. Kansas City Pub. Serv. Co.

• Decision Date: 20 December 1933
• Docket Number: No. 31258.,31258.
• Citation: 66 S.W.2d 840
• Parties: MABLE POWERS v. KANSAS CITY PUBLIC SERVICE COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

66 S.W.2d 840

MABLE POWERS v. KANSAS CITY PUBLIC SERVICE COMPANY, Plaintiff in Error.

No. 31258.

Supreme Court of Missouri.

Division Two, December 20, 1933.

Writ of error to the Jackson Circuit Court. — Hon. Ben Terte, Judge.

REVERSED.

Hogsett, Smith, Murray & Trippe for plaintiff in error.

(1) This suit in equity is triable de novo in this court, and this court will not be bound by the findings of the trial court on questions of fact, but will review and weigh the evidence. Krug v. Bremer, 316 Mo. 898; State ex rel. Bradley v. Trimble, 289 S.W. 923; Price v. Morrison, 236 S.W. 302; Newcomb v. Payne, 250 S.W. 560; Thomas v. Ry. Co., 49 Mo. App. 114; Lewis v. Barnes, 272 Mo. 377; Bankers' Mortgage Co. v. Osborn, 224 Mo. App. 870. (2) The plaintiff failed to prove the alleged fraud, and neither alleged nor proved mental incapacity to contract; and therefore the circuit court erred in finding the issues and rendering judgment in favor of plaintiff. The burden is on one alleging fraud to prove it by clear and convincing evidence. Walsh v. Walsh, 285 Mo. 205; Woosley v. Wells, 281 S.W. 700; McFadin v. Simms, 309 Mo. 331. (a) The charge of fraud is not sustained by the evidence. Allgood v. Tarkio Electric & Water Co., 6 S.W. (2d) 55; Higgins v. Car Co., 22 S.W. (2d) 1044; Thompson v. Ry. Co., 224 Mo. App. 421; Gilmore v. Ozark Mutual Assn., 21 S.W. (2d) 634; Security Savings Bank v. Kellems, 9 S.W. (2d) 968; Dalrymple v. Craig, 149 Mo. 354; Easton-Taylor Trust Co. v. Loker, 205 S.W. 87; Champion Funding Co. v. Heskett, 125 Mo. App. 516; Ordway v. Continental Ins. Co., 35. Mo. App. 426; 26 C.J. 1207; 12 R.C.L. 295; Stufflebean v. Peaveler, 274 S.W. 929; Birch Tree State Bank v. Dowler, 167 Mo. App. 378; Anderson v. Drug Co., 149 Mo. App. 575; Booth v. Dougan, 217 S.W. 326; Newcomb v. Payne, 250 S.W. 553; Thomas v. Ry. Co., 49 Mo. App. 115; Brennecke v. Ganahl Lumber Co., 44 S.W. (2d) 627; Mueller v. Shell Pipe Line Corp., 38 S.W. (2d) 297; Davis v. Howell, 52 S.W. (2d) 423; Conklin v. Railroad Co., 55 S.W. (2d) 306; Mateer v. Ry. Co., 105 Mo. 350. (b) Plaintiff neither alleged nor proved mental incapacity to contract. 32 C.J. 727; Cutler v. Zollinger, 117 Mo. 101; State ex rel. v. Grand Lodge, 78 Mo. App. 546; Wilson v. Jackson, 167 Mo. 155, 34 Cyc. 1055; Allgood v. Tarkio Electric & Water Co., 6 S.W. (2d) 54; Och v. Railroad Co., 130 Mo. 52; Davis v. Howell, 52 S.W. (2d) 423. (3) The plaintiff failed to allege or prove that she was entitled to recover against defendant for the death of her husband; and therefore the circuit court erred in its judgment granting the equitable relief prayed. Sauer v. City of Kansas, 69 Mo. 47; Greenard v. Isaacson, 220 S.W. 695; Steyermark v. Landau, 121 Mo. App. 405, 34 C.J., pp. 329-332, 333, 442; Hess v. Fox, 140 Mo. App. 441; Curtiss v. Bell, 131 Mo. App. 252. (a) Plaintiff did not allege any facts showing she was entitled to recover damages from defendant. Gibson v. Railroad, 225 Mo. 483; Mallinckrodt Chem. Works v. Nemnich, 169 Mo. 397; Sabol v. Cooperage Co., 313 Mo. 542; Schide v. Gottschick, 43 S.W. (2d) 779; Mitchell v. Operating Co., 225 Mo. App. 185; Manker v. Faulhaber, 94 Mo. 437. (b) The evidence fails to prove that plaintiff ever had any cause of action for damages against defendant. The circuit court ignored the defense of nonliability and refused to pass on it, thereby violating the principle that a court of equity once having taken jurisdiction will determine all matters in issue. Waddle v. Frazier, 245 Mo. 403; Schwartzman v. Fire Ins. Co., 318 Mo. 1096. If the evidence showed plaintiff had no cause of action for damages, that was the end of the equity suit; because a court of equity will never do a useless thing. Hess v. Fox, 140 Mo. App. 441; 34 C.J. 333; 21 C.J. pp. 107, 159. Powers' contributory negligence would bar recovery on every ground except the humanitarian doctrine. Hunt v. Railroad Co., 262 Mo. 277; Trigg v. Transit Co., 215 Mo. 521. There was no duty on the part of defendant to anticipate or be on the lookout for a person at the place where Powers was sitting on the track in the dark. Trigg v. Transit Co., 215 Mo. 542; Hamilton v. Kansas City So. Ry. Co., 250 Mo. 721; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 753; Wells v. Lusk, 188 Mo. App. 70. Since the operator of the street car was looking and did not see Powers until too late to stop the car, plaintiff could not recover under the humanitarian doctrine. Walradt v. St. Joseph Ry., L., H. & P. Co., 48 S.W. (2d) 96; Rollison v. Railroad Co., 252 Mo. 539; Hamilton v. Ry. Co., 250 Mo. 721; Riggs v. Met. St. Ry. Co., 216 Mo. 304; Ayers v. Railroad Co., 190 Mo. 228; Hawkins v. Railroad Co., 135 Mo. App. 524. Since the speed of the street car was such that the operator could not stop it within the distance at which he first saw Powers on the track, no case is made under the humanitarian doctrine. State ex rel. Fleming v. Bland, 15 S.W. (2d) 798; Haley v. Railroad Co., 197 Mo. 25; Gabriel v. Met. St. Ry. Co., 130 Mo. App. 651. (4) The plaintiff could not recover in the damage action because the release was a bar, and because of her failure to tender back the consideration; and therefore the circuit court erred in granting the equitable relief prayed. Reid v. Railroad Co., 187 S.W. 18; Long v. Machine Co., 158 Mo. App. 662; Althoff v. Transit Co., 204 Mo. 166; Malkmus v. Cement Co., 150 Mo. App. 446; Carroll v. Rys. Co., 157 Mo. App. 293; Lomax v. Electric Ry. Co., 119 Mo. App. 192; Putnam v. Boyer, 173 Mo. App. 394; Davidson v. Gould, 187 S.W. 591; Wessell v. Waltke, 190 S.W. 628. By accepting the $250 check with full knowledge, of the effect of the release, plaintiff ratified the release. McCoy v. Construction Co., 216 S.W. 771; Brennecke v. Lumber Co., 44 S.W. (2d) 632; Higgins v. Car Co., 22 S.W. (2d) 1044.

Grover & Browne, Allan R. Browne and Benj. W. Grover for defendant in error.

(1) Although the suit is triable de novo the court will defer to the findings of the chancellor who saw the witnesses, and his findings are persuasive, especially if the evidence should be fairly and evenly balanced. Security v. Kellems, 9 S.W. (2d) 967; Aude v. Aude, 28 S.W. (2d) 665; Finley v. Williams, 29 S.W. (2d) 103; Yardley v. Caruthersville, 35 S.W. (2d) 971. (2) Plaintiff alleged and proved prima facie that she had a good cause of action, and defendant treated the meritorious cause of action as properly pleaded throughout the trial, so that an affirmance of the judgment of the chancellor below would not be an idle action. Belcher v. Haddix, 44 S.W. (2d) 177; Whitehead v. Liberty, 56 S.W. (2d) 833; Stevens v. Westport, 25 S.W. (2d) 497; Mitchell v. Smith, 14 S.W. (2d) 47; Ford v. Ry. Co., 300 S.W. 774; Woods v. Moffett, 38 S.W. (2d) 528; Highway Comm. v. Cooper, 286 S.W. 736; Burrow v. Mo. Pac. Ry., 286 S.W. 438; Lorie v. Casualty Co., 8 S.W. (2d) 81; Garbee v. St. L.-S.F., 290 S.W. 656; Howard v. Scott, 225 Mo. 710; 21 C.J. 531; Swift v. Frisco, 15 S.W. (2d) 964; Lopez v. Hines, 254 S.W. 40; Griggs v. K.C. Rys. Co., 228 S.W. 508; Freeman v. K.C. Pub. Serv. Co., 30 S.W. (2d) 176; Whiteaker v. Mo. Pac., 28 S.W. (2d) 680; Riechers v. Meyer, 28 S.W. (2d) 405; Ayers v. Railroad, 190 Mo. 228; 34 C.J. 443; Greenard v. Isaacson, 220 S.W. 694; Hess v. Fox, 140 Mo. App. 437. (3) The representative of defendant was guilty of such words and actions as would and did mislead plaintiff, especially in view of her subnormal condition, both induced by nature and by the circumstances under which she was laboring. Dickson v. Kempinsky, 96 Mo. 259; Seaver v. Phelps, 11 Pick. 304; Tolson's Admr. v. Garner, 15 Mo. 494; R.S. 1929, sec. 782; Hayes v. Sheffield Ice Co., 282 Mo. 446, 221 S.W. 706, 168 S.W. 303; Hubbard v. Lusk, 181 S.W. 1028; Wakefield v. Moore, 186 S.W. 1150; Nelson v. K.C. Pub. Serv. Co., 30 S.W. (2d) 1044; Scott v. Mfg. Co., 20 S.W. (2d) 594; Macklin v. Fogel, 31 S.W. (2d) 14; Krashin v. Grizzard, 31 S.W. (2d) 988; Rau v. Robertson, 260 S.W. 751; State ex rel. Brown v. Trimble, 23 S.W. (2d) 162. (4) It was not necessary under these circumstances for plaintiff to tender back any money received from defendant for the reason that there never was a valid contract or consideration paid on any valid contract, and, therefore, there is nothing to pay or tender back, and this is especially true because plaintiff had disposed of the money before she realized that defendant was claiming that she had signed a release. Forsythe v. Horspool, 49 S.W. (2d) 687; Smallwood v. Frisco, 217 Mo. App. 208, 263 S.W. 550; Hannah v. Butts, 222 Mo. App. 1098, 14 S.W. (2d) 31; Edwards v. Stave, 221 S.W. 744; Malkmus v. Cement, 150 Mo. App. 455; Carroll v. Rys., 157 Mo. App. 293; Hubbard v. Lusk, 181 S.W. 1032. (5) The testimony which defendant claims was false and which, therefore, might taint her cause of action as it claims was on an immaterial matter not relating directly to the transaction complained of and only in a minor way involving morals and then only generally, and is, therefore, not such guilty action as would infect this cause of action, especially since to sustain defendant on these grounds would be to work against the public interest and work an injustice to plaintiff. 21 C.J. 187, sec. 173; Champion v. Heskett, 125 Mo. App. 540.

WESTHUES, C.

Defendant in error brought this suit in equity to set aside a stipulation and judgment dismissing with prejudice her action asking $10,000 in damages against the plaintiff in error. The trial court entered a decree setting aside the stipulation and judgment of dismissal and reinstated the original suit for damages.

The case was brought here by a writ of error. Mable Powers, defendant in error, was the plaintiff and the Kansas City Public Service Company was the defendant in both actions. In the course of the opinion we shall refer to Mable Powers as plaintiff and the service company as the defendant. In the original suit plaintiff asked damages against defendant for the...