Rabitte v. Alabama Great Southern R. Co.

• Decision Date: 19 November 1908
• Citation: 158 Ala. 431,47 So. 573
• Parties: RABITTE v. ALABAMA GREAT SOUTHERN R. CO.
• Court: Alabama Supreme Court

47 So. 573

158 Ala. 431

RABITTE v. ALABAMA GREAT SOUTHERN R. CO.

Supreme Court of Alabama

November 19, 1908

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Personal injury action by Mary J. Rabitte against the Alabama Great Southern Railroad Company. A demurrer to replications was sustained, and plaintiff appeals. Affirmed.

Stirling A. Wood, for appellant.

A. G. &amp E. D. Smith, for appellee.

McCLELLAN J.

The plaintiff (appellant) instituted this action to recover damages for injuries received by her in consequence of the alleged negligence of the defendant, a common carrier of passengers. By special plea the defendant set up the defense of payment and written and executed release by the plaintiff of the damages alleged to have been her due, upon the recited consideration of $55. Three replications to this plea were filed by the plaintiff, wherein it is not denied that she executed the release, and confessing that she received said sum from an agent of the defendant, but asserting that the arrangement and her action was induced by the fraudulent acts and advice of agents or servants of the defendant, and that at the time she was mentally and physically in such state as to be unable to fairly take care of her own interests in the premises. Among other points of objection to the replications, taken by the demurrer, is that they seek a rescission, on the ground of fraud, of a merely, at the remotely expressed election of the rescinding party, voidable contract, without returning or offering to return, or averring some good reason for not so doing, the money received thereunder. Waiving consideration of all other grounds urged, the demurrer was well sustained on the point just stated.

The principle invoked has been often applied by this court to cases of various kinds of agreements and contracts merely voidable, upon seasonable election, in consequence of fraudulent representations or acts practiced upon the party desiring to rescind the same. In order to clothe himself with all the legal habiliments of right to be restored to that with which he has parted as a result of the fraud imputed to his adversary, or to remove the impediment of his agreement of contract, he must make restoration of what he has received from the adversary, place him in statu quo, or he must show it was worthless, thus obviating the necessity to a restoration of the valueless, or that an offer of restoral would have been futile, or that it had...