Rau v. Robertson

• Decision Date: 07 April 1924
• Docket Number: 23124
• Parties: RAU v. ROBERTSON
• Court: Missouri Supreme Court

260 S.W. 751

RAU v. ROBERTSON

No. 23124

Supreme Court of Missouri, First Division

April 7, 1924

Taylor R. Young and Marsalek & Stahlhuth, all of St. Louis, for appellant.

Bryan Williams & Cave, of St. Louis, for respondent.

OPINION

RAGLAND, J.

This is an action grounded on negligence for the recovery of damages for personal injuries. On the night of July 5, 1919 while plaintiff was crossing a public street in the city of St. Louis, she was struck and injured by an automobile driven by defendant. The injuries sustained by plaintiff as a result of the collision, which were discoverable immediately afterward, consisted of the fracture of two ribs, various sprains and bruises, and nervous shock. The petition charged defendant with specific acts of negligence, alleged that they were the direct and proximate cause of the collision and the resulting injuries to plaintiff, and prayed judgment for $ 20,000. The answer pleaded contributory negligence; it also pleaded a release. With reference to such release the reply set forth:

'* * * Defendant * * * assured her, upon the advice of said physicians whom he had employed to attend her, as he claimed and stated to plaintiff, that she had suffered only slight physical injuries, and that she was merely laboring under nervous excitement, which said statements of defendant as to the extent of her injuries were false, but by her believed to be true; that defendant at said hospital, on or about the 13th day of July, 1919, further stated to plaintiff that as a condition to her removal the rules of said hospital required her to sign a certain paper, which he then presented to her and requested her to sign, stating it was only a form to comply with the rules and requirements of said hospital, but which was neither read to or by plaintiff, and upon said request and representations of defendant plaintiff then signed said paper presented to her by defendant for the purpose, as she was informed by defendant and believed to be true, of being removed from said hospital to her home, which said paper thus signed by her was and is the pretended release pleaded in the answer filed herein; that said representations made by defendant to induce, and which did induce, plaintiff to sign said pretended release, were false and known to defendant to be false, but because of the enfeebled condition of her body and mind, and her confidence in said promises of defendant to bear all expenses occasioned by her said injuries, and to make her a liberal weekly allowance for her loss of time from her work, she believed them to be true, and was thereby induced to sign said pretended release at the request of defendant, as aforesaid.

'Plaintiff further states that she was not advised of and did not know the provisions of said pretended release, or the extent of her said injuries, until about four weeks after she had signed said pretended release, as aforesaid, but upon being advised she tendered back to defendant the sum of eighty ($ 80.00) dollars which he had paid to her, but which he refused and yet refuses to accept, and which plaintiff yet offers to return to defendant, or to credit upon any judgment which may be rendered herein in her favor.'

At the close of plaintiff's evidence the court directed a verdict for defendant. The propriety of that ruling is the question presented on the record here. As respondent admits that the evidence was sufficient to take the case to the jury on the question of defendant's negligence, it will only be necessary to set out and consider such evidence as has a bearing on the giving of the alleged release.

Plaintiff was 44 years of age, unmarried, and by occupation a milliner. It does not appear that she had ever been in business for herself. Immediately following her injury defendant conveyed her to Barnes Hospital, and there made whatever arrangements were made for her care and treatment. With respect to what subsequently occurred she testified:

'Mr. Robertson took me to the hospital. He came to see me at the hospital Sunday afternoon, the day after I was hurt, about 1 o'clock. I saw him again Monday night. That evening we never talked about anything at all -- just sociable. He brought me a box of candy, a magazine, and an evening paper, and we talked over things. He even talked about the Christian Science Church. We didn't say anything about the accident. He came out again Wednesday night. On that occasion we talked about the X-ray bill. I complained about the doctor's waking me up about 10 o'clock in the morning -- I didn't sleep all night -- and Mr. Robertson said, 'Well, he had the nerve to bother you about that,' and then he went out and saw the doctor. Then I am quite sure he was out Thursday night, but nothing was mentioned about me signing any paper until Sunday -- the second Sunday after the accident -- about one hour before we started home. I had been in the hospital a week and that one day. That was the first time he said anything about signing the paper. He came Sunday evening, July 13th, about 7 o'clock, to take me home, because my sister Bertha phoned him in the morning and told him I would be ready to go home. I was ready to go home when he came, and he and Bertha stepped out into the hall and stayed there quite a while. I felt lawfully weak and sick, so I walked over to a large armchair near the window and sat down. The door into the hall remained open, and my sister and Mr. Robertson walked down the hall a piece. Then Mr. Robertson and Bertha came back into the room and he handed -- put this paper on the arm of my chair. This is the way it was folded, like this (indicating), handed me a pencil, and said, 'Sign your name right here.' He said, 'I will give you $ 80, four weeks' salary,' and I said, 'Oh, Mr. Robertson, why don't you pay the hospital bill, and wait and see many weeks I will be out, so I can go home?' And he said, 'I cannot pay the hospital bill unless you sign that paper -- unless you sign that paper.' He said, 'If you sign that, I will pay your salary as long as you are out, if you sign that paper or not;' and then Bertha -- then I started to put down the 'E,' and Bertha said, 'Emma, I wouldn't sign that paper.' Then Mr. Robertson said, 'I cannot pay the hospital bill unless you sign that paper.' And then he says, 'You and I are going to be friends after this.' So I looked up at Bertha, and I said, 'Bertha, I believe Mr. Robertson is all right; I believe he is a man of his word, and I believe he will keep his promise,' and so I signed my name and address on that. * * *

'After I signed this paper, Mr. Robertson took me home in his machine. When we got home, he said to my mother, in the presence of myself and my sister, he would see for me and pay my salary as long as I was out of work. Mr. Robertson called up the next week and the third week, and asked how I was getting along. I next saw him on Friday, four weeks after the accident, at his office. I went there to ask him for another week's salary. I told him that I would have to wear these straps for another week, and it was very hot, and I said, 'My, that hurts me terribly, and I cannot sit up, and I want another week's salary -- if he would give me another week's salary.' Mr. Robertson did not give me any satisfaction about another week's salary. He said he would get another lot of nurse's bills or things like that; that is all he said. I learned that this was a release about three weeks after the accident -- three weeks after I signed it, when he called up over the telephone and told mother. After the telephone conversation, mother came upstairs and said she wanted to read that paper. When I signed it, I was under the impression I was signing for four weeks' salary. It was too dark in the room to read it. It was folded over, and I didn't see anything to read, and it was too dark to read the paper, and, besides, I was too sick to read. * * *

'Q. Did Mr. Robertson tell you what that paper was you were signing? A. Not a word; not a word.

'Q. Did you read that paper? A. No, sir; I did not read that paper.

'Q. Did he read it to you? A. No, sir; no, sir.

'Q. Did any one read it to you? A. No one; no, sir.

'Q. Did anybody tell you what paper you were signing? A. No, sir; no, sir.

'Q. Did you know what paper you were signing? A. No, sir.

'Q. Now, did Mr. Robertson say to you that it was necessary to sign that paper before he could pay the hospital bills? A. Yes, sir.

'Q. Tell us everything, Miss Emma, Mr. Robertson said to you before you signed that paper. A. That is all that was said before I signed the paper.

'Q. What did he say? A. He said he could not pay the hospital bill unless I signed the paper; that he would pay me my salary as long as I was out, whether I signed this paper or not; and that he and I were going to be friends; and that is all there was said.

'Q. Did he say as long as you were out? Out of what? A. As long as I was out of work; as long as I wasn't able to go back to work. He also said he was positive -- the doctors told him, and he was positive -- that I would be well in two weeks, and be fully able to go to work in four weeks. * * *

'At the time I signed the paper [the release] Mr. Robertson did not tell me what it was that I was signing. He told me that that was merely a receipt for my four weeks' salary; that I would have to sign that paper in compliance with the rules of the hospital; that it was the rules of the hospital. He did not say what was in it; what I was signing it for. He said that I would have to sign that paper in order to get out of the hospital; that it required me to sign the paper, so that I could go out of the hospital, and I wanted to go home. I believed what Mr. Robertson told me. I believed I was signing for four weeks' salary, the way...