Riney v. Doll

• Decision Date: 10 May 1924
• Docket Number: 24,940
• Citation: 116 Kan. 26,225 P. 1059
• Parties: IRA RINEY, Appellee, v. C. E. DOLL et al., Appellants
• Court: Kansas Supreme Court

225 P. 1059

116 Kan. 26

IRA RINEY, Appellee, v. C. E. DOLL et al., Appellants

No. 24,940

Supreme Court of Kansas

May 10, 1924

Decided January, 1924.

Appeal from Seward district court; CHARLES E. VANCE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NOTE AND MORTGAGE--Defense of Duress--Threats Insufficient to Constitute Duress. A threat in the alternative to give one a beating at some remote, future, indefinite time is not such a threat of personal violence as will constitute duress.

2. SAME--Duress. It is not duress for one to threaten to take such legal proceedings as the law affords to recover damages for claimed injuries.

3. SAME--Duress--Threat Not a Threat of Criminal Prosecution. A threat by one who claims damages from another to prosecute him to the full extent of the law is not tantamount to a threat of criminal prosecution.

4. SAME--Threats Amounting to Duress. Threats of personal violence or of criminal prosecution to amount to duress must be of such a character or made under such circumstances as to destroy the will of the one threatened to such an extent as to compel him to act in a manner contrary to his will and to his detriment.

5. SAME--Instruction Relating to Duress. An instruction that threats of criminal prosecution must be of such a character as to overcome the will of a person of ordinary firmness is erroneous, but, held, under the facts in this case, not to constitute reversible error.

J. W Davis, of Greensburg, for the appellants.

G. L. Light, and F. O. Rindom, both of Liberal, for the appellees.

OPINION

HARVEY, J.:

This is an action on a promissory note and to foreclose a mortgage. The defense was duress. It was tried to a jury, verdict and judgment for plaintiff, and defendants appeal.

Riney owned an automobile which he took to Doll, a car painter, to be painted. Without authority to do so Doll drove the car on a trip, had an accident and damaged the car. Riney asked Doll to pay or settle the damage. At the time Riney was quarantined at home because of scarlet fever in his family and he told Doll to settle with an attorney whom he named. Doll employed an attorney. After some bickering the two attorneys and Doll got together and agreed upon the settlement. In effect they agreed that the car was worth $ 1,400 before Doll damaged it, and Doll and his wife executed a note to Riney in that amount and secured the same by a second mortgage upon real property. Doll did not want to keep the car, so an agreement was drawn and signed by the attorneys by which Doll was to take the car to certain mechanics and have it repaired. Then Doll was to paint it and sell it, Riney to assist in effecting a sale, and the proceeds were to be applied, first, to pay the mechanics for making the repairs, and the balance upon the note to Riney. This was done, and this suit was brought to recover the balance due upon the note and to foreclose the mortgage.

The defendants filed separate answers, admitted the execution of the note and mortgage and that the same was not fully paid, but averred that they were executed under duress. On that point Doll's answer alleged that "plaintiff called upon the defendant and presented him with the contract, note and mortgage set forth in the petition. . . . At that time . . . plaintiff . . . demanded that they sign the same immediately and stated to these defendants that if they failed or refused to sign the same, he would have the defendant, C. E. Doll, criminally prosecuted. The plaintiff further threatened the defendant with physical violence; and the defendants, believing that if they did not sign the said contract, note and mortgage, the plaintiff would carry out his threat of instituting criminal proceedings and of doing the defendant bodily injury." The answer further avers that had it not been for fear of prosecution and physical violence he would not have signed the contract, note and mortgage, and further, that the amount was greatly in excess of the damages to the car and was unconscionable and unjust. The separate answer of Mrs. Doll averred that at the time she signed the note and mortgage she was advised that plaintiff had made threats to her husband to have him criminally prosecuted and had also threatened him with personal violence and that she feared the threats would be carried out and this was her sole reason for signing the instruments. The reply was a general denial.

The evidence disclosed that the car was damaged the morning of October 12. Doll saw Riney that day and told him he wanted to pay the damage he did to the car. The note, mortgage and contract were drawn at the office of plaintiff's attorney late in the afternoon of October 15. The persons present at that time were plaintiff's attorney, Doll, and his attorney. Riney was not present; neither was Mrs. Doll. Doll signed the note and mortgage at that time and his attorney took them to Doll's residence, where they were signed by Mrs. Doll without objection. Neither Riney nor his attorney was present. She had never talked to Riney and did not know him. There is no claim that Riney's attorney made any threats of any character which induced the execution of the instruments. In fact, the evidence is that plaintiff's attorney asked Mr. Doll to get an attorney to look after his interest, that he might be fully protected.

The evidence concerning duress is substantially as follows. Doll testified that on October 15:

"I went down to Mr. Riney's house about eleven o'clock and Mr. Riney came out of the house. . . . We talked about his car and he told me this was only a second mortgage and he wanted a mortgage on the other place. I told him my wife would not listen to that. I started to go to the car and Mr. Riney said: 'I am not through with you.' And he reached in and shut the car off. He said: 'Any man that takes another man's car out like you did and wrecks it is a d dirty dog as ever lived.' He said: 'I will prosecute you to the fullest extent of the law if you do not fix that deal up with Mr. Light at his office, and then if I cannot do anything with you I will beat the soup out of you."

He further testified:

"I made up my mind to sign it because of the threats. Q. What was you afraid of. A. I was afraid he would fulfill his statements. Q. What was you afraid of. A. I was afraid he would beat the soup out of me and get out a criminal action against me. . . . He looked me straight in the face. I thought he was going to hit me any minute. He said he would beat the soup out of me. Q. When did you first become frightened and scared of Mr. Riney. A. When he hollered that he was not through with me. . . . Q. Did Mr. Riney make any threats or do anything except shut off the car that day you were up to his house. A. Yes, sir, after he shut off the car he had his fist up there and I thought he might hit me. I told him I was in no shape and commenced to beg him not to hit me. He said, 'I won't do it now, but I will afterwards."

This testimony is corroborated in part by defendant's son, Cecil Doll, who was with him. The evidence is that these threats were communicated to Mrs. Doll by her husband (though that testimony was later withdrawn) and by the son. Mr. Doll's attorney testified that he had objected all the time to that kind of a contract being drawn because he thought it was not to Doll's best interest; that the damages were too high; that he did not tell Doll not to sign it, but it was not his way of a settlement, he wanted to see what the damages were; that at the time the contract, note and mortgage were signed Doll did not appear to be nervous and excited, although prior to that time he had been and seemed to be worried about something.

At the close of the testimony plaintiff demurred to the evidence as not being sufficient to show duress because of a threat of personal violence nor because of threats of criminal prosecution. The court thought there was enough evidence to go to the jury on the question of threat of imprisonment and overruled the demurrer on that point, but sustained it so far as it went to the question of threats of personal violence, but he did not strike out the testimony pertaining thereto, permitting it to go to the jury for whatever light it might throw upon the defense of duress by threatened imprisonment. The evidence on behalf of plaintiff contradicted defendant's evidence as to any threats, but we have stated that most favorable to the defendants, as shown by the abstract.

Appellant complains, first, that the court sustained the demurrer as to the threats of personal violence. It will be noted that the only threat of personal Violence made by Riney was in the alternative--in the event he could not get redress by law--and in the future, after he had first tried redress by law, which would necessarily mean some time--several months or possibly two or three years. This was about eleven o'clock in the morning. The papers were not drawn nor executed until five or six o'clock in the evening. There was no evidence of threatened imminent personal violence when the papers were drawn and executed. The court did not err in taking this question from the jury. (Gabbey v. Forgeus, Adm'r, 38 Kan. 62, 15 P. 866.)

Appellant further complains of the court's second instruction, defining duress, which reads:

"You are instructed that the defense pleaded by the defendants is what is generally termed 'duress' and duress is defined as that degree of constraint or danger, either actually inflicted, or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firmness."

This definition of duress was taken evidently from the opinion of this court in McCormick v. Dalton, 53 Kan. 146, 149 35 P. 1113, ...