Roberts v. Central Lead Co.

• Decision Date: 22 July 1902
• Citation: 69 S.W. 630,95 Mo. App. 581
• Parties: ROBERTS v. CENTRAL LEAD CO.
• Court: Missouri Court of Appeals

69 S.W. 630

95 Mo. A. 581

ROBERTS v. CENTRAL LEAD CO.

Court of Appeals at St. Louis, Missouri.

July 22, 1902.

RELEASE — RESCISSION — REFUND OF BENEFIT — RELIEF IN EQUITY — DEMURRER — WAIVER OF OBJECTIONS — TRIAL — CONCLUSIONS OF FACT — APPEAL — REVIEW.

1. Where a party signs a release of a cause of action for personal injuries, and at the time is unable to fully understand the nature of the document because of physical and mental weakness produced by his injuries and the necessary use of drugs, a court of equity will rescind the release on timely application and the refunding of its consideration.

2. Where a duty rests on plaintiff to refund a sum of money as incident to the rescission of a release, it should be performed with reasonable diligence, in view of the circumstances.

3. The jurisdiction of equity to cancel a document obtained by fraud and imposition is not destroyed even though by statute the same facts may be utilized as a defense against the paper in a court of law.

4. A remedial jurisdiction of equity is not eliminated by the enactment of a measure creating a remedy at law in like circumstances, where no intent is expressed in the enactment to extinguish the ancient jurisdiction.

5. Where a party after his demurrer is overruled answers over, he thereby waives all objections except to the jurisdiction of the subject-matter and the failure to state any cause of action, under section 602, Rev. St. 1899.

6. It is competent for the trial court to direct separate trials of two causes of action united in the same petition.

7. Where a party requests the trial judge to state separately conclusions of fact, under section 695, Rev. St. 1899, and the trial court enters a decree, to which his findings of fact are immediately annexed, the error is one of form only, and will be disregarded.

8. It is a maxim that all official action is presumed to be rightly done unless the contrary is shown.

9. Recitals of fact in an overruled motion are disregarded on appeal where the record is silent as to proof thereof.

10. Error of the trial court is not to be presumed; it must be shown in Missouri.

11. In equity cases, where the proof depends on the credibility of oral evidence, the appellate courts defer somewhat to the judgment of the trial judge, and do not reverse his findings of fact unless satisfied that they are against the preponderance of the evidence.

12. It is the duty of appellate courts to distinguish between form and substance, to disregard errors which do not affect the substantial rights of the adverse party, and not to reverse a judgment unless for error materially affecting the merits.

13. In an action presenting two counts, the first setting aside a release as having been fraudulently procured, the second a cause of action for damages on account of negligence, the appellate court may affirm as to one count and reverse as to the other.

14. On the second count (for damages for negligence) the court follows the decision in Fisher v. Lead Co., 56 S. W. 1107, 156 Mo. 479.

(Syllabus by the Judge.)

Appeal from circuit court, St. Francois county; Jas. D. Fox, Judge.

Action by Willis A. Roberts against the Central Lead Company. Judgment for plaintiff. Defendant appeals. Modified.

Wm. Carter and Percy Weber, for appellant. M. R. Smith and J. A. Abernathy, for respondent.

BARCLAY, J.

This suit presents two distinct phases defined by two counts of the petition. Plaintiff was injured while in the employ of defendant as a miner, and he executed a document which defendant relies upon as a release of liability. The first count of plaintiff's petitions aims to cancel the document on grounds to be mentioned more fully presently, while the second count states a case for the recovery of damages for personal injuries caused by negligence alleged.

Some dates which mark important points in the history of the case are these: 1896, November 7, plaintiff received the injury; 1897, February 23, plaintiff signed the release; 1897, September 11, plaintiff's petition was filed; 1897, October 9, the amended petition was filed; 1897, November 10, demurrer to amended petition; 1897, November 12, demurrer sustained; 1898, April 18, second amended petition was filed; 1898, May 9, demurrer to second amended petition; 1898, November 19, order that plaintiff pay $200 into court; 1899, May 9, last demurrer overruled, and answer filed; 1899, May 9-22, reply filed, trial on first count, and decree for plaintiff. The second amended petition on which the case was tried alleges in the first count a permanent injury to plaintiff by the fall of a large fragment of rock upon him from the roof of defendant's mine near the town of Flat River, Mo., where plaintiff was employed by defendant as a miner, operating a drill. It then states that defendant took plaintiff immediately in charge, and caused him to be treated for his said injuries; employed a physician and nurse to attend him for about three months, until plaintiff removed to Kansas, in February, 1897; that, just as he was about to remove to Kansas, the superintendent of the defendant came to see plaintiff, and presented to him a paper which he called a receipt for money, and asked him to sign, which plaintiff did without reading it. A copy of the document accompanied the petition (in terms to be recited in this opinion later), and the petition went on thus: "Plaintiff states that he signed the paper writing or pretended release and discharge, hereto attached as Exhibit A, with the belief that it was merely a receipt for money, and without any knowledge whatever that it was a writing designed to take from him the right or cause of action that he had at the time against the defendant company, as doth fully appear hereinafter; and, further, that the object and purpose of said writing, although carefully concealed, was, on the part of defendant company, fraudulently intended to deprive the plaintiff of his rights of action as aforesaid. Seventh. Plaintiff admits and states that he signed said pretended release without any knowledge of its true character and purpose, and states that he signed it under the mistaken belief or misapprehension that it was a receipt for money. Eighth. And further states that at the time of signing said pretended release he was suffering great mental and physical pain; that his mind in consequence thereof, and of taking and having taken prior thereto large and frequent doses of opiates in one form and another to temper his sufferings aforesaid, was clouded and impaired, so much so that he did not comprehend his acts, and did not realize, not having heard read said pretended release, and not being able to read it, what he had done when he signed said pretended paper. Ninth. Plaintiff charges and avers that the nature and purport of said paper was well known by defendant; that it had been prepared by it and was taken, ready to be signed, to this plaintiff, who was at the time in a serious and suffering condition, and was then and had been for days under the influence of opiates as aforesaid, and did not realize as aforesaid what he was doing, but yet, notwithstanding his condition as aforesaid, which was well known to defendant, said defendant, by its agents, by false and fraudulent representations, solicited plaintiff to sign said pretended release and discharge, telling him at the time that it was only a receipt for money, and he not knowing or being made to understand that said paper was in fact in the form of a release and discharge of all rights and causes of action for damages that he then and there had against the defendant, and not a receipt as informed aforesaid, the same he signed as aforesaid under the mistaken belief that it was a receipt only. Tenth. Plaintiff states that his name was procured to said pretended release in consequence of his physical and mental condition as aforesaid, and the fraudulent conduct and statements made by defendants at the time through its agent and Officer as aforesaid, and, it being so procured under such circumstances and by the means and manner as aforesaid on the part of defendant, said pretended release and discharge should and ought to be canceled and for naught held. Eleventh. The premises considered, plaintiff prays the court to take testimony on the validity of said pretended release, and that the same for the reasons offered be declared void and canceled and for naught held, and for such other orders as would be just and proper." The second count (which sets forth plaintiff's claim for damages on account of the alleged negligence of defendant) will not call for much notice at present for reasons to appear further on.

The defendant demurred to the second amended petition on the following grounds: "First. Because plaintiff's petition does not state facts sufficient to constitute a cause of action against defendant. Second. Because the plaintiff wholly failed to exercise his right, if any he had, to rescind the contract of release pleaded in the first count of plaintiff's petition until long after the same had been executed, to wit, on the 23d day of February, 1897, until the 11th day of September, 1897, at which date he filed his original petition in this cause; and because he has not shown any reason for such delay, and therefore ought to be estopped from gainsaying the validity of said release. Third, Because plaintiff has wholly failed to tender to the defendant the money received by him from plaintiff at the time of the execution of said release, and has wholly failed to tender or offer to pay to defendant the expenses attendant upon his sickness, which were paid by the defendant, nor does he now tender or offer to pay said sums of money, and place the defendant in statu quo, as he is in duty bound to do before he can maintain this action."

While the demurrer was pending the court made the following order in regard to the fund mentioned in the receipt, viz. (omitting caption): "Ordered that ...