Robinson v. Missouri Pacific Transp. Co., 4-4276.

• Court: Arkansas Supreme Court
• Writing for the Court: Mehaffy
• Citation: Robinson v. Missouri Pacific Transp. Co., 93 S.W.2d 311, 192 Ark. 593 (Ark. 1936)
• Decision Date: 20 April 1936
• Docket Number: No. 4-4276.,4-4276.
• Parties: ROBINSON et al. v. MISSOURI PACIFIC TRANSP. CO.

Page 311

93 S.W.2d 311

ROBINSON et al. v. MISSOURI PACIFIC TRANSP. CO.

No. 4-4276.

Supreme Court of Arkansas.

April 20, 1936.

Appeal from Pulaski Chancery Court; E. R. Parham, Special Chancellor.

Suit by the Missouri Pacific Transportation Company against Mrs. Fearney Robinson and others. From an adverse decree, defendants appeal.

Reversed and remanded, with directions.

Kenneth Coffelt, of Benton, and Wm. J. Kirby, of Little Rock, for appellants.

Carmichael & Hendricks, of Little Rock, for appellee.

MEHAFFY, Justice.

The appellant Mrs. Fearney Robinson brought suit in the Saline circuit court against the appellee for $3,000 damages, alleging that she was injured by the negligence of the appellee.

The appellee filed answer, and, among other things, alleged in the answer "that its agent, in good faith and without prejudice, paid the full amount that appellee demanded and that said payment discharged any and all claims for injury."

There was a verdict and judgment for $2,500 in favor of appellant Mrs. Robinson, and appeal was prosecuted, and on October 14, 1935, the judgment of the Saline circuit court was affirmed by this court. 86 S.W.(2d) 913.

On December 9, 1935, the appellee filed suit in the Pulaski chancery court against Mrs. Fearney Robinson, Kenneth C. Coffelt, W. J. Kirby, Thomas C. Watson, Dr. M. M. Blakeley, Dr. William Feldman, Dr. A. J. McGill, Ethel Jacoway, and R. J. Ashby.

The petition in this case alleged that the Missouri Pacific Transportation Company had paid to Mrs. Fearney Robinson the sum of $65 a day or two after the injury, in full settlement of her claim, and that that amount has never been refunded to it. It prayed that an order be made by the Pulaski chancery court that the amount of $65 be paid to it out of any funds in the court going to Mrs. Fearney Robinson.

Appellants filed answer denying the allegations in the petition and alleging that the matter had already been passed upon by a court of competent jurisdiction, and that the Missouri Pacific Transportation Company has no right or claim to any portion of the money, and that Mrs. Robinson is not indebted to appellee in any sum for anything.

The case was tried in the chancery court on the following agreed statement of facts:

"Comes on for hearing the Petition of the Plaintiff, Missouri Pacific Transportation Company, asking that the Court allow it $65 out of the fund paid into the registry of this Court in the above cause adjudged to be due Mrs. Fearney Robinson, and the Answer of Defendant, Mrs. Fearney Robinson, to said Petition, and both parties agreeing that the cause may be submitted to the Court for decision upon said Petition of Plaintiff and the Answer thereto of said Defendant, and upon the following Agreed Statement of Facts, to-wit:

"On the 3rd day of November, 1934, Mrs. Fearney Robinson, Defendant herein, filed suit in the Circuit Court of Saline County, Arkansas, against the Plaintiff herein, Missouri Pacific Transportation Company, alleging that she was negligently injured by it because of a defect in a certain metal stripping on the floor of its bus, when, in attempting to alight from its bus at Benton, on or about said date, she fell to the ground.

"She alleged that, within a few hours thereafter, the company fraudulently obtained a release from her for the consideration of $65, releasing it from any further liability to her for her said injury. Defendant company answered, denying all of Plaintiff's allegations in her Complaint and charged her with contributory negligence. The cause was tried before a court and jury at the March term of the said Circuit Court, 1935, and the jury rendered a verdict for her in the sum of $2,500.00, she having sued for $3,000.00 and in her Complaint asked that said release be set aside. The cause was appealed by the Missouri Pacific Transportation Company to the Supreme Court of the State of Arkansas and on the ____ day of ____, 1935, the cause was affirmed by the Supreme Court. On the ____ day of ____, 1935, said company filed in this, the Chancery Court of Pulaski County, Arkansas, its Bill of Interpleader, in which it paid into the registry of this Court said judgment of $2,500.00 and accrued interest and cost which had been affirmed by the Supreme Court, alleging that certain parties, including said Mrs. Fearney Robinson, had different interests in said sum and asking that said Court decree as to whom and in what amounts said money should be paid.

"This Court has decreed that out of said fund $700.73 shall go to said Mrs. Fearney Robinson.

"It is further agreed that Mrs. Fearney Robinson actually received the $65.00, and there was no issue made in the trial of the original suit as to its return and no instruction was given in reference to its return."

Appellee states that this case presents two questions: First, is the question res judicata? Second, is appellee entitled to the return of the money paid for the release?

Appellee calls attention first to the case of O. A. Pattison v. Seattle, Renton & Southern Railway Co., 64 Wash. 370, 116 P. 1089, 35 L.R.A.(N.S.) 660. It quotes from said case the following: "According to the larger number of cases, it is unnecessary to return or tender the consideration for a release obtained by fraud, as a requisite to the maintenance of a suit for the damages resulting from the injury, it being sufficient that the amount be deducted from the verdict if one is obtained against defendant."

Among the larger number of cases are the cases decided by this court. It is the established rule of this court that it is unnecessary to return or tender the consideration for a release obtained by fraud as a requisite to the maintenance of a suit for damages. This was recognized by appellee in the case in the Saline circuit court. It did not ask the return of the $65. It is, however, conceded by appellee that the rule established by this court is that it is unnecessary to tender or return the consideration.

Appellee next cites and quotes from 53 C. J. 1232. Immediately following the quotation from C. J., in the same paragraph, is the following: "But there is authority to the effect that such restoration or tender need not be made." The text cites several Arkansas cases. In fact, it has been many times held by this court that a tender or return is not necessary.

A recent case is Missouri Pacific Railroad Company v. Elvins, 176 Ark. 737, ...