Schubert v. St. Louis Public Service Co.

• Decision Date: 11 October 1948
• Docket Number: No. 40790.,40790.
• Citation: 214 S.W.2d 420
• Parties: ELIZABETH A. SCHUBERT, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.
• Court: Missouri Supreme Court

214 S.W.2d 420

ELIZABETH A. SCHUBERT, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.

No. 40790.

Supreme Court of Missouri.

Division Two, October 11, 1948.

Motion for Rehearing or to Transfer to Banc Overruled, November 8, 1948.

Appeal from Circuit Court of City of St. Louis. — Hon. William S. Connor, Judge.

AFFIRMED.

Fordyce, White, Mayne, Williams & Hartman and F.W. Schwarz for appellant.

(1) The evidence did not show any fraud, misrepresentation or deception on which plaintiff could rely; her failure to read the release or have it read and the cashing of the settlement check three days later estops plaintiff from claiming invalidity. Dyrssen v. Union Elec. L. & P. Co., 317 Mo. 221, 295 S.W. 116; Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W. (2d) 82; Brennecke v. Ganahl Lumber Co., 329 Mo. 341, 44 S.W. (2d) 627; Alford v. Wabash Ry. Co., 229 Mo. App. 102, 73 S.W. (2d) 277; Anderson v. Meyer Bros. Drug Co., 149 Mo. App. 554, 130 S.W. 829; Higgins v. American Car Co., 324 Mo. 189, 22 S.W. (2d) 1043; Allgood v. Tarkio Electric & Water Co., 6 S.W. (2d) 51; Crimm v. Crimm, 162 Mo. 544, 63 S.W. 489. (2) The release was for good and sufficient consideration. Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S.W. 851; Anderson v. Meyer Bros. Drug Co., 149 Mo. App. 554, 130 S.W. 829; Culver v. Kurn, 193 S.W. (2d) 602; Bethurkas v. Chicago, Mi. & St. P. Ry. Co., 249 S.W. 438. (3) The release covered all known and unknown injuries. The alleged fact that injuries developed subsequently did not affect the validity of the release. Newcomb v. Payne, 250 S.W. 553; Hogard v. Kansas City Rys. Co., 202 S.W. 431; Vondera v. Chapman, 352 Mo. 1034, 180 S.W. (2d) 704. (4) Plaintiff's assertion that she could read the statement written in Kennedy's handwriting but could not read any part of the printed release although the size of the print exceeded the size of the handwriting is contrary to physical facts, inherently unbelievable, beyond reason and contrary to common observation and experience and, therefore, it does not rise to the dignity of substantial evidence and must be disregarded. Plaintiff is charged, therefore, with the ability to read the release. Bauer v. Wood, 236 Mo. App. 266, 154 S.W. (2d) 356; Carner v. St. Louis-S.F. Ry. Co., 338 Mo. 257, 89 S.W. (2d) 947; State ex rel. K.C. Southern Ry. Co., v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915.

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) Neither the defendant's motion for a directed verdict nor its motion for a judgment in accordance therewith specified the grounds upon which defendant sought a directed verdict of judgment n.o.v. Therefore, the point now urged was not properly raised in the trial court. Mo. R.S.A., sec. 847.122; Oganaso v. Mellow, 201 S.W. (2d) 365. (2) The release was not valid as a matter of law. The evidence touching the validity of this release must be viewed in that light most favorable to plaintiff, giving her the benefit of all reasonable inferences and all of defendant's evidence not in conflict with her own. The issue was one for the jury if the minds of reasonable men might differ. State ex rel. Brown v. Trimble, 324 Mo. 353, 23 S.W. (2d) 162. (3) This release was void because of the fraudulent misrepresentations of defendant's claim agent that the release was merely a release of plaintiff to go to her own doctor and that the $10 paid was for X-ray pictures only. Settlement and a final release were never discussed. Because of plaintiff's physical and mental condition and the lack of her eyeglasses, Kennedy was able to take advantage of his superior position. He told her to report back to him for further discussion, and at trial he admitted that when she came to see him in April the question of further payment was considered by him and his superior. Gimmaro v. Kansas City, 342 Mo. 428, 116 S.W. (2d) 11; McMillan v. Isreal, 30 S.W. (2d) 626; Woehner v. F.C. Riddle & Bros. Casket Co., 196 S.W. 381; Porter v. United Rys. Co., 165 Mo. App. 618, 148 S.W. 162; Rau v. Robertson, 260 S.W. 751; State ex rel. Brown v. Trimble, 324 Mo. 353, 23 S.W. (2d) 162; State ex rel. Union Pac. R. Co. v. Bland, 324 Mo. 601, 23 S.W. (2d) 1029; Ensler v. Mo. Pac. R. Co., 324 Mo. 530, 23 S.W. (2d) 1034; Hubbard v. Lusk, 181 S.W. 1028; Nelson v. K.C. Pub. Serv. Co., 30 S.W. (2d) 1044; Scott v. American Mfg. Co., 20 S.W. (2d) 592; Childeris v. Northern Pac. Ry. Co., 218 S.W. 441; Engle v. American Car & Foundry Co., 287 S.W. 801; Malkmus v. St. Louis Portland Cement Co., 150 Mo. App. 446, 131 S.W. 148; Green v. Chicago, B. & Q.R. Co., 213 Mo. App. 583, 251 S.W. 931; Hornstein v. Alpha Portland Cement Co., 18 S.W. (2d) 121; Austin v. St. Louis Transit Co., 115 Mo. App. 456, 92 S.W. 130; Houghtaling v. Banfield, 8 S.W. (2d) 1023. (4) Deception accompanied by acts or language designed to produce a false impression is equivalent to an actual false statement. Nelson v. K.C. Pub. Serv. Co., supra; Scott v. American Mfg. Co., supra. (5) The gross inadequacy of a consideration paid for a release may also be taken into consideration. Even a slight taint of fraud or unfairness, when coupled with gross inadequacy of consideration, will authorize the setting aside of a release. Vondera v. Chapman, 352 Mo. 1034, 180 S.W. (2d) 704; Southwest Pump & Machinery Co. v. Jones, 87 F. (2d) 879; 53 C.J. 1223. (6) Mrs. Schubert's testimony (supported in part by defendant's Dr. Ambrose), that she could read handwriting but could not read the print of this release without her eyeglasses, was not so contrary to common experience and so inherently improbable that her testimony must be disregarded. Such a finding on appeal could only be made in the most extreme circumstances, which do not obtain here. Murphy v. Fred Wolferman, Inc., 347 Mo. 634, 148 S.W. (2d) 481. (7) Since plaintiff was defrauded, then there is no issue in this case on the question of her alleged negligence. State ex rel. Union Pac. R. Co. v. Bland, supra; State ex rel. Brown v. Trimble, supra. (8) In any event, plaintiff's alleged negligence was a question for the jury. She was not required to exercise that degree of caution which some hypothetical person would have used, but only reasonable care in view of her situation under the circumstances then existing. There was ample evidence that she was not negligent as a matter of law: a 60-year-old woman, partially deaf, unable to read the release since she did not have her eyeglasses with her, in terrific pain after two days of going about with untreated back injuries and a fracture of the pelvis, her mind fixed solely on obtaining medical aid, having confidence in Mr. Kennedy, led by him to believe that she was being given $10 merely to pay for X-ray pictures, and told to return later for further discussion of her claim. Cases cited, supra. (9) There was no substantial evidence that plaintiff ratified defendant's fraud when she cashed the check or that she thereby became estopped to contest the release. In any event, those issues were for the jury and could not be ruled as a matter of law. Rau v. Robertson, 260 S.W. 751; Smallwood v. St. Louis-S.F. Ry. Co., 217 Mo. App. 208, 263 S.W. 550; Nelson v. K.C. Pub. Serv. Co., 30 S.W. (2d) 1044; Houghtaling v. Bonfield, 8 S.W. (2d) 1023; Malkmus v. St. Louis Portland Cement Co., 150 Mo. App. 446, 131 S.W. 148; 23 R.C.L. 390; 45 Am. Jur. 690-691; 53 C.J. 1227-1229. (10) If plaintiff is charged with knowing that she executed a final release, then it was plainly a conditional one and never became effective, since it was signed on the express condition that plaintiff should return for further discussion of her claim after obtaining X-rays and medical attention and after ascertaining how well she got along. Kelley v. Illinois Central R. Co., 352 Mo. 301, 177 S.W. (2d) 435.

ELLISON, J.

This cause was certified to this court from the St. Louis Court of Appeals under Art. V, Sec. 10, Const. Mo., 1945, on the opinion of one of the judges thereof dissenting from the majority opinion, and his certification that he deemed it in conflict with a prior decision of this court, to wit, Poe v. Ill. Cent. Ry. Co., 339 Mo. 1025, 99 S.W. (2d) 82.

The point of difference is whether the respondent is bound as a matter of law by a printed release which she admittedly signed, purportedly compromising and settling for $10 her claim against the appellant for personal injuries sustained while riding as a passenger on one of its busses in St. Louis. Thereafter she brought suit against appellant for damages for said injuries in the circuit court and recovered judgment for $4500. The appellant interposed said release as its main defense. The respondent denied that she read the release or signed it as a full settlement of her claim, and testified the $10 was paid to her to defray the expense of having X-ray pictures taken to ascertain her true condition. The trial court and the majority opinion of the Court of Appeals held she was not conclusively bound by the release and that the question was for the jury. The dissenting opinion held the contrary. The two opinions are reported in 206 S.W. (2d) 708 et seq., where they cover fifteen pages. References should be made thereto for a fuller statement of the facts. We condense them here, our statements in some instances being based on the transcript of the evidence.

The respondent was a widow 61 years old, and employed in the stock room of a department store where she was engaged in marking jewelry for $22 per week. There is no direct evidence as to her education or vision, but it was shown that she had had previous business experience with her husband running a hotel and restaurant in Union, Missouri, managing the help, paying bills, etc. The casualty occurred early in the morning as the bus had nearly reached her place of work. It gave a violent jerk and her hip or back struck a seat. She complained to the bus operator and gave him...