Smallwood v. St. Louis-San Francisco Ry. Co.

• Citation: 217 Mo. App. 208,263 S.W. 550
• Decision Date: 26 May 1924
• Docket Number: No. 15073.,15073.
• Parties: SMALLWOOD v. ST. LOUIS-SAN FRACISCO RY. CO.
• Court: Court of Appeal of Missouri (US)

263 S.W. 550

217 Mo. App. 208

SMALLWOOD v. ST. LOUIS-SAN FRACISCO RY. CO.

No. 15073.

Kansas City Court of Appeals. Missouri.

May 26, 1924.

[OD] Rehearing Denied June 16, 1924.

1. Release 58(4)—Ability to understand nature of act in signing release or cope with adversary in making bargian held for jury.

Whether plaintiff was in such mental condition as not to understand nature and quality her act in signing release, realize antagonistic position of adversary, or cope with him in making bargain, held for jury.

2. Evidence 14 — No judicial knowledge that signature of release by right-handed person with left hand requires full possession of mental faculties.

Court does not judicially known that signature of release with left hand by right-handed person requires full possession of mental factulties.

3. Release 58(3)—Ratification or adoption of release fraudulently procured held for jury.

Whether plaintiff ratified and adopted release procured by fraud by using part of money paid to husan and deposited to their joint account held for jury.

4. Release 24(2)—Tender of consideration unnecessary to avoid release procedured by fraud.

Where fraud inheres in procurement of release, no tender of consideration is necessary to avoid it.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Cordia Smallwood against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Guthrie & Conrad and Hale Houts, all of Kansas City, for appellant.

C. R. Leslie and Hogsett & Boyle, all a Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $7,500, and defendant has appealed.

The facts show that plaintiff was injured while riding in an automobile being driven by her husband on the evening of June 22 1920, at a point within the limits of Kansas City, Mo., where Twenty-Fifth street is intersected by defendant's railway. The automobile was on Twenty-Fifth street, crossing toward the east, when it was struck by one of defendant's north-bound freight trains, throwing the car upon the pilot of the engine, and pinning plaintiff against the pilot and the wreckage of the car. She was in this position while the train ran about 175 feet. The negligence in the petition is based upon the failure of defendant to sound a whistle or ring a bell within a distance of 80 rods from the crossing, and also running the train in excess of 6 miles Per hour, the speed limit prescribed by an ordinance of Kansas City. The evidence shows that the train was going from 10 to 15 miles an hour.

The answer consists of a general denial and a plea of contributory negligence, and alleges that on the 21st day of July, 1920, in consideration of the sum of $1,300 paid her by the defendant, plaintiff executed a release of her cause of action; said release is alleged to have been in writing, and a verified copy of the same was attached to the answer. The reply consists of a general denial, and alleges that, if plaintiff signed a paper purporting to be a release, she had no knowledge of the contents of the same on account of her weak and defective mental condition at the time of such alleged signing, and on account of such condition she did not understand anything concerning the legal effect of such signing, and had no understanding of the nature and quality of her act, and, if she signed the paper referred to in defendant's answer, it was procured by the fraud of defendant's agent, in that it was procured at a time when they had reason to believe and did believe that she was not mentally capable of making a contract. Plaintiff further alleged in her reply that, if she signed the purported release, it was under the influence of drugs and opiates administered to her by a physician to prevent intolerable suffering, and that these drugs and opiates and suffering affected her mind so that "she was in a stupor and mentally incapable of entering into a contract."

Defendant insists that its instruction in the nature of a demurrer to the evidence 'should have been given. This point is not based upon any contention that defendant was not originally liable for plaintiff's injuries but entirely upon the circumstance of the execution of the release. In the first place, it is insisted that there was, insufficient evidence of a lack of mental capacity on the part of plaintiff at the time she signed the release. The facts in this connection show that when the engine was removed plaintiff was found to be unconscious, and was taken in this condition to her home in Kansas City. A physician was immediately called who found plaintiff unconscious, and with a pulse so fast that it could not be counted; that she was cold, and had a clammy skin caused by a sweat; that she was swollen and had hemorrhages under the skin; that the veins were torn; and that she had bruises on her arm, hand, shoulder, right side, hip, face, and head, and a wound on her scalp that extended to the bone. She suffered from a concussion of the brain.

The evidence shows that plaintiff's right cheek bone, collar bone, right shoulder blade, the bones of four fingers on the right hand, and several ribs on each side were broken; that the pelvis bone was broken twice, and at the time of the trial she had a knot on it as large as a bird's egg; that her right limb was 2 inches shorter than her left. The evidence shows that for a period of six days, excluding June 24th and 25th, she was given hypodermic injections of morphine and again on July 3d, and from July 4th to anti including July 8th she was given bromides, and from July 14th to and including the 25th, except on the 20th and 24th, she was given capsules of codeine. These capsules contained 12 decigrams to 12 capsules, or one-sixth of a grain to a capsule. There was medical testimony to the effect that these drugs, together with the pain and suffering that plaintiff endured as the result of her injuries, would affect her mental processes at the time she signed the release. In addition to direct evidence of plaintiff's mental condition when she signed the purported release on the 21st of July there was testimony by friends who saw her, some before and some after that day, and others at both times, that her talk was irrational from the time she was injured until after the day of the signing of the release; that she acted "like somebody drunk"; that she was not apparently rational on any day for five weeks after her injury; that she would look at a witness whom she knew and ask, "Is that Prank?" (her husband) or would call him by the name of her son; that a part of the time she was in a stupor, "talked in a rather unbalanced manner," and "seemed to be dopey," and did not realize what she said, and one witness stated that she asked why he had not been to see her when he had been there just the day before.

Plaintiff's mother testified that she was constantly in attendance on her daughter after she was injured, and that the doctors gave her hypodermics two, three, or four times a day during the two months plaintiff was in bed; that plaintiff's eyes were glossy and half of the time were shut; that she appeared to be unconscious nearly all the time; that plaintiff appeared to be in her right mind "for a minute," and then "she would close off"; that plaintiff would scream "to the top of her voice" when any one would move her; that when defendant's claim agent came to the house she saw him with a paper (this refers to the release that was then signed), and, in the presence of Smallwood plaintiff's husband, that the agent tried to talk to plaintiff, but that plaintiff did not answer him, and that she held no conversation with him. "Q. Did she appear to understand him or any one else when he was in the room there? A. No, sir; she didn't." At the time she signed the paper plaintiff's eyes were nearly closed. "Q. Did she appear to be conscious of the transaction being made between her" and the claim agent? "A. No, sir; she didn't know a thing or understand a thing. Q. Did she appear to know anything? A. No, she didn't. Q. Now you may state why you say she didn't appear to know anything about the transaction. A. Because she was lying there in a stupor."

She further testified that the claim agent held a paper or papers, and told plaintiff to sign it, and "she kind of scribbled over it." This was done by the left hand because the right was in splints. She further testified that plaintiff had had a hypodermic on that day. On cross-examination she testified that she was seventy years of age; that at the time the claim agent came with the paper to be signed it was three or four days after plaintiff was injured. The witness further testified that she did not know what was in the paper; that she was too busy with her daughter; that she did not pay any attention to what Smallwood and the claim agent were talking about; that "I never pay any attention to what men say when they are talking in the house"; that the claim agent was talking something about settling, "I didn't know just exactly what." She further testified that plaintiff did not utter a word while the claim agent was there, and that she was not asked to read the instrument. She testified that she could not read very well and could not write with a pen; that she did not read the paper being signed or say anything to the claim agent, because "it was none of my business"; when asked what she said to plaintiff's husband, she said, "I didn't say anything; I do not bother men while they are talking; I told you it was none of my business; I have been better raised than to go in and talk to men when they are talking business that way"; that she did not know whether they were talking business; that she did not interfere with men when they were talking. We gather from her testimony that she thought they were talking over...