Smith v. St. Louis & S.F.R. Co.

• Decision Date: 22 January 1917
• Docket Number: 18691
• Citation: 112 Miss. 878,73 So. 801
• Parties: SMITH v. ST. LOUIS & S. F. R. CO. et al
• Court: Mississippi Supreme Court

73 So. 801

112 Miss. 878

SMITH v. ST. LOUIS & S. F. R. CO. et al

No. 18691

Supreme Court of Mississippi

January 22, 1917

Division B

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Suit by G. M. Smith against the St. Louis & San Francisco Railroad Company and others. From a judgment for defendant on demurrer to the replication, plaintiff appeals.

The issue presented by this appeal arises upon the pleadings. Appellant at one time was a locomotive engineer employed by the St. Louis & San Francisco Railroad Company, one of the appellees herein, as one of its regular locomotive engineers and while so employed he was run over and seriously and permanently injured by a switch engine at Amory, Miss. About one year after the accident appellant negotiated for and concluded a settlement with the railroad company, by the terms of which he accepted the sum of six thousand dollars cash, apparently in full settlement of all damages sustained by him, and as evidence of this settlement executed a full release to said railroad company. On November 7, 1914, a little more than three years after the accident, appellant brought this action for damages against appellee railroad company to recover fifty thousand dollars for the injuries alleged to have been inflicted by the negligence of the defendant. To the declaration so filed the defendant interposed the plea of general issue and special pleas of accord and satisfaction, or settlement, as reflected and evidenced by said release. The point argued here is raised on plaintiff's amended replication to the defendant's second special plea and the demurrer thereto. The court sustained the demurrer to the replication, and, plaintiff declining to plead further, judgment final was entered dismissing the cause and taxing appellant with the costs. The replication is in the words following:

"For replication to defendant's second special plea, plaintiff avers that said alleged contract of settlement, dated October 2, 1912, and said alleged release, dated October 23, 1912 exhibited with said plea, are fraudulent and void, and have no binding force on this plaintiff, because they were entered into by the plaintiff and the said defendant the St. Louis &amp San Francisco Railroad Company, under the following conditions and circumstances:

"The true consideration of said alleged contract of settlement and release was not the payment to the plaintiff alone of six thousand dollars by the said railroad company, but the large and more important consideration therefor was an agreement on the part of the said railroad company to re-employ the plaintiff as one of its locomotive engineers, the same position occupied by him at the time of his injury, such employment to begin when plaintiff had sufficiently recovered from such injuries, and to continue as to permanency under the same rules and regulations as existed prior to his said injury; and for the purpose of inducing and entrapping plaintiff (who was inexperienced in such matters, and unlearned in the law), into executing said alleged contract of settlement, including said release, the said railroad company designedly, falsely, and fraudulently represented to the plaintiff that it was not necessary to embody said contract of re-employment in said compromise settlement, and falsely and fraudulently promised plaintiff that if he would execute said papers he would be re-employed in his old position, under the same rules and regulations as to permanency as existed before his said injury, which promises and representations were false and fraudulent, and known to be such by said railroad company at the time they were made, and were made for the purpose of entrapping plaintiff into the execution of said compromise settlement, and the plaintiff, relying upon said false and fraudulent representations, executed said compromise papers, which would not have been done except for fraud.

"And the plaintiff avers that he did sufficiently recover to take back his old place of employment with the said defendants, and offered his services time and again, and continued to do so up to the time of the bringing of this suit, and in violation of said compromise settlement, as really intended and made on the part of the plaintiff, the said defendants refused plaintiff re-employment; and therefore plaintiff avers that said compromise settlement as executed and exhibited with said plea is without consideration, and was procured by fraud as aforesaid, and is null and void, all of which plaintiff is ready to verify."

The release in question bears date of October 3, 1912, is in due form and undertakes, for the consideration of six thousand dollars cash, fully to release and acquit appellee railroad company of all claims, demands, or causes of action arising from or growing out of any and all personal injuries therein stated to have been received by Mr. Smith at Amory, Miss. , October 21, 1911.

Affirmed.

W. D. & J. R. Anderson, for appellant.

The brief and argument on behalf of appellees is very largely based on the theory that the replication in question only avers fraud in the performance of the contract of settlement and not fraud in its procurement. We do not see how fraud in the procurement of a contract could be more plainly set out than is done in this replication. The replication charges what the fraudulent statement consisted of; that the statement was never made with the intention of being performed but for the purpose of leading the appellant into the very trap he got into. The fact that a considerable sum was paid the appellant has nothing to do with the principle involved in this case.

We submit that in view of the averments of the replication in question there is no force in the contention of counsel that this contract which was fraudulent in its inception was afterwards ratified by the appellant by his delay in bringing suit and his failure to tender back the amount of money paid him by virtue of the alleged fraudulent accord and satisfaction. The replication avers that the main consideration for the accord and satisfaction was the promise of the reemployment of the appellant when he was able to take his place back; that this promise was fraudulently made; that the railroad never intended to carry out said contract and that when the appellant had sufficiently recovered to take his job back instead of ratifying the contract as written by delay, he repudiated it by continually offering his service as an engineer to the railroad company. That the part of the replication covering this feature of the question is in this language.

"And the plaintiff avers that he did sufficiently recover to take back his old place of employment with said defendants and offered his services time and again and continued to do so up to the time of the bringing of this suit; and in violation of said compromise settlement as really intended and made on the part of plaintiff, said defendants refused plaintiff reemployment, and therefore plaintiff avers that said alleged compromise settlement as executed and exhibited with said plea is without consideration and was procured by fraud as aforesaid and is null and void."

Under the decisions of the supreme court of this state it is settled that the appellant was not required to tender back the amount paid him as the result of the alleged accord and satisfaction. He had the right to retain this as a part indemnity for the injury he had received. Now what more could he have done in order to disaffirm the contract as written than he did do. He repudiated the contract as written. The delay he persistently and continually (after he sufficiently recovered) tendered his services to the railroad company in accordance with the contract as intended. We submit that the appellant could have gone on in this attitude without bringing suit for any length of time short of the period limited by the statute of limitations. The principle we contend for in this case is recognized by several of the leading authorities cited by opposing counsel in his brief. We shall now quote from some of these authorities. In the case of Laird v. Union Traction Co., 57 A. 987, the court said:

"Besides, there being no fraud in obtaining the release, the plaintiff ratified it by using the money weeks after with full knowledge of where it came from and made an offer to return it before bringing suit."

We ask, suppose there had been fraud practiced in obtaining the releases, would there have been a ratification by the delay? In Chicago, St. Paul & K. C. Ry. Co. v. Pierce, 64 F. 293, the court said in part: "Plaintiff was a person in the prime of life. The contract was a valid and binding contract, provided there was no fraud and she had the mental capacity at the time to make it."

In Gibson v. Wnyp. Ry. Co., 30 A. 308, the court said "It was his duty, when he first learned of the existence of the release, to disallow it, and at least, before suit was brought, return or offer to return the money received under it, for it is not pretended any fraud was practiced upon him in obtaining the release. In its worst aspect that was executed when those acting for the company were wholly ignorant of the incapacity which is now alleged to have existed. When there is a disaffirmance of the contract caused by fraud, the injured party may, in some cases, bring his action without repaying or offering to repay the money received on the fraudulent contract. In such cases the money is retained, not as part of the consideration of the contract he denies, but as indemnity for the fraud perpetrated upon him. As he was deceived by falsehood or fraud there is no admission that it was a consideration for the contract, and there is consequently no obligation on him to...