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 |
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:
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:
In Gibson v. Wnyp. Ry. Co., 30 A. 308, the court said ...
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