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

• Decision Date: 09 November 1915
• Docket Number: Case Number: 5716
• Citation: 52 Okla. 349,1915 OK 890,152 P. 1103
• Parties: ST. LOUIS & S. F. R. CO. v. BRUNER.
• Court: Oklahoma Supreme Court

1915 OK 890

152 P. 1103

52 Okla. 349

ST. LOUIS & S. F. R. CO. v. BRUNER.

Case Number: 5716

Supreme Court of Oklahoma

Decided: November 9, 1915

Syllabus

¶0 1. PLEADING--Answer--Admissions--Denial of Written Instrument--Verification. In all actions allegations of the execution of a written instrument shall be taken as true, unless the denial of the same is verified by the affidavit of the party, his agent or attorney. So where, in an action for personal injuries, the defendant pleaded an accord and satisfaction of the cause of action, and attached to its answer a written release, which it alleged in the answer was executed by the plaintiff, held, the execution of the release was admitted, unless denied by a verified reply.

2. SAME. The dictum in Doughty v. Funk, 24 Okla. 312, 103 P. 634, that in such case the verification is waived, unless attacked by a motion to strike the pleading from the files, is disapproved.

3. STATUTES-- Construction. Where a statute is taken from another state which had been previously construed by the highest court of that state, the statute is deemed to have been adopted with the construction so given it.

4. RELEASE-- Validity--Fraud. Fraud is never presumed, and where a written contract is attacked on the ground of fraud, the burden is on the party alleging the fraud to establish it by clear, strong, and convincing proof.

5. EVIDENCE-- Presumptions--Suppression of Evidence. Where it lies within the power of a party to produce evidence upon an issue, the burden being on him, and he fails to produce such evidence, the presumption follows that such evidence, if produced, would be unfavorable to the cause of such party.

6. RELEASE-- Validity--Setting Aside. It is the policy of the law to encourage the settlement and compromise of controversies, and while this court will not hesitate to set aside a release from damages in a personal injury case where it has been obtained by fraud, yet it will not do so in the absence of evidence that it was obtained by fraud.

7. CONTRACTS--Failure of Consideration--Burden of Proof--Verification. Where the execution of a written instrument is admitted, but want of consideration therefor pleaded, the burden is upon the party executing the instrument to prove by a preponderance of the evidence the want of consideration. Rev. Laws 1019, secs. 934, 935.

Error from District Court, Creek County; Wade S. Stanfield, Judge.

Action by Mollie Bruner against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This was an action for damages, alleged to have been caused by the negligence of the plaintiff in error, occurring at a grade crossing at Hickory street, one of the streets in the city of Sapulpa. The petition is in the usual form, and, in the view we take of the case, need not be set out. The answer was a general denial, alleged contributory negligence, and as a fifth defense set up:

"Fifth. That there has been a complete accord and satisfaction between plaintiff and defendant covering all claims, causes of action, and rights growing out of said alleged injuries, in that on the 12th day of November, 1910, plaintiff, in consideration of the sum of $ 50 then and there paid her, fully discharged and released the defendant from all liability for all claims growing out of said alleged injuries, and then and there executed a written release, which is attached to the answer as Exhibit A and made a part thereof."

The release is as follows:

"Whereas, on the 12th day of November, 1910, A. D. Bruner and his infant children, Florence and Mollie Bruner, of near Sapulpa, Creek county, Okla., were thrown from a wagon near the place where the St. Louis & San Francisco Railroad crosses Hickory street, when mules hitched to a wagon in which said A. D. Bruner was driving became frightened at an engine on the St. Louis & San Francisco Railroad, throwing them out and injuring the said A. D. Bruner and his said children, Florence and Mollie Bruner, and damaging wagon and harness;

"Whereas, said expenses have accrued against the said A. D. Bruner for medical attention for himself and his said children and repairs to his said wagon and harness;

"Whereas, it is the desire of the said A. D. Bruner and his said minor children to settle any claim they may have arising from and growing out of the injuries to the said Florence Bruner and Mollie Bruner and damages to wagon and harness:

"Now, therefore, in consideration of the premises in the sum of $ 50 duly paid to the said A. D. Bruner for himself and as next friend of his said children, and in behalf of the receipt of which is hereby acknowledged and confessed, the said A. D. Bruner hereby releases said St. Louis & San Francisco Railroad Company from any and all claims or causes of action which the said minor children or the said A. D. Bruner as their next friend, or in his own behalf, or either of them may have against the said St. Louis & San Francisco Railroad Company on account of the above-mentioned injuries to the said minor children, acknowledged that said sum was paid them in full payment and satisfaction of any claim that they or either of them have upon the said company, and the said A. D. Bruner hereby covenants that he will, as next friend of the said minor children, cause a proper release to be executed to the St. Louis & San Francisco Railroad Company on behalf of his infant children in legal form, legally releasing and acquitting said company from any cause of action on that account, and the said A. D. Bruner hereby covenants that he will indemnify said railroad company against any suit, cause of action, or recovery on account of said injuries received by said infant children in his own behalf or any other person, guardian, or next friend, or other persons whomsoever suing for the said Florence and Mollie Bruner, his said minor children.

"Done this 12th day of November, 1910.

[Signed]

"A. D. BRUNER,

"FLORENCE BRUNER,

"MOLLIE BRUNER."

The plaintiff filed an unverified reply, as follows:

"Comes now Mollie Bruner, and for reply to the answer of the defendant herein denies each and every allegation of new matter therein contained.

"And for further reply to said answer denies that she ever received or accepted any sum of money from said defendant herein, signed any release, or released said defendant from any liability. Plaintiff further says that, if she did sign any release concerning the matters herein, that the same was obtained by fraud and was without consideration, and that the same is void."

The case went to trial on the issues raised by these pleadings. The plaintiff introduced no evidence whatever to support the allegations of her reply that the release signed by her was obtained by fraud, or that she did not receive any money from the defendant below, or that the release was without consideration. At the close of the plaintiff's evidence the defendant demurred thereto, which was overruled, and exception saved, and at the close of all the evidence the defendant requested a peremptory instruction to the jury to return a verdict for it, which was refused, and exception saved, and the defendant brings the case to this court by petition in error and case-made.

W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error

Pryor, Rockwood & Lively, for defendant in error

DEVEREUX, C.

¶1 (after stating the facts as above). The defendant below set out a copy of the release purporting to be signed by the plaintiff, and alleged that it was executed by her. The reply was not verified, and therefore admitted the execution of the written instrument. Rev. Laws 1910, sec. 4759, provides:

"In all actions, allegations of the execution of written instruments and indorsements thereon * * * shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney."

¶2 In construing this statute, it is held in Harwick v. Atchison, 8 Okla. 608, 58 P. 747:

"Where plaintiff founds his claim to the property in controversy upon a certain note and chattel mortgage, and gives a copy of said note and chattel mortgage in his * * * pleadings, and makes it a part thereof, and the defendant does not deny the execution of such note and mortgage by affidavit, it is not necessary for the plaintiff to prove the execution thereof or the amount due."

¶3 In Dunn v. Claunch, 15 Okla. 27, 78 P. 388, it is held that, in an action on a forthcoming bond, an unverified general denial admits the execution of the bond. In St. L. & S. F. R. Co. v. Phillips, 17 Okla. 264, 87 P. 470, it is held that, where a special contract for the carriage of goods is executed by the plaintiff, and in an answer to a petition for damages done the goods the contract is attached, to which the plaintiff replies by an unverified general denial, the execution of the contract is admitted.

¶4 In M., K. & T. Ry. Co. v. Hancock, 26 Okla. 265, 109 P. 223, it is said:

"Since defendant in error's reply was not verified by their affidavit, their denial therein of the execution of the special contract was without effect, and its execution stands admitted (section 4312, Wilson's Rev. & Ann. Stats.), and the burden of showing the want of consideration sufficient to support the instrument lies upon them who seek to avoid it (Wilson's Rev. & Ann. Stats., sec. 774)."

¶5 And the same construction is put on the statute in Guthrie & Western R. R. Co. v. Rhodes, 19 Okla. 21, on 25, 91 P. 1119, 21 L. R. A. (N. S.) 440; Board of Commissioners of Day County v. State of Kansas, 19 Okla. 375, on 394, 91 P. 699; St. L. & S. F. R. Co. v. Cake, 25 Okla. 227, 105 P. 322; Ft. Smith & W. R. Co. v. Solsberger, 38 Okla. 40, 131 P. 1078; Long v. Shepherd, 35 Okla. 489, on 493, 130 P. 131.

¶6 The Supreme Court of the State of Kansas, from which state this statute was adopted, gave the same construction to it long prior to its adoption in this state, in an unbroken line of...