St. Louis & S. F. R. Co. v. Richards
| Decision Date | 23 February 1909 |
| Docket Number | Case Number: 2037 OK Ter |
| Citation | 23 Okla. 256,102 P. 92,1909 OK 40 |
| Parties | ST. LOUIS & S. F. R. CO. v. RICHARDS. |
| Court | Oklahoma Supreme Court |
¶0 1. RELEASE--Right to Contest Invalidity--Restoration of Consideration. Where personal injuries have been suffered, for which a liability exists, and a release therefor has been fraudulently procured for a grossly inadequate sum, an action for damage may be maintained without first obtaining a decree to rescind or to cancel the release; and the plaintiff is not precluded from attacking a release so obtained, when it is set up as a defense, because he has not restored or tendered back the amount received by him at the time the release was obtained.
2. ACTION--Conditions Precedent--Offer of Performance. When in an action at law, the tender of performance of an act is necessary to the establishment of any right against another party, such tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused.
3. RELEASE--Personal Injuries--Fraud. Plaintiff was injured while traveling on one of defendant's passenger trains. On the following day, while she was in bed at the railway company's hospital, away from friends or acquaintances, and still suffering from the effects of injuries sustained, the extent of which she did not know and apparently not in a position to ascertain, she was visited by a claim agent and physician in the employ of the defendant. The agent desired to effect a settlement and release of the damages and liability, and, in order to induce defendant to sign such release for a grossly inadequate sum, he and the physician represented to her that her injuries were slight and temporary, when in fact they were serious and dangerous, which fact the physician knew, or should have known had he exercised the proper care. Defendant believed the representations, and acted thereon by signing the release, which she would not have done had she been advised of her true condition. Held, that such facts sustained the averments of plaintiff's reply, which alleged that the release was procured by fraud, and a verdict based thereon will not be set aside on the ground that it is not sustained by sufficient evidence.
4. DAMAGES--Personal Injuries--Excessiveness. In an action for damages for personal injuries, where the evidence shows that plaintiff had always theretofore been well and able to make a living for herself and two children by washing, and also by running a boarding house, keeping from 12 to 15 boarders with the same number of rooms, in which she did all the work herself, making thereby on an average of from $ 65 to $ 75 per month, and which shows that since her injury, a period of about 2 1/2 years, she had been unable to earn anything, but had been compelled to pay out a great deal of money for physician's services, suffering intense pains and agony at times as a result of her injuries, which were probably permanent, we are not able to say that a judgment for $ 6,300 is excessive, or shows by its amount to have been rendered as a result of passion or prejudice.
Flynn & Ames, for plaintiff in error.--On tender of return of consideration for release as a prequisite to suit for damages: Wilson's Rev. & Ann. St. 1903, § 827; Hill et al. v. N. P. Ry. Co., 113 F. 914; Harrison v. A. M. R. Co. (Ala.) 40 So. 394; Harkey v. M. & T. Ins. Co. (Ark.) 35 S.W. 230; Westerfield et al. v. Ins. Co. (Cal.) 58 P. 92; East Tenn.. V. & G. Ry. Co. v. Hayes (Ga.) 10 S.E. 350; Hortley v. C. & A. R. Co., 214 Ill. 78; Home Ins. Co. v. Howard (Ind.) 13 N.E. 103; L. & N. R. Co. v. McElroy (Ky.) 37 S.W. 844; Brown et al. v. Ins. Co., 117 Mass. 479; Hancock v. Blackwell (Mo.) 41 S.W. 205; Bank of Barnesville v. Yocum (Neb.) 9 N.W. 84; Evena v. Gale, 17 N.H. 573; Doyle v. N.Y., O. & W. Ry. Co., 72 N.Y.S. 936; State et al. v. Blize et al. (Ore.) 61 P. 735; Levister v. So. Ry. Co. (S. C.) 35 S.E. 207; Mo. P. Ry. Co. v. Braxil (Tex.) 10 S.W. 403; Kelly v. Kershaw (Utah) 14 P. 804.
Stevens & Myers and Horace Speed, for defendant in error.--On same question: Mo. P. R. Co. v. Goodholm (Kan.) 60 P. 1066; Insurance Co. v. Hall, 51 Ohio St.; Sanford v. Ins. Co. (Wash.) 40 P. 609; Wagner v. Ins. Co., 90 F. 395; Hedlum v. Holy Terror Mining Co. (S. Dak.) 92 N.W. 33; Girard v. Car Wheel Co., 123 Mo. 358; Richards v. Frazier (Cal.) 55 P. 246; Railway Co. v. Lewis, 109 Ill. 120; Gibson v. Ry. Co. (Pa.) 30 A. 308; Harris v. Society, 64 N.Y. 196; Light Co. v. Romold (Neb.) 93 N.W. 971; Obrien v. Ry. Co. (Iowa) 57 N.W. 425; Lumley v. Ry. Co., 76 F. 66; Ry. Co. v. Harris, 158 U.S. 326; Anderson v. Chicago Brass Co. (Wis.) 106 N.W. 1076; 24 A. & E. Enc. Law (2d Ed.) 320; Matteson v. Waggoner (Cal.) 82 P. 436; Thomas v. Beals (Mass.) 27 N.E. 1004; Merrill v. Pike (Minn.) 102 N.W. 393.
¶1 The petition filed for a rehearing in this case resulted in further oral argument on the part of both parties and the filing of a number of additional briefs in which many of the authorities pro and con were again collated, considered, and discussed. No proposition was raised, however, that had not previously received the attention and consideration of the court in its original opinion. The primary contention that plaintiff could not maintain her suit without refunding or tendering to defendant the $ 100 received by her, at the time of the executing of the release, is again insisted upon. The matter has again had our careful consideration, and, while we agree with counsel for defendant that there are a number of authorities--perhaps the greater in number--sustaining their claims, yet the procedure adopted in the trial of this cause has received recognition and sanction at the hands of eminent courts, and we believe substantial justice will usually be effected thereby. It would be futile to attempt in this or any other case of similar character to so decide it that it would be in harmony with all the adjudications.
¶2 In the argument on rehearing, counsel for defendant again insisted that the Oklahoma statute on rescission controlled, and cited us to a number of authorities of California where analogous questions had, as we claimed, been before that court under a statute like this one, and been determined in conformity with their contention. Some of the cases cited, to our mind, were not applicable, while the declaration of the court in the case of Hammond v. Wallace et al., 85 Cal. 522, 24 P. 837, 20 Am. St. Rep. 239, met with the dissent of Justice Works and Chief Justice Beatty, and another one of the cases on which counsel relied ( Marten v. Burns Wine Co. et al., 99 Cal. 355, 33 P. 1107) was repudiated and overruled by the highest court of that state, in the case of Matteson et al v. Wagoner et al., 147 Cal. 739, 82 P. 436. No case where the facts were like those in this case was referred to. The case which, in our judgment, most nearly meets defendant's claims of those cited, is that of Westerfeld et al v. New York Life Insurance Company, 129 Cal. 68, 58 P. 92, 61 P. 667. The original opinion in that case was written by Commissioner Britt, and concurred in by one other commissioner. The facts in that case were, briefly, as follows: Plaintiffs were executors of the last will of William Westerfield. The defendant was an insurance company. In 1890 the defendant issued to plaintiffs' testator a policy of insurance upon his life in the sum of $ 10,000. Thereafter negotiations were entered into by the insured with the agent of the company to exchange this policy for another one of the same amount on a cheaper plan. The proposed policy was delivered to the deceased with, it was claimed, the intention of having the earned cash value of the first policy applied on the premiums of the second one. Decedent was in possession of both policies at the time of his death. His executors demanded payment of the amount of the second policy, which was refused on the ground that the same never was in effect, that it had been delivered to the decedent for examination only, that he never accepted it or paid any premium thereon, and that the first policy had become void because of decedent's failure to pay the fifth annual premium, which had an exchange been effected as contemplated, and the new policy legally delivered and accepted, would have been covered by the earned value of such surrendered first policy. The executors were induced to deliver both policies to the company upon the payment of approximately one-fourth of the face value of the one sued on. After receiving this money plaintiff brought suit alleging that they were induced to accept the money and surrender the policy by the false and fraudulent representations of the defendant. Suit was brought on the second policy setting up these facts. Defendant answered admitting making the representations alleged by plaintiffs, denied their falsity, averred that they were true, and relied upon the force and effect of the release secured. It was also contended on the part of defendant, as in the case at bar, that the action could not be maintained without rescinding the contract or compromise, and restoring, or offering to restore, the money they had received as the fruits thereof. Trial was had, and plaintiffs were given judgment. The case was appealed, and under the decision of Commissioner Britt the judgment of the trial court was reversed, with the statement:
"Admitting that there is some conflict of authority, we are yet satisfied that the conclusion we have...
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