State ex rel. Brown v. Trimble

• Decision Date: 30 December 1929
• Docket Number: 29533
• Citation: 23 S.W.2d 162,324 Mo. 353
• Parties: The State ex rel. Edna Mae Brown v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

23 S.W.2d 162

324 Mo. 353

The State ex rel. Edna Mae Brown v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 29533

Supreme Court of Missouri

December 30, 1929

Opinion and judgment quashed.

Virgil Yates and McAllister, Humphrey, Pew & Broaddus for relator.

(1) Respondents erred and refused to follow the controlling decision of this court in the case of Rau v Robertson, 260 S.W. 755, where this court held, upon a similar state of facts, that whether a party's signature was obtained to a release, which she did not intend to execute, through false representations, was a question for the jury. (2) Respondents in holding that the demurrer should have been sustained erred and refused to follow the controlling decision of this court in the case of State ex rel. Gordon v. Trimble, 318 Mo. 348, 300 S.W. 475 re-announcing the rule that on a demurrer to the evidence defendant's testimony is considered false and plaintiff's testimony true, together with every reasonable inference that may legitimately be drawn therefrom. (3) Respondents in holding that the release was valid erred and refused to follow the controlling decisions of this court holding that a contract in order to be binding must be based upon a consideration. Och v. Ry. Co., 130 Mo. 42; Johnson v. Grayson, 230 Mo. 399. (4) Respondents' opinion is in conflict with the controlling decision of this court in the case of Dyrssen v. Power Co., 317 Mo. 227, 295 S.W. 116, holding that an actual misreading of a paper purporting to contain a contract is a fraud available to the party so misled, where it can be reasonably inferred he is induced to rely on the reading.

Cowgill & Popham for respondents.

(1) The conclusive finding of respondents on the facts is that plaintiff relied merely on verbal statements in executing the release. (2) The admission of plaintiff in her reply is to the same effect, and is conclusive and binding upon her. Wrench v. Robertson, 175 S.W. 590; Otrich v Railroad, 134 S.W. 670. (3) Under the law of certiorari the reply and its admissions may be considered by this court, and the findings of fact by respondents are final here. State v. Trimble, 9 S.W.2d 624. (4) The reply stated no facts in legal avoidance of the releases, and the motions for judgment and the demurrers were good, and reversal was inevitable at all events. Dyrssen v. Power Co., 295 S.W. 116. (5) The release and draft purport due consideration on their face. The question of consideration is uninvolved in the legal issue here, but if it were, the point has been decided against relator. Strode v. Transit Co., 95 S.W. 851. (6) Under her own pleadings and her own evidence and under the facts as bindingly found by respondents, plaintiff was negligent in law, and respondents followed the latest holdings of this court and the modern trend of authority in so holding. Dyrssen v. Power Co., 295 S.W. 116; Anderson v. Drug Co., 130 S.W. 135; Hall v. Railway, 209 S.W. 582; Bank v. Hall, 108 S.W. 633; Green v. Higham, 161 Mo. 337; 6 Am. & Eng. Ency. Law (2 Ed.) 703; 1 Parsons on Contracts (2 Ed.) 357.

OPINION

Ragland, J.

Certiorari. Relator seeks to have quashed, on the ground of conflict of decision, the opinion and judgment of the Kansas City Court of Appeals in the case of Edna Mae Brown, respondent, v. Adams Transfer & Storage Company, a corporation, appellant, lately pending before that court on appeal from the Circuit Court of Jackson County. The opinion follows:

"This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3,000, and defendant has appealed.

"Plaintiff was injured on December 2, 1925, while she, together with her aunt, mother and two small brothers, was riding in a five-passenger touring car driven by its owner, one Dunlap, a friend and boarder at the mother's house. Dunlap was driving his car westward on Independence Road, in Kansas City, about four o'clock P. M. of the day in question. About three blocks west of Sheffield in the eastern part of Kansas City, Independence Road passes through a subway under railroad tracks. While Dunlap was making the required left turn after his car had emerged from under the subway, a truck belonging to the defendant, traveling east on Independence Road and in the act of entering the subway, struck Dunlap's car near its left front door. The door and seat on the left side of Dunlap's car were smashed and damaged, but he drove away the car on its own power. Plaintiff was seated on the front seat at the right of the driver. The testimony in her behalf tends to show that she was thrown against the windshield and down and between the seat and dashboard of the car in which she was riding, and suffered the injuries of which she complains.

"The answer consists of a general denial and a plea of contributory negligence on the part of plaintiff and the driver of the car; it also pleaded the following release:

"'Release.

"'Know All Men by These Presents:

"'That we, Edna Brown, May Brown, Katherine Gerish and E. W. Dunlap, for the sole consideration of eighty-five & no/100 dollars, to us in hand paid by The Adams Transfer Company, have released and discharged, and by these presents do forever, their heirs, executors, administrators and assigns, release and forever discharge the same Adams Transfer Company of and from all claims, demands, damages, actions, or causes of action on account of personal injuries and property damage to us sustained on or about December 2, 1925, caused by collision with one of the trucks of the Adams Transfer Company and car in which we were riding which was owned and driven by the said E. W. Dunlap in the city of Kansas City, Missouri, and of and from all claims or demands whatsoever at law or in equity, which we, or our heirs, executors, administrators, or assigns can, shall or may have by reason of any matter, cause or thing whatsoever prior to the date hereof.

"'In witness whereof, we have hereunto set our hands at Kansas City, Missouri, this 7th day of December, 1925.

"'In the Presence of

"'R. W. Curran.

"'Miss Edna Brown,

May Brown,

Katherine Gerrish,

E. W. Dunlap.'

"Defendant further alleges that upon the execution of said release and full acquittance of defendant, an additional and further release in the nature of a draft covering said consideration was accepted and indorsed and cashed by plaintiff, same reading and being as follows:

"'At sight pay to the order of Edna Brown, May Brown, Katherine Gerrish and E. W. Dunlap, Eighty-five Dollars.

"'R. W. Curran.

"'Payable through Fidelity National Bank and Trust Company, Kansas City, Mo.

"'In final and full settlement of all claims, against Adams Transfer Co. resulting from auto collision on or about December 2, 1925.'

"Defendant alleges that by reason of the execution of the aforesaid releases and the full and final compromise and settlement of her claims so made by her with defendant, she is without right to maintain this action and defendant pleads said settlement and releases as a bar to the alleged cause of action herein.

"The reply consists of a general denial of new matters set up in its answer; that the agents of the insurance company, which carried liability insurance on defendant's truck, settled with Dunlap for the damages to his car and informed plaintiff that before Dunlap could be paid such damages it was necessary for her to come to the office of the insurance company with Dunlap and sign papers for Dunlap as a witness that plaintiff went to said office of the insurance company and the agent of the company induced her '. . . to sign said purported release and draft set up in defendant's answer, by falsely and fraudulently representing to her that the same related solely to the damage to said Dunlap's car; that she did not bind herself in any way or relinquish any of her rights; that plaintiff thought and understood from said insurance agent's reading of the papers and his statements and representations in reference thereto that she was signing as a witness to the receipt of the money to be paid to said Dunlap; that plaintiff relied upon the statements and representations of said insurance agent as to the contents and nature of the papers she signed; that she is ignorant and illiterate and of no business experience whatever; that said agent well knew that no part of said money was to go to plaintiff and that in truth and in fact no portion of the same was received by her; that it was to be paid to Dunlap for the damages done to his car; that in so far as this plaintiff is concerned, said purported releases were without consideration and void and of no effect.'

"Plaintiff testified that Dunlap took her, her aunt and mother to the office of the insurance company, explaining to them that it was necessary for her to sign papers as a witness in order for him to get pay for damages to his car; that all of them went into the office and found there two men representing the company; that Dunlap and the two men told the ladies that they desired them to sign as witnesses some papers that the two men had there; that they said that this was a settlement or a release of Mr. Dunlap to the company for damages to his car; that --

"'Q. Did he read these papers to you? A. He read -- he pretended to. Any way he had the papers in front of him.

"'Q. All right, go ahead. A. He said, "These papers -- this paper is what I want you to sign for this property damage. You want to sign a release for Mr. Dunlap's car, and this is what this is for. You just put your signature down."

"'Q. He mentioned Mr. Dunlap's name in reading this, did he? A. Yes.

"'Q. Did he mention Mr. Dunlap's property damage in reading it to you, the damage to the car? A. You mean how much he got...