State ex rel. Order of United Commercial Travelers of America v. Shain

• Citation: 98 S.W.2d 597,339 Mo. 903
• Parties: State of Missouri at the relation of the Order of United Commercial Travelers of America, a Corporation, Petitioner, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Decision Date: 17 November 1936
• Court: United States State Supreme Court of Missouri

98 S.W.2d 597

339 Mo. 903

State of Missouri at the relation of the Order of United Commercial Travelers of America, a Corporation, Petitioner, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

November 17, 1936

Opinion of Court of Appeals quashed.

Montgomery Martin & Montgomery for petitioner.

(1) In holding that the facts in the case under consideration, as recited by the Court of Appeals in its opinion, were sufficient to raise the issue of duress in the procurement of the release in question, the Kansas City Court of Appeals failed and refused to follow, and its opinion and decision is in direct conflict with, prior controlling decisions of this court. McCormick v. St. Louis, 166 Mo. 332, 65 S.W 1038; Wood v. Kansas City Home Tel. Co., 223 Mo 557, 123 S.W. 12; McCoy v. McMahon Constr. Co., 216 S.W. 770. (2) In holding that the release in question might be avoided on the ground of duress in its procurement without a prior tender back of the consideration paid, the Kansas City Court of Appeals failed and refused to follow, and its opinion and decision is in direct conflict with, prior controlling decisions of this court. Wood v. Kansas City Home Tel. Co., 123 S.W. 6; McCoy v. McMahon Constr. Co., 216 S.W. 770; Bushnell v. Loomis, 234 Mo. 382, 137 S.W. 257, 36 L. R. A. (N. S.) 1029.

Fred F. Wesner, F. M. Ross and E. W. Jones for respondents.

(1) The Court of Appeals in its ruling on the question of duress applied the law of modern duress, as defined in the controlling decisions of this court, to the facts of this case; and did not announce a conclusion of law contrary to the last previous ruling of this court on the same or a similar state of facts. Miss. Valley Trust Co. v. Begley, 252 S.W. 76; Lappin v. Crawford, 221 Mo. 380, 120 S.W. 605. (2) Irrespective of the question of duress in this case, the holding of the Kansas City Court of Appeals in its opinion that, upon the facts herein, it was not necessary for plaintiff to tender back the consideration paid for the release, does not conflict with the ruling decisions of this court on the same or similar state of facts, for the reason that plaintiff's claim is founded upon a liquidated demand and under the facts found by the opinion the payment of a sum less than the whole amount did not discharge the claim as there was no consideration. Riley v. Kershaw, 52 Mo. 226; Logan v. Fidelity Cas. Co., 146 Mo. 114; Winter v. Cable Co., 160 Mo. 159; Enright v. Schaden, 242 S.W. 89.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Relator seeks to quash the opinion and record of the Kansas City Court of Appeals in the case of Jackson v. Order of United Commercial Travelers of America, reported in 89 S.W.2d 536. It will be noted that Judge Bland dissented. Relator alleges that the opinion of respondents is in conflict with the controlling opinions of this court. It is asserted that respondents' opinion, in holding that there was sufficient evidence of duress to avoid a release in compromising a claim, is in conflict with opinions of this court in the cases of: McCormick v. City of St. Louis, 166 Mo. 315, l. c. 332, 65 S.W. 1038; Wood v. Kansas City Home Telephone Co., 223 Mo. 537, l. c. 557, 123 S.W. 6, l. c. 12; McCoy v. James T. McMahon Construction Company (Mo.), 216 S.W. 770. It is also asserted that respondents' opinion, holding that the release in question might be avoided by Jackson without tendering back the consideration received, is in conflict with the following decisions of this court: Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S.W. 6; McCoy v. James B. McMahon Construction Co. (Mo.), 216 S.W. 770; Bushnell v. Loomis, 234 Mo. l. c. 381, 382, 137 S.W. 257, 36 L. R. A. (N. S.) 1029.

Jackson, the plaintiff in that case, sued relator, insurance company, on a policy of insurance covering total disability caused by accident. The issues tried in the trial court, insofar as necessary for the purpose of this case, were stated by the Court of Appeals as follows:

"The plaintiff duly avers compliance with all terms of the contract and makes claim as entitled to benefits of $ 25 per week for a term of 104 weeks by reason of bodily injury as a result of and effected through external, violent, and accidental means occasioned alone and independent of all other causes.

"The defendant, answering plaintiff's petition, pleaded a full settlement of all claims arising under the policy and pleaded payment of $ 600 under said settlement and pleaded a full acceptance and full acquittance on the part of plaintiff.

"Defendant further makes claim that plaintiff's condition is due to cerebral hemorrhage and not to accident alone, and sets forth provisions of the Constitution and by-laws effective on the date of the alleged accident, to-wit, May 1, 1933, which are alleged as sustaining defendant's claim of nonliability. Defendant also denies liability based upon failure of notice.

"The plaintiff, in reply, makes claim that defendant is estopped, by reason of its conduct in investigating and making partial payment, to plead the provision of by-laws and Constitution concerning written notice of the accident forming basis for plaintiff's claim. Plaintiff further denies allegations as to compromise settlement and acquittance and pleaded further that if any instrument purporting to a compromise settlement did exist, that same were wrongfully procured by fraud, misrepresentation, and against the will and voluntary consent of plaintiff by reason of threats and deceitful representations made by defendant and its agents.

"In other words, the elements of modern duress are pleaded and the reply is subscribed and sworn to by plaintiff.

"Trial was had before a jury. Verdict was for the plaintiff in the sum of $ 2000. Judgment was entered in conformity with the verdict, and the defendant duly appealed."

The opinion, dealing with the questions before us, contains the following conclusions of fact and law:

"There is evidence shown to the effect that plaintiff did not fully regain control of his mental faculties for a period of over thirty days after the accident. We conclude that the evidence, when taken in its most favorable aspect to him, is sufficient to sustain plaintiff's position on the question of notice. . . .

"We conclude that the evidence in this case raises a question of fact as to whether the plaintiff's injury was caused or contributed to by cerebral hemorrhage.

"We next give consideration to subtopic 3, supra. There is no doubt but what if liability attached to defendant it stood liable for $ 2600.

"The defendant's statement to the effect that a genuine bona fide dispute existed does not correspond to the agent's action in the premises nor to the words used by him. Defendant's position is to the effect that liability is denied. The record is replete with actions and conduct on the part of defendant's agent, from which it may be inferred that he did consider the company liable and was disturbing the quiet of a sick and weakened man in an endeavor to get the liability reduced.

"We conclude that what was said in Harms v. Fidelity & Casualty Co., 172 Mo.App. 241, 157 S.W. 1046, has application herein.

"As to the valuable consideration given and accepted and as to the question of restoration of statu quo as prerequisite to bringing suit, the general doctrine urged by defendant concerning necessity of restoring to statu quo, where a voidable contract has been obtained by fraud, is an accredited doctrine in Missouri and is well defined in Metropolitan Paving Co. v Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815, l. c. 819.

"A different rule than the above comes into consideration, where fraud or duress enters into procurement of a release. In such a case the tender back of the consideration is not necessary. [Hannah v. Butts, 222 Mo.App. 1098, 14 S.W.2d 31.]

"To a full consideration of the above question, a consideration of defendant's subtopic four is necessary.

"The plaintiff on the issue of compromise settlement makes claim of duress.

"It appears that defendant's agent secured what defendant claims as a compromise settlement, whereby it paid the plaintiff $ 600, and wherein plaintiff executed documents in full acquittance of all claims and received the money and has made no tender of same back to defendant.

"The common-law doctrine of duress is in force in Missouri as modified by the decisions of our courts, and, as so modified, duress includes any degree of constraint which is sufficient to affect the mind of a person of ordinary firmness, and includes the condition of the mind as affected by the wrongful conduct of another which renders the person incompetent to contract with the exercise of his will power.

"As the question now exists, duress is a question of fact in each particular case. [C. J., vol. 13, page 396, par. 310; Wood v. Kansas City Home Telephone Co., 223 Mo. 537, 123 S.W. 6.]

"There is evidence in this case to the effect that defendant's agent visited plaintiff, while suffering from his injury, and was weak, sick, and nervous, and that defendant's agent disturbed plaintiff and told plaintiff that he had not given notice in the required time and was out. Further, that the agent told plaintiff that he had no claim and could not find a jury in Missouri that would give him anything.

"In the course of plaintiff's testimony, the following questions are shown as asked and answered:

"'Q. What did he say he would pay you? A. He told me he would pay me six hundred dollars.

"'Q. What did he say about that? A. He said I could either take six hundred dollars or nothing at all rather than go in court. He said I didn't have anything in cour...