State ex rel. Union Pac. Railroad Co. v. Bland

• Citation: 23 S.W.2d 1029
• Decision Date: 03 February 1930
• Docket Number: No. 29116.,29116.
• Parties: THE STATE EX REL. UNION PACIFIC RAILROAD COMPANY v. EWING C. BLAND ET AL., Judges of Kansas City Court of Appeals, and LEONARD ULMANN.
• Court: United States State Supreme Court of Missouri

23 S.W.2d 1029

THE STATE EX REL. UNION PACIFIC RAILROAD COMPANY v. EWING C. BLAND ET AL., Judges of Kansas City Court of Appeals, and LEONARD ULMANN.

No. 29116.

Supreme Court of Missouri, Division One.

February 3, 1930.

Certiorari.

RECORD QUASHED.

Watson, Gage & Ess for relator.

(1) The holding of respondent judges to the effect that the illiterate injured Yiokas was guilty of negligence as a matter of law under the circumstances given in the opinion of said respondents, is in direct conflict with controlling opinions and decisions of this court. Rau v. Robertson, 260 S.W. 751; Dyrssen v. Light & Power Co., 295 S.W. 117; Girard v. Car Wheel Co., 123 Mo. 358; Och v. Ry. Co., 130 Mo. 27; Metropolitan Paving Co. v. Inv. Co., 309 Mo. 638; Groff v. Longsdon, 239 S.W. 1087; Layson v. Cooper, 174 Mo. 211. (2) Respondent judges erred in ruling that the fact that the illiterate injured Yiokas did not have the instrument which he signed read or interpreted to him after the representation of the contents and effect thereof made to him by an agent of respondent Ulmann, constituted such negligence as a matter of law as to preclude the assertion of said misrepresentation and fraud as a defense to an action upon this instrument. The court in so holding failed and refused to follow the latest controlling decisions of this court, so that their opinion herein is in direct conflict with said controlling opinions and decisions. Authorities supra. (3) Respondent judges erred in ruling that instruction number two requested of the trial court by respondent Ulmann should have been given, because said holding is in direct conflict with the latest controlling decisions and opinions of this court. Authorities supra; Gideon v. Teed, 216 Mo. App. 324. Moreover, said instruction invades the province of the jury to pass upon the credibility of witnesses. To this extent it denies to relator his right to trial by jury on issues of fact in a case in which money alone is involved. Gannon v. Gas Light Co., 145 Mo. 502.

John C. Nipp and William G. Butts for respondent.

The holding of respondent judges to the effect that the injured Yiokas was guilty of negligence as a matter of law under the evidence, is not in conflict with controlling opinions and decisions of this court. A party signing a contract cannot avoid the obligation by denying he knew its contents or expressing the real agreement between the parties, unless some artifice or fraud was used to induce him to sign it and is bound unless tricked into signing it from a fraudulent motive and without carelessness on his part. In the case at bar a peremptory instruction should have been given for the plaintiff. Manufacturing & Importing Co. v. Carle, 116 Mo. App. 590; Bank v. Hall, 129 Mo. App. 291; Breeders Co. v. Wright, 134 Mo. App. 720; Crim v. Crim, 162 Mo. 552; Book Co. v. Anderson, 179 Mo. App. 636; Deming Inv. Co. v. Wasson, 192 S.W. 765; Woosley v. Wells, 281 S.W. 701.

ELLISON, C.

Certiorari to the Kansas City Court of Appeals in Ulmann v. Union Pacific Railroad Company on the second appeal of that case from the Circuit Court of Jackson County. The first appeal is reported in 211 S.W. 910. The action was to enforce an attorney's lien based on a written contract of employment executed by one Peter Yiokas engaging the services of the plaintiff Ulmann as attorney in the prosecution of a personal injury claim against the relator, the Union Pacific Railroad Company. Yiokas settled with the railroad company for $200 and Ulmann sued the latter for his fee.

The railroad company contended the contract was void for fraud practiced on Yiokas by the plaintiff Ulmann and others in its procurement. On both trials in the circuit court there was a verdict for the defendant. But the last opinion of the appellate court holds the trial court erred in refusing to give an instruction declaring the defendant bound by Yiokas' contract, on the ground that he was guilty of negligence as a matter of law in failing to have the contract read to him or fully explained before he signed it. The relator asserts this holding is in conflict with the last controlling decisions of this court on the question, including Dyrssen v. Union E.L. & P. Co., 317 Mo. 221, 295 S.W. 116, and Rau v. Robertson (Mo.), 260 S.W. 751. The opinion of the Kansas City Court of Appeals, omitting the introductory and concluding paragraphs, is as follows:

"The facts show that on February 29, 1914, one Peter Yiokas, a Greek, was injured while working for the defendant, and on June 10, 1914, defendant paid him the sum of $200 in settlement of his claim for damages on account of said injury. On the 9th day of March, 1914, Yiokas signed a contract with plaintiff, an attorney at law of Kansas City, Missouri, which recited that Yiokas employed plaintiff to sue upon or settle his cause of action against the defendant arising on account of the injury sustained by him as aforesaid and agreed to pay plaintiff the sum of fifty per cent of any money received as the result of suit or by compromise or settlement. Thereafter on May 29, 1914, plaintiff caused notice of his attorney's lien to be served upon the defendant. No suit was ever filed by plaintiff.

"This cause arose in a justice court. No pleading was filed by the defendant, but the defense made at the trial in the circuit court was that the contract, which purported to show the employment by Yiokas of plaintiff, was procured by plaintiff through fraud; that Yiokas could not read the English language and when the contract was presented to him it was represented to him by plaintiff's agents that it was merely a paper upon which he could procure a settlement from the defendant and that it was not a contract obligating Yiokas to pay plaintiff anything in case of settlement.

"Plaintiff testified that Yiokas in company with two other Greeks, Mitchell and Bahas, or Botulas, came to his office and employed him to represent Yiokas in the matter of prosecuting the latter's claim against the defendant, and at the time entered into the contract of employment in question. His testimony was corroborated by the testimony of Mitchell, a Greek, and one Cohen, who testified that they were present at the signing of the contract. Mitchell testified that the contract was explained to Yiokas before he signed it. There is a conflict in the testimony as to whether defendant's claim agent told Yiokas, when it settled with him, that it would be required to pay plaintiff the same sum that it paid Yiokas. There was testimony Yiokas wanted $600 in settlement but the claim agent told him that he could not pay so much, because defendant would be required to pay Yiokas' lawyer. According to the claim agent, Yiokas denied that he had employed a lawyer.

"The deposition of Yiokas was introduced in evidence. In this deposition Yiokas stated that his injuries consisted of an injury to his left arm; that while he was in a hospital in Kansas City, recovering from his injuries, two Greeks, Bahas and Mitchell, fellow countrymen of his, accompanied by a lawyer, called at the hospital and questioned him regarding his injuries; that he explained to them the facts surrounding the accident. He testified that he was not told the name of the lawyer who accompanied them and did not know who he was; that he knew Bahas well, the two having come from the same town in Greece; that he had met Bahas in this country but one time before his injury; that he again met Bahas shortly after he was injured when Bahas came to see him at the hospital; that these two occasions were the only times he had seen Bahas in this country before the day the contract purporting to employ plaintiff was signed; that he at no time told Bahas to procure a lawyer; that the conversation at the hospital upon the day on which the contract was signed, was carried on between Yiokas and the two Greeks in the Greek language. The evidence shows that plaintiff did not understand Greek.

"Yiokas further testified that he signed a paper, which the evidence shows was the contract of employment, at the solicitation of plaintiff and the two Greeks; he was asked:

"`Q. Did you know what was in that paper when you signed it? A. I don't know. He never told me. He told me to sign that paper. They told me to sign this paper and that if I settled with the company and got anything and if I wanted to I might give them something... .

"`Q. Did they tell you whether or not you were agreeing in that contract to pay Mr. Ulmann or anyone else a certain percentage out of anything you might recover from the Union Pacific Railway Company in this case? A. No. They never told me that. If they tell me that I never would sign it.'

"He further testified that he did not pay plaintiff, Mitchell or Bahas any filing fee for the suit; that he was never in plaintiff's office. He was asked —

"`Q. Did you sign a paper? A. I signed papers; I don't know if that was a contract or not.

"`Q. What did they tell you about it? A. You just sign this paper and when you come out of the hospital you can give it to the company and settle.

"`Q. The first time that Mr. Bahas came to see you, did he talk to you about a lawyer? A. No, sir.

"`Q. Didn't say anything? A. No.

"`Q. What did he say to you the second time he came? A. The second time, do you want me to tell you again? He came with the rest of them and fetched me a paper and he says, "You sign this paper."

"`Q. Who handed you the paper to sign? A. The attorney has it in his hands and then he handed it over to Mitchell and Mitchell handed it to me.

"`Q. What did he say when he handed it to you? A. I tell you again that he told me to sign, that is all.

"`Q. Why did you sign it? A. I signed it because he told me as soon as I came out of the hospital I go down to the company and settle it.

"`Q. Did he tell you this was the company's lawyer? A. No, sir.

"`Q. What did you think that paper was? A. I don't know... .

"`Q. You don't know what you thought it...