Tate v. Wabash R. Co.

• Decision Date: 04 May 1908
• Parties: TATE v. WABASH R. CO.
• Court: Missouri Court of Appeals

110 S.W. 622

131 Mo. App. 107

TATE v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

May 4, 1908.

Rehearing Denied May 25, 1908.

1. PLEADING — AFFIRMATIVE ALLEGATIONS — REPLY.

Plaintiff's failure to deny under oath in a reply the execution of a written contract pleaded in the answer as a defense was effective to admit the execution of such instrument.

2. SAME — EXHIBITS.

While an exhibit attached to a pleading is no part thereof and until introduced in evidence is not to be considered before the court, it may nevertheless be looked to as a matter of convenience for a statement of its terms, where all the contractual elements embodied in the instrument are sufficiently stated in the answer.

3. EVIDENCE — PAROL EVIDENCE — WRITTEN CONTRACT — RELEASE — CONSIDERATION.

Plaintiff, having been injured in a railroad wreck, executed a release reciting that she thereby agreed to accept the sum of $5,800 in full satisfaction and discharge of all claims for damages against defendant on account of such injuries. Held, that the statement of the consideration was contractual, and not a mere recital of a fact, and that plaintiff was not therefore entitled to vary the same by parol evidence that defendant also agreed to furnish her transportation over its lines free for life, which it thereafter refused to do.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by Ella Tate against the Wabash Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

John T. Barker, for appellant. Guthrie & Franklin, for respondent.

JOHNSON, J.

Plaintiff alleges in her petition that on September 6, 1904, she was injured while a passenger on one of defendant's trains by the derailment of the coach in which she was riding; that in October afterward she entered into a contract with defendant by the terms of which, in part consideration for and release and satisfaction of her claim for damages, defendant agreed to provide her and her family during her natural life with free transportation over its railroad system; that defendant did furnish such transportation until July, 1907, when it notified plaintiff of its intention not to comply with the agreement in the future; and that it thereafter refused the request of plaintiff for such free transportation. The amount of the damage sustained in consequence of the discontinuance of the service is placed at $4,000, for which sum judgment is prayed. The answer pleads a written contract of settlement duly executed by plaintiff, which by its terms provided for the full satisfaction of plaintiff's demand on the sole consideration of the payment of $5,800 in money. The reply is a general denial. At the trial defendant objected to the introduction of any evidence on the grounds (1) that the petition does not state a cause of action; and (2) because the pleadings show an absolute and conclusive adjustment and final settlement of the matter in dispute between the plaintiff and defendant, that the answer and release pleaded is a valid, binding, and complete release and satisfaction of the entire matter in dispute or involved in this suit, and that the release and answer is traversed by no competent reply. The objection was sustained. Plaintiff took a nonsuit, with leave to move to set the same aside, and in due course of procedure brought the case here by appeal.

We think the effect of plaintiff's failure to deny under oath in her reply the execution of the written contract pleaded in the answer was to admit the execution of that instrument. The contract is attached to the answer as an exhibit, and, while it is true, as plaintiff contends, that an exhibit attached to a pleading is no part of the pleading, and until introduced in evidence should not be considered as being before the court, still we find that all of the contractual elements embodied in the instrument are sufficiently stated in the answer for us to refer as a matter of convenience to the instrument itself for a clear and concise statement of its terms. The contract is as follows: "I hereby agree to accept, and do accept, of the Wabash Railroad Company, the sum of five thousand eight hundred dollars, as evidenced by my signature to the receipt annexed, in full satisfaction, release and discharge of all claims for damages that I now have, or may hereafter have against said company on account of personal injuries received by me in wreck of train No. 20, near Warrenton, Mo., also loss of time for services, * * * on the lines of the Wabash railroad, on or about the 6th day of September, A. D. 1904, and also in full of all claims whatsoever for loss or damage to personal property in consequence of said accident. And it is further expressly agreed that in case suit has been instituted for said claim said suit shall be dismissed at the cost of no suit and said company forever discharged from all liability growing out of said injuries. $5,800.00. Received Jan. 5th, 1905, from the Wabash Railroad Company, the sum of five thousand eight hundred dollars, in full for the above settlement as per agreement recited. Ella Tate. [Seal.] J. T. Tate. [Seal.]" The object of the action is not to set aside the contract of settlement on account of duress, fraud, or mistake, but to enforce a parol agreement alleged to have been made contemporaneously with the agreement reduced to writing and signed by the plaintiff. It is the contention of plaintiff...