The Missouri Pacific Railway Company v. Lovelace

• Decision Date: 11 July 1896
• Docket Number: 8720
• Citation: 57 Kan. 195,45 P. 590
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. EFFIE C. LOVELACE
• Court: Kansas Supreme Court

45 P. 590

57 Kan. 195

THE MISSOURI PACIFIC RAILWAY COMPANY v. EFFIE C. LOVELACE

No. 8720

Supreme Court of Kansas

July 11, 1896

Decided July, 1896.

Error from Johnson District Court Hon. John T. Burris, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded for a new trial.

Waggener Horton & Orr, for plaintiff in error.

Sherry & Hughes, and S. T. Seaton, for defendant in error.

JOHNSTON J. ALLEN, J., concurring. MARTIN, C. J., having been of counsel, did not sit.

OPINION

JOHNSTON, J.

A passenger train of the Missouri Pacific Railway Company, running through the State of Missouri, was derailed June 28, 1890, and, as a result, Effie C. Lovelace, who was a passenger thereon, received some injuries. She came at once to her home in Kansas City, Mo., and, July 1, 1890, after some negotiations, signed a paper in which it was stipulated that, for a consideration of $ 100, she released the Company from all claims on account of her injuries. Her husband, who assisted in the negotiations, also joined her in signing the paper. In January, 1891, she was a witness in behalf of the Railway Company in a case on trial in Missouri; and it is claimed that when her witness fees were paid, sufficient money was added on account of the injuries previously received to make the amount $ 20. She then signed a release or receipt, of which the following is a copy:

"KANSAS CITY, January 16, 1891.

"In consideration of the sum of twenty dollars to me paid by the Mo. Pac. Ry. Co., I hereby assign to said Co., my fees in the case of Emma Tyler v. said Co., which amount to $ 6.25; and also release to said Co. any and all claims I have against it for injuries received by me in accident which occurred on June 28, 1890. MRS. EFFIE C. LOVELACE.

Attest: H. C. MCDOUGAL."

For the same consideration, and on the same day, her husband executed a paper releasing the Company from any and all claims he might have against the Company on account of injuries to his wife caused by the accident above mentioned.

July 23, 1891, she came into Kansas and instituted an action in the District Court of Johnson County against the Company, alleging that the derailment and injury were caused by the negligence of the Company, and that, in consequence of the negligence, she had sustained injuries in the sum of $ 10,000. In its answer, the Railway Company denied negligence, averred that the claim for the injury had been compromised and adjusted, and set forth the releases heretofore mentioned. In reply to the answer the plaintiff below alleged that the release of July 1, 1890, was obtained while she was suffering great bodily pain and mental anguish, and when she was wholly incapacitated for the transaction of any business; and, further, that her signature thereto was obtained for the purpose of cheating and defrauding her. In regard to the release or receipt dated January 16, 1891, she alleged that Elijah Robinson, the attorney of the Company, represented to her that the release was simply a receipt for witness fees in the case of Tyler versus the Railway Company, and that, relying upon his representation, she signed the release, believing it was simply a receipt for such witness fees. The trial resulted in her favor, the jury awarding her damages in the sum of $ 4,500.

It is claimed that error was committed by the trial court in the admission of what is termed expert testimony. Doctor Lemon was called as an expert, and stated that he had never met the plaintiff until the day before the trial, when he made an examination of her physical condition and discovered that she was suffering from womb and uterine troubles. Among others, the following questions were asked:

"Doctor, what would you say from the condition in which you found plaintiff at the time you examined her, if the injuries resulted from a railway accident on the 28th of June, 1890, as to what her condition of mind would naturally be on the first day of July, following?"

Over objections he gave the following answer:

"I can only give an opinion in a general way. The majority of cases in that condition, at so short a time after the injury, with an injury of that character, would be in that condition of mind which we recognize as hysteria, and physicians would consider a patient "

Here counsel interrupted and objected to what physicians would consider, when the Court remarked to the witness:

"What do you consider?"

The witness then gave this further answer:

"My own opinion would be that any lady suffering with hysteria would be unfit for the transaction of business."

A motion to strike out the answer was refused. He was then asked to give his definition of hysteria, and replied as follows:

"Hysteria is that effect upon the nervous system which produces, by reflex action, an effect upon the brain of vacillation, hallucination and imaginations of different characters, and is the result of irritation of the uterine walls. There is such a thing as hysteria without uterine disease."

This testimony was clearly objectionable and prejudicial. One of the principal contentions in the case related to the mental condition of the plaintiff at the time the release was signed, July 1, 1890. She claimed that, by reason of the pain she was suffering and of the medicine administered to alleviate it, she was incapacitated to transact business, and had no recollection of having signed the paper nor of anything that occurred on that day. A great deal of evidence was introduced to the effect that she was conscious and composed, and was then in the full enjoyment of her mental powers. Doctor Lemon had not seen Mrs. Lovelace at the time the release was signed, nor for more than 18 months afterward. It was competent for him to testify in regard to her condition when the examination was made and to give his opinion, if such testimony was necessary, whether her condition at that time and the pain she was suffering, were the result of the injuries received when the train was derailed. The opinion of witnesses competent to speak might have been likewise taken as to the permanency of the injury. The witness was not informed as to the condition of Mrs Lovelace at the time when her capacity was in question; his testimony was not based on that given by others acquainted with her then physical or mental condition; nor were the facts relating to her condition and as to what she said and did at the time, laid before...