Thompson v. Kansas City Western Railway Co.
| Decision Date | 21 February 1910 |
| Citation | 125 S.W. 1190,142 Mo.App. 234 |
| Parties | GEORGE B. THOMPSON, Plaintiff in Error, v. KANSAS CITY WESTERN RAILWAY COMPANY, Defendant in Error |
| Court | Kansas Court of Appeals |
Error to Jackson Circuit Court.--Hon. James H. Slover, Judge.
Affirmed.
Charles R. Pence for plaintiff in error.
(1) The court erred in dismissing plaintiff's petition and rendering final judgment for defendant. Only the equitable issue of mutual mistake in the execution of the release was submitted to the court for determination. It was the plaintiff's right to have a jury trial of the remaining issues or of such other issues as might have been made by amended or additional pleadings. The court was not authorized to render final judgment in the cause, and the judgment is erroneous on the record. Russell v. Railroad, 154 Mo. 428; Cardwell v. Stuart, 92 Mo.App. 586; Roberts v. Lead Co., 95 Mo.App. 581. (2) The court erred in finding that the release was a valid and effectual release of the plaintiff's cause of action. The issue was whether it was subject to rescission on the ground of ignorance and mistake in its execution. That issue should have been decided in favor of the plaintiff on the evidence adduced. Adam's Equity (6 Am. Ed.), 188; 1 Story's Eq. Juris. (4 Ed.), secs. 140, 145, 155; Bispham's Equity (6 Ed.), secs. 190, 191, 469; Wald's Pollock on Contracts (3 Ed.), top page 592, 605, et seq.; 20 Am. and Eng. Ency. of Law (1 Ed.), p. 745; Blair v. Railroad, 89 Mo. 383; Cunningham v. Union C. and S. Co., 82 Mo.App. 607; Railroad v. Deashiell, 198 U.S. 521; Railroad v Artist, 60 F. Rep. 365; Great Northern v Fowler, 136 F. 118; Bliss v. Railroad, 160 Mass. 447; Lusted v. Railroad, 71 Wis. 391; Roberts v. Railroad, 1 Foster and Finlason's Rep. 460; Story v. Gammell, 94 N.W. 982; Taylor v. Godfrey, 59 S.E. 631.
Scarritt Scarritt & Jones for defendant in error.
This is a suit for damages alleged to have been sustained by plaintiff by reason of the negligence of the defendant while he was a passenger on its railroad.
The plaintiff alleges that he was injured in a collision which occurred on the night of September 14, 1905. He states that his injuries consisted of bruises upon his shoulder and shin and on his face under the left eye.
In about a week afterward plaintiff's claim agent called upon plaintiff at which time the plaintiff in consideration of the sum of thirty dollars, executed a paper releasing defendant from damages he had suffered or might suffer in the future on account of said collision.
Among other defenses defendant set up said release as a bar to plaintiff's right of recovery.
The plaintiff in reply to this plea of defendant recites: That at the time of the execution of said release he stated to the agent of defendant, that while he had received certain bruises in said collision he did not consider them sufficiently important to make any claim for damages therefor, and that he made no claim for them; but that he stated to the agent that his suit of clothes had been ruined by mud and water while he was attending to injured passengers and that he thought he ought to be compensated therefor; that by agreement the sum of thirty dollars was agreed upon as the value of said clothes and the agent delivered to him a check for that amount and requested plaintiff to sign a paper as evidence of the receipt of said sum and of a settlement of his claim, and that he signed the same. He asks for relief on the ground that he ought not to be bound by the terms of the release because he was in ignorance of the injury to the bones of his face at the time he signed said paper and that defendant's agent was likewise ignorant of that fact; and that he would not have signed the paper if he had been aware of his said injury, and that the release was signed by mutual mistake and ignorance of the parties, and he asks that it be set aside.
By agreement of the parties the issue raised on the plea in bar was submitted to the court. The finding was for the defendant and plaintiff's petition was dismissed. The plaintiff sued out his writ of error.
There are two questions raised by appeal: First that the court committed error in its finding, on the issue raised on the plea in bar; and second the court erred in dismissing his petition without a hearing on the merits.
In order to give a correct view of the case we refer to certain portions of the release, viz.:
To continue reading
Request your trial