Unfried v. Baltimore & O.R. Co.

• Decision Date: 03 December 1890
• Citation: 12 S.E. 512,34 W.Va. 260
• Parties: UNFRIED v. BALTIMORE & O. R. Co.
• Court: West Virginia Supreme Court

12 S.E. 512

34 W.Va. 260

UNFRIED v. BALTIMORE & O. R. Co.

Supreme Court of Appeals of West Virginia.

December 3, 1890

Syllabus by the Court.

In an action for damages, where the verdict of the jury is so er roneous as to clearly indicate prejudice partiality, passion, or corruption in arriving at their conclusions, the defendant, on motion, is entitled to a new trial; and it is error in the court to allow the plaintiff to elect to take a less sum suggested by the court, when there is no data before the court by which said smaller sum could be rightly and definitely ascertained, but which is fixed by the discretion of the court, unaided by the evidence.

Error and supersedeas to circuit court, Ohio county.

H. M Russell, for plaintiff in error.

B. B Dovener and J. O. Pendleton, for defendant in error.

ENGLISH J.

On the 16th day of July, 1884, John Unfried instituted an action of trespass on the case against the Baltimore & Ohio Railroad Company, in the circuit court of Ohio county, claiming damages to the amount of $25,000 for injuries received while in the employ of said railroad company. On the 12th day of January, 1885, a demurrer was sustained to the plaintiff's declaration, and on his motion leave was granted him to amend his declaration, and the case was remanded to rules for that purpose. On the first Monday in March, 1885, an amended declaration was filed, and on the 14th day of April, 1885, the defendant, by its attorney, demurred to the plaintiff's amended declaration, and to each count thereof, and the plaintiff joined, and on the 18th day of September, 1885, the court overruled said demurrer; and thereupon the defendant pleaded not guilty, and in addition thereto the defendant filed four several pleas in writing, numbered, respectively, 2, 3, 4, and 5. The first of said pleas is, in effect, a plea of accord and satisfaction, alleging that the said plaintiff ought not to have or maintain his action against said defendant, because it says that, after the committing of the grievances in the plaintiff's declaration mentioned, and before the bringing of said suit, to-wit, on the 20th day of June, 1884, at the county of Ohio, the said defendant procured the Baltimore & Ohio Employes' Relief Association to pay to the said plaintiff, and the lastmentioned association then and there, on behalf of the said defendant, paid to the said plaintiff, the sum of $27, for and in full satisfaction and discharge of the said grievances in the said declaration mentioned; and which said sum of $27 he, the said plaintiff, then and there accepted and received of and from the said association in full satisfaction and discharge of the said grievances, and this the said defendant was ready to verify. Plea No. 3 alleges, in substance, that after the commission of the grievances in the plaintiff's declaration mentioned on the 20th day of June, 1884, the Baltimore & Ohio Employes' Relief Association paid to said plaintiff the sum of $27, for and in satisfaction of said grievances in the plaintiff's declaration mentioned, which said sum of $27 he, the said plaintiff, then and there accepted and received of and from the said association in full satisfaction and discharge of the said grievances, concluding with a verification. Plea No. 4 is in substance the same as No. 3, with the exception that It alleges that the defendant paid said plaintiff the sum of $27 in full satisfaction and discharge of the said grievances in the plaintiff's declaration mentioned, which sum the plaintiff accepted and received of and from said defendant in full satisfaction and discharge of said grievances, concluding with a verification; and plea No. 5 alleges that before the commencement of said suit, to-wit, on the 20th of June, 1884, at the said county of Ohio, the said plaintiff, by his certain writing of release sealed with his seal, the date where of is a certain day and year last aforesaid therein mentioned, to-wit, the day and year last afore-said, did release and forever discharge the said defendant from all claims and demands for damages by reason of the said grievances in said declaration mentioned, which he, the said plaintiff, then and there or might or could thereafter have against the said defendant, as by said writing or release, reference being had thereto, will fully appear, concluding with a verification, to which pleas the plaintiff replied generally on the 17th day of April, 1886; and on the 14th day of May, 1886, the plaintiff, by his attorneys, moved the court to be allowed to withdraw his general replication to the special pleas heretofore filed, and to file a special replication thereto in writing, which he then tendered; to which motion the defendant objection, and also objected to the filing of said special replication on the ground that the same was tendered too late, and also on the ground that it is insufficient in law; but the court overruled its objection, and allowed said replication to be filed, which was accordingly done, and the defendant excepted. Thereupon the defendant demurred to the said special replication, in which demurrer the plaintiff joined, and on the 8th day of January, 1887, the court set aside the order allowing said special replication to be filed, and sustained the objections of the defendant to the filing of the plaintiff's replication, and leave was given the plaintiff to file another special replication; and thereupon the plaintiff tendered another special replication marked "No. 2" to the defendant's four special pleas. To the filing of said special replication marked "No. 2" the defendant objected on the ground that the same was insufficient in law, and on a subsequent day said objection to the filing of plaintiff's special replication No. 2 was overruled, and said replication was ordered to be filed. The plaintiff, in said special replication No. 2, said that he ought not to be barred from having or maintaining his action because of anything alleged by the defendant in its four pleas numbered, respectively, 2, 3, 4, and 5, because he says that on the 20th day of June, 1884, at Wheeling, Ohio county, W.Va., he signed an instrument in writing which was substantially as follows, and to the following effect, to-wit:

"Wheeling, June 20th, 1884. Received of the Baltimore & Ohio Employes' Relief Association, by the hands of W. B. McClung, the sum of twenty-seven dollars, same being the full allowance as a member of the said association I am entitled to receive from its funds for the period commencing May 1st, 1884, and ending May 31st, 1884, by reason of injuries received whilst in the discharge of duty in the service of the B. & O. Railroad Company; and, in consideration of the receipt by me of the said sum of $27, I do hereby release and forever discharge the said company, and all other companies operating its roads, branches, and cars, from all claims and demands for damages, indemnity, or other form of compensation I now or may or can hereafter have against either of the aforesaid companies by reason of said injuries. I declare on honor that during the period above stated I have not been able, by reason of said injuries, to perform my accustomed labor, and have not done work of any kind for pay.

"JOHN X (hismark) UNFRIED.

"Witness: T. E. MULLIGAN."

Plaintiff says that at the time he signed the above writing he received the said sum of $27, and that the said sum of $27 and the said writing are the release, receipt, and sums of money set forth in the defendant's four several pleas aforesaid. The plaintiff further says that at the time he signed the said writing he was a German, unable to speak, write, or understand the English language, and that he signed the said writing in the belief that he was then and there receipting for the sum of $27 to which he was entitled as a member of said association, and did not know, and had no means of knowing, and was not informed by the said McClung, the said defendant, or any one for them, that he was waiving or relinquishing any right of action or claim for damages he then had against the defendant by reason of the injuries and grievances set forth in the plaintiff's declaration. On the contrary, the said McClung, then acting as the agent of the defendant, and the said defendant by its agents, then and there represented to the plaintiff that the said writing was merely a receipt, and contained nothing but a receipt for the said sum of $27, and said writing was so translated by said agents to him. The plaintiff charges that his signature to said writing was made by him under a mistake as to its purport. and was procured from him by said defendant and its agents by the foregoing false, fraudulent, and deceitful representations and concealments as to the contents, meaning, and intent of said writing then and there made to him by the said defendant and its agents, and this the plaintiff was ready to verify; wherefore he prays judgment, and that his damages by him sustained by reason of the grievances set forth in the declaration be adjudged him, etc.

On the 8th day of October, 1887, the jury, to whom the cause had been submitted, in answer to the following particular questions of fact which, on motion of the defendant, they were directed by the court before they retired, in addition to their general verdict, to find in writing, said: "(2) Could not the plaintiff, under the circumstances in which he was placed at the time of the injury, by the exercise of reasonable and ordinary care for his own protection have avoided the accident? No. (3) Was not the plaintiff negligent in placing himself in the position in which he was standing at the time when the injury occurred, instead of waiting in a safer place until the truck was ready to be removed? No. (4) Was the...