Wessel v. William Waltke & Co.

• Decision Date: 30 December 1916
• Citation: 190 S.W. 628,196 Mo.App. 582
• Parties: L. H. WESSEL, Respondent v. WILLIAM WALTKE & COMPANY, Appellant
• Court: Missouri Court of Appeals

190 S.W. 628

196 Mo.App. 582

L. H. WESSEL, Respondent v. WILLIAM WALTKE & COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 30, 1916

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillan Judge.

REVERSED.

Judgment reversed.

Percy Werner and Leigh C. Turner for appellant.

(1) The reply does not state facts sufficient to constitute an avoidance of, or defense to, the covenant not to sue which is set up in the answer, and the trial court erred in refusing to sustain objection to the introduction of any evidence in the case and in refusing to direct a verdict for the defendant. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388. (2) The failure of the plaintiff to disaffirm or repudiate the covenant not to sue, and to tender the amount received thereunder, prior to the institution of the suit bars recovery therein. Reid v. St. Louis & S. F. R Co., 187 S.W. 15; Retzer v. Dold Packing Co., 58 App. 264; Jarrett v. Morton, 44 Mo. 275; Estes v. Reynolds, 75 Mo. 163; Girard v. St. Louis Car Wheel Co., 123 Mo. 358; Och v. Railroad, 130 Mo. 27; Putnam v. Boyer, 173 Mo. 398; Althoff v. Transit Co., 204 Mo. 166, 171; Morgan County Coal Co. v. Halderman, 254 Mo. 596, 650; Carroll v. United Ry's Co., 157 Mo.App. 247; Whitewell v. Aurora, 139 Mo.App. 597; Lomax v. Electric R. Co., 119 Mo.App. 192; State ex rel v. Stuart, 111 Mo.App. 478, 493; Hancock v. Blackwell, 139 Mo. 440, 453. (3) There was no allegation or evidence of any fraudulent misrepresentation of facts which would warrant any court in setting aside, or allowing a jury to override, the covenant not to sue presented as a defense to this action. The mere expression of an opinion is no ground for setting aside any instrument, whether the opinion is correct or not. Magnuson v. Casualty Co., 125 Mo.App. 206; Carroll v. United R'ys Co., 157 Mo.App. 249. When the instrument admittedly contains what plaintiff understood substantially he was asked to agree to, it is immaterial that he failed to read it or have it read to him, or that he did not "fully understand" its contents. Reid v. St. Louis & S. F. R. Co., supra. (4) On plaintiff's own admissions and the uncontradicted facts in evidence, plaintiff affirmed his contract not to sue and cannot now be heard to repudiate it. (5) The release or covenant not to sue was procured by an officer of the court, to-wit, a reputable member of the bar of the city of St. Louis and acting as such. There is no evidence here which would warrant a court in submitting to a jury whether in his attempt to "purchase peace" for the defendant, he was guilty of fraud.

Fish & Fish and Crigler & Frank for respondents.

(1) When a release or purchase of peace has been obtained by guile, deceit, force or fraud, the tender of the sum obtained thereby is not required if it appears, either by the pleading or by the proof, that it would be useless or not accepted. Carroll v. United Railways Co., 157 Mo.App. 293-294; Girard v. St. Louis Car Co., 46 Mo.App. 79; Girard v. St. Louis Car Co., 123 Mo. 358; Reid v. St. L. & S. F. R. R. (S.Ct.), 187 S.W. 17; Deichman v. Deichman. 49 Mo. 107; Tenant v. Ins. Co., 133 Mo.App. 356-357; Westlake v. St. Louis, 77 Mo. 47; Walker v. Cooper, 97 Mo.App. 441; Woods v. Wickstrom (1913), 67 Ore. 581, 135 P. 192; Malkmus v. Cement Co., 150 Mo. 456; Putnam v. Boyer, 173 Mo.App. 400; 2 Black on Rescission and Cancellation (1916 Ed.), sec. 396. (2) One's acts and conduct may show fraud as well as misrepresentation, taking into account the unequal position of the parties. Stonemetz v. Head, 248 Mo. 243; Porter v. United Railways Co., 165 Mo.App. 619; Kendrick v. Ryus, 225 Mo. 150; Howard v. Scott, 225 Mo. 712; Judd v. Walker, 215 Mo. 312; Lanson v. Stock Exchange, 200 Mass. 367, 86 N.E. 940; Connor v. Chemical Co. (N. J.), 17 Atlantic 975; Union Pacific Ry. Co. v. Whitney, 198 F. 784, 117 C. C. A. 392; Logan v. United Ry. Co., 166 Mo.App. 490; Lusted v. C. & N.W. Ry. Co., 71 Wis. 391, 36 N.W. 857; C. R. & P. Ry. Co. v. Lewis, 109 Ill. 120; Woods v. Wickstrom, 67 Ore. 581, 135 P. 192; 2 Black on Rescission and Cancellation, (1916 Ed.), secs. 382-386-388; Wingfield v. Railroad, 257 Mo. 347; Koffman v. Railroad, 95 Mo.App. 459. (3) Whether or not the release was fairly obtained, is for the jury, and its finding is not open to review. Logan v. United Rys. Co., 166 Mo.App. 490. Where the appellant is not entitled to judgment, in any event, the case will not be reversed for error occurring during the trial, the judgment being for the right party, regardless of the error, the material rights of the appellant not being affected. Putnam v. Boyer, 173 Mo.App. 401; Carroll v. United Rys. Co., 157 Mo.App. 294; Cross v. Gould, 131 Mo.App. 593; Logan v. Field, 192 Mo. 70; Peterson v. The Transit Co., 199 Mo. 331; Revised Statutes of Mo., 1909, sec. 2082.

THOMPSON, J. Reynolds, P. J., and Allen, J., concur.

OPINION

THOMPSON, J.

This was an action for personal injuries. Plaintiff secured a verdict and judgment in the lower court, defendant filed motion for new trial, which was overruled, and it appeals to this court.

On the 24th day of February, 1913, plaintiff was in the employ of defendant company and while ascending a stairway on that day was injured by being struck on the head by the falling of a trap door which rested on hinges and was suspended over the stairway which ran from the basement to the first floor of the establishment in which he was employed. He was knocked to the floor by the door, rendered unconscious for some time, was removed to his boarding house a few blocks away and was laid up about five weeks. At the end of March, 1913, he returned to his former employment and continued to work there continually until the latter part of July or the first part of August, at which time he left the employment of the defendant after some difficulty with the defendant's superintendent, and thereafter, upon requesting a recommendation from defendant's superintendent, it was refused, and this suit was filed on the 8th day of September, 1913.

The evidence tended to show that during the summer of 1912 the defendant's building in which a soap factory was conducted was destroyed by fire and was rebuilt during the fall, and was not entirely completed in all its details on February 24, 1913, the date of this accident. The evidence showed that the defendant had contracted with a firm by the name of Mesker Brothers to construct and install an iron safety and trap door over the stairway in question, and that firm did construct the door and install it in position by means of hinges attached to the floor and a rope and weight with which it was raised and lowered over the trap door through which one ascended and descended in passing from one floor to another. At the time of the accident this door fell as plaintiff was ascending the stairs because of the fact that the rope which held it suspended over the staircase broke. This rope was furnished by Mesker Brothers and the evidence tended to show that at the time the door fell Mesker Brothers had not entirely completed its work for the installation of said trap door, and that the work had not been accepted or paid for by defendant company at the time of the accident. Plaintiff was paid his wages during the time he was unable to work, and his doctor bill was also paid.

The petition claims damages from the defendant for the injuries sustained by the falling of the door upon the plaintiff's head. The defendant's answer consisted, first of a general denial of liability, and second it sets forth a covenant not to sue, signed and acknowledged by the plaintiff, wherein for a consideration of $ 15 the plaintiff agreed not to bring suit against this defendant. This covenant not to sue was signed on the 28th day of February, 1913, under circumstances which will be detailed hereinafter. The plaintiff's reply to the answer was as follows:

"Comes now the plaintiff in the above entitled cause, and for his reply to defendant's answer states that within a few days after he was injured, as set out in his petition, and while he was confined to his room on account of the said injuries and while he was in no condition of body and mind to make any contract or to realize what he was doing, and while he was suffering great physical pain and mental anguish, he was visited by a man who said he was the attorney representing Wm. Waltke & Company, the present defendant. Plaintiff further states that this man told him that he had no cause of action against Wm. Waltke & Company, but that plaintiff did have a good cause of action against the company that constructed the said trap-door which caused the injury, and that as plaintiff had no cause of action against Wm. Waltke & Company, this man told the plaintiff that he would give him some money for medicine and other expenses until he could get well and that then the plaintiff could sue the aforesaid construction company for damages for the injuries received by him.

"Plaintiff states that he did not know this man and had never seen him before, and did not realize what he was doing, and that this man handed him fifteen dollars and got him to sign some paper, but did not read the same to him, nor was plaintiff permitted to read the same if he had been able to do so, nor did he leave plaintiff a copy of said paper.

"Plaintiff further states that the paper which he signed may be the one that the defendant mentions and sets up in its answer, but of this plaintiff is not fully advised for the reason that no copy of said paper was left with him, and he has not seen the said paper, it having not been filed with the said answer in this cause.

"Plaintiff further states that he signed the said paper relying on the statements of the aforesaid attorney, as far as...