Western Ry. of Alabama v. Foshee

• Decision Date: 15 May 1913
• Citation: 183 Ala. 182,62 So. 500
• Parties: WESTERN RY. OF ALABAMA v. FOSHEE.
• Court: Alabama Supreme Court

62 So. 500

183 Ala. 182

WESTERN RY. OF ALABAMA v. FOSHEE.

Supreme Court of Alabama

May 15, 1913

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Action by Nancy R. Foshee against the Western Railway of Alabama. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The following are the counts of the complaint referred to:

"(4) Plaintiff claims of defendant $25,000 as damages for that heretofore, to wit, October 20, 1911, defendant was a common carrier of passengers by means of a train upon a railroad running from Opelika to Millstead, Ala., and plaintiff's fare had been paid to defendant for being carried by defendant on said train from Opelika to Millstead, and plaintiff was on said train as defendant's passenger on the occasion aforesaid to be carried by defendant as aforesaid, and while plaintiff was on said train as defendant passenger on the occasion aforesaid, and said train was in or near said Opelika, that car provided by defendant for the carriage of passengers upon which plaintiff rightfully was in said train as such passenger was suddenly or violently jarred or jolted so that as a proximate consequence thereof plaintiff was thrown or caused to fall, and (here follows a catalogue of her injuries). Plaintiff avers that defendant was guilty of negligence in or about carrying plaintiff as its passenger on the occasion aforesaid, and that as a proximate consequence of said negligence said car on which plaintiff was on the occasion aforesaid was suddenly and violently jarred or jolted on said occasion, and plaintiff suffered said consequent injuries and damages."

Count 5. Same as 4 down to and through catalogue of injuries with the additional allegation plaintiff further avers that defendant's servants or agents, acting within the line and scope of his authority as such, wantonly or intentionally caused plaintiff to suffer said injuries and damages by wantonly or intentionally causing said car on which plaintiff was to be suddenly and violently jarred or jolted on said occasion, well knowing that so to do would likely or probably cause some passenger to suffer great personal injury and damages.

Plea 1 was the general issue.

Plea 2 payment.

"(3) That defendant had compromised and settled any and all claims which plaintiff had against the defendant for alleged injury for a valuable consideration and took her written release therefor in words and figures as follows: 'Alexander City, March 22, 1912. To whom it may concern: I, Mrs. Nancy R. Foshee, being a passenger on a train of the Western Railway of Alabama on October 20, 1911, and receiving certain bodily injuries which I hold makes the said Western Railway of Alabama liable to me for said injuries, which fact, if denied by the said Western Railway of Alabama, and whereas both parties desire to settle the question of damages, I Mrs. Nancy R. Foshee, do hereby agree to accept the sum of $300 to me in hand paid and the receipt of which I hereby acknowledge, and same is to be in full for all damages which I receive both now and hereafter, and I hereby quitclaim and release the said Western Railway of Alabama for all liability for my injuries for the sum of $300.' Signed by Mrs Nancy R. Foshee and witnessed by H.L. Foshee and A.H. Hollowell."

Plea 4 is the plea of payment, not only as to the debt and demand, but as to the cost which had accrued in the court.

(5) Same as 3, with the addition that it is alleged that all costs accrued had been paid.

(6) Plea of payment of all damages and costs.

(7) That defendant gave and plaintiff received and accepted a check for $300 in satisfaction of the cause of action.

(8) Same as 7, with the additional averment as to payment of cost.

(9) Same as 3, with a little elaboration as to detail and an additional averment as to payment of cost.

The following are the replications to pleas 5 and 9:

"(2) That the compromise and settlement therein referred to was obtained by fraud in this: Plaintiff was in weak mental and physical condition, and was then ignorant of the extent and consequences of her injuries, the subject-matter of this suit; she was incapable of knowing or appreciating the extent thereof, and was then and there without legal advice, and was absent from the attorney whom she had previously employed to advise and represent her in the assertion of her said claims against the defendant and was without the aid or counsel of any person who knew the extent of her injuries, or the extent of defendant's liability to her for said injuries, and that one Dr. Palmer, a practicing physician, acting in behalf of defendant, and knowing or having notice of the aforesaid facts and conditions, came to plaintiff's home and gained or had plaintiff's confidence and told plaintiff, in or about procuring said compromise or settlement, substantially that there was nothing serious the matter with her, which was in fact false and was made for the fraudulent purpose of procuring said compromise or settlement for a grossly inadequate sum, and said Palmer thereby induced and unduly influenced plaintiff to sign said paper writing for a check for a sum grossly less than would be the fair and just compensation for plaintiff's injury. The said check so given by Palmer was given her and accepted by her upon the statement of the said Palmer that the same would be paid upon presentation to Nolen's Bank in Alexander City, and plaintiff caused said check to be duly presented by her agent on the next day after it was given to her, and said bank declined to pay the same, and plaintiff's agent then and there left said check at said bank but had no authority to leave said check at said bank for collection for plaintiff, and said agent so informed said bank upon its refusal to pay same.

Plaintiff on the same day repudiated said compromise and settlement and rescinded said release, and on that day, through her attorney at law, notified the said Palmer that she had repudiated the same and would not be further bound thereby and would not have received said check or its proceeds, and plaintiff further avers that she never has received any amount whatsoever in consideration of said settlement or compromise and has never received any amount whatever as proceeds of said check, and has not now, nor has she ever had, possession of said check since same was left in the bank for her on the day following the day same was given her by said Palmer."

"(4) That there was no valuable consideration for her signature to said paper writing, and there was no valuable consideration for said compromise and settlement."

George P. Harrison, of Opelika, for appellant.

Harsh, Beddow & Fitts, of Birmingham, and P.O. Stevens, of Alexander City, for appellee.

SAYRE J.

Under the act creating the Lee county court of law and equity, this case is brought here for a review of the rulings on the pleadings in advance of a submission to the jury. As we read count 4 of the amended complaint, it avers negligence antedating the sudden and violent jolting or jarring of the car in which plaintiff was a passenger, a negligence which, operating through the alleged sudden jolt or jar of the car, caused plaintiff's injury. True, the negligence is averred in a most general way. It is that defendant was guilty of negligence in or about carrying plaintiff as its passenger; but that averment of negligence, in connection with a statement of the relation between the parties, has been held sufficient in cases of the sort. Armstrong v. Montgomery

St.Ry. Co., 123 Ala. 233, 26 So. 349; L. & N.R.R. Co. v. Church, 155 Ala. 329, 46 So. 457, 130 Am.St.Rep. 29; B.R.L. & P. Co. v. Haggard, 155 Ala. 343, 46 So. 519. This case may be differentiated from B.R.L. & P. Co. v. Weathers, 164 Ala. 23, 51 So. 303, on the consideration that in that case there was no effort to aver, generally or otherwise, a negligence antedating the alleged sudden jerk in the line of causation, nor was it averred that the sudden jerk was negligently caused. The complaint in that case was rested upon the bare fact that plaintiff was injured by an isolated, unrelated jerk, which was without characterization, except that it was alleged to have been sudden. This was held insufficient. Here, as we have seen, there is an averment of negligence which operated through a sudden and violent jar or jolt to plaintiff's injury. The demurrer to the count was properly overruled.

More patently count 5 was good. The averment is that defendant's servant or agent, acting within the line and scope of his authority as such, wantonly or intentionally caused plaintiff's injuries, not that ...