Woody v. St. Louis & S.F. Ry. Co.
| Decision Date | 01 February 1904 |
| Citation | 78 S.W. 658,104 Mo.App. 678 |
| Parties | JULIA ANN WOODY, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.
Judgment affirmed.
J. F Parker and J. T. Woodruff for appellants.
(1) Defendants' interpretation of the release, and their understanding of the agreement was known to the plaintiff and her attorneys immediately after the settlement notwithstanding, she never returned or offered to return the $ 510 paid as a consideration of the compromise, or even as much as tendered a return in her replication, although she does admit therein that she made a settlement of the case. Such being the condition of the case, it was the duty of the court to sustain defendants' motion for judgment upon the pleadings, for plaintiff could not retain the benefits accruing to her by the terms of the compromise, and at the same time, escape its provisions in other respects. Och v. Railroad, 130 Mo. 27; Este v. Reynolds, 75 Mo. 563; Jarrett v. Morton, 44 Mo. 275; Hart v Hamilton, 43 Mo. 171; Carson v. Smith, 133 Mo. 606; Doane v. Lockwood, 115 Ill. 490; S. C., 4 N.E. 500; Pomeroy, Eq. Jur., 910; Railroad v. Hays, 83 Ga. 558; Ins. Co. v. Howard, 111 Ind. 544; S. C., 13 N.E. 103; Gould v. Bank, 86 N.Y. 75; Cobb v. Hatfield, 46 N.Y. 533; Bispham's Eq. (3 Ed.), s. p. 472. (2) As to the second assignment, that the court erred in narrowing down the issue as to whether the case should be dismissed at the cost of the plaintiff or defendants, and excluding all other issues and compelling the defendants over their objection and protest to go to trial upon that issue, it seems there can be but one answer, which is that the court not only committed error, but error of a kind unheard of under the practice in this State. (3) Where permission is given to prosecute a suit as a poor person, costs can be recovered only as an incident to a judgment. No judgment having been entered for the plaintiff, costs could not be recovered against the defendants. R. S. 1899, sec. 1545; Thompson v. Elevator Co., 77 Mo. 520; Murphy v. Smith, 86 Mo. 333; Hoover v. Railroad, 115 Mo. 77.
Rechow & Pufahl for respondent.
Submitted an argument.
This is an action which was brought in the Polk county circuit court by the plaintiffs George and Julia Ann Woody, husband and wife, against the defendant to recover $ 5,000 damages for the death of their infant son, Troy, which it was alleged in the petition was occasioned by the negligence of the agents and servants of said railway company while engaged in operating one of its trains of cars, etc. Upon the application of defendant the venue of the cause was removed to the circuit court of Dallas county; and upon their further application it was removed from the latter court to the circuit court of Cedar county, just after which the plaintiff, George Woody, died. While the cause was pending in the last named court some compromise settlement of the cause was entered into between the surviving plaintiff and defendants. The later produced before the court a writing which plaintiff had signed by making her mark and which paper recited that for the consideration of $ 500 she released the defendants from all manner of actions whatever which she had against them, etc. Defendants further produced another paper similarly signed which authorized the attorneys of the defendants to dismiss the plaintiff's action at her cost. The defendants' attorneys accordingly moved the court to dismiss the action at her costs; but to this she objected on the ground that she had not executed the paper produced by defendants authorizing such dismissal. The court refused to sustain the defendants' motion, and thereupon by consent of parties the venue of the cause was changed back to the circuit court at Polk county.
After three changes of venue and two jury trials without decisive results the defendants filed an amended answer in which, amongst other defenses, was pleaded the release heretofore referred to. The plaintiff filed a replication in which it was alleged that she made a settlement of the cause of action alleged in her petition and by the terms of which "defendants agreed in consideration of the release of said cause of action to pay her $ 510 and also to pay all the costs that had accrued in the action; that the defendants' agents prepared said release papers for her to sign which she understood contained the agreement just stated instead of that pleaded by the defendants in their answer, to which she never assented, made nor entered into; that she was illiterate, could neither read nor write, and made her mark only, and that she did so with the distinct understanding that it embraced the contract as agreed upon in all the conversations and upon all the representations in relation to the matter of such settlement," etc.
At this stage of the case the defendants filed a motion to set aside the order theretofore made permitting plaintiff to prosecute her suit in forma pauperis and to require her to give bond for costs, etc. And thereupon the court made an order sustaining the said motion with the qualification that "the only issue which the court will permit plaintiff to try without giving bond is the issue as to which party should pay the costs already accrued." No exception was taken by either party to this ruling of the court. The plaintiff then filed a motion to dismiss the action at the cost of the defendants, alleging as the ground therefor that she was illiterate, being unable to read or write, and that defendants' agents stated to her that they would pay her $ 500 and all costs of suit if she would settle her claim; that she was then in destitute circumstances and was not represented by her attorneys; that defendants procured the services of her mother and brothers to aid them in inducing her to settle said claim, and that by reason of said undue influence she was induced to...
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