Woosley v. Wells

• Decision Date: 12 March 1926
• Docket Number: 25038
• Citation: 281 S.W. 695
• Parties: WOOSLEY v. WELLS
• Court: Missouri Supreme Court

281 S.W. 695

WOOSLEY v. WELLS

No. 25038

Supreme Court of Missouri, First Division

March 12, 1926

L. G Peery, of St. Louis (Lew R. Thomason, of St. Louis, of counsel), for appellant.

T. E Francis and Vance J. Higgs, both of St. Louis, for respondent.

OPINION

SEDDON, C.

This action was brought to recover from defendant plaintiff's damages, alleged to be the sum of $ 25,000, for medical and hospital expenses and loss of services of his wife, Martha Woosley, occasioned by the alleged negligence of defendant in the operation of a street car upon which plaintiff's wife was a passenger. The answer is a general denial, and furthermore pleads as a bar that plaintiff executed and delivered to defendant, for a valuable consideration, a written release, wherein he released, acquitted, and discharged defendant from any and all liability on account of the alleged claim set forth in the petition, and that plaintiff is debarred from prosecuting his alleged cause of action. The reply denies generally the allegations of the answer, and pleads in avoidance that the release was obtained by fraud and misrepresentation, charging with particularity that:

'On or about the 19th day of December, 1921, the defendant plotted with and formed a conspiracy with two lawyers (naming them), and by false and fraudulent representations wrongfully, fraudulently, and unlawfully induced him (plaintiff) to sign (by making his mark) four papers, one of which, he has since learned was the so-called release pleaded by the defendant in his answer.'

The reply alleges that plaintiff is illiterate and can neither read nor write; that he knew nothing about legal papers or legal procedure, and placed confidence in said attorneys that the said attorneys did not read to him the purported release or explain to plaintiff the contents thereof or inform him that he was signing a release of his cause of action; that plaintiff received nothing for signing the purported release; and that the paper purporting to be a release and settlement of his cause of action was 'a sham, a trick, and a fraud,' perpetrated upon him by defendant and said lawyers, and that said alleged release is of no effect and void.

The trial court, at the close of the whole case, gave to the jury a peremptory instruction in the nature of a demurrer to the evidence. After said instruction had been given and read to the jury, but before a verdict had been returned, plaintiff took an involuntary nonsuit, with leave to set the same aside. In due time, plaintiff filed his motion to set aside the nonsuit and for a new trial, and, upon the overruling of said motion nisi, plaintiff was allowed an appeal to this court.

In ruling the propriety of the trial court's action in allowing a demurrer to the evidence, we will endeavor to state from the record before us the facts most favorable to plaintiff. The evidence tends to show that plaintiff's wife was somewhat seriously injured on July 28, 1921, in alighting from one of defendant's street cars, and was confined to bed at a hospital and at home for several weeks thereafter, during which time she was treated by one or more physicians. Shortly after her injury, an attorney called upon Mrs. Woosley at her home, and she signed an agreement authorizing him to represent her in the matter of her claim against defendant arising out of her injury. Subsequently, an associate of said attorney came to see Mrs. Woosley several times regarding her claim, finally resulting in a settlement thereof with defendant. On the afternoon of Saturday, December 3, 1921, the associate attorney came to plaintiff's home with four typewritten papers, and duplicates thereof, as follows: (1) A release of Mrs. Woosley's claim and cause of action, dated November 19, 1921, for an expressed consideration of $ 4,400; (2) a release of plaintiff's claim and cause of action, also dated November 19, 1921, for an expressed consideration of $ 100; (3) an affidavit (so-called) to be signed and acknowledged by plaintiff; and (4) a stipulation of dismissal of plaintiff's suit or cause of action. The attorney was accompanied by a notary public.

The two releases or settlement agreements are in the usual form of such agreements, releasing, acquitting, and discharging defendant and United Railways Company from any and all liability on account of any and all claims and causes of action which the respective parties had arising out of the alleged injuries to Mrs. Woosley. Each of the settlement agreements contains this paragraph:

'And I hereby declare that I fully understand the terms of this settlement, and that I voluntarily accept said sum for the purpose of making a full and final compromise, adjustment, and settlement of the injuries and damages above mentioned.'

Both releases have appended thereto the following:

'The foregoing release was signed by John F. Woosley (in the one instance, and by Martha Woosley in the other instance) in our presence after being read to/by him (or her) at length,'

-- and purport to have been witnessed by both said associated attorneys. Plaintiff signed his release by affixing his mark thereto. The affidavit is as follows:

'Affidavit.

'State of Missouri, City of St. Louis -- ss.:

'My name is John F. Woosley. I live at 3228 North Broadway. On the 29th day of July, 1921, I retained the firm of (said attorneys) to represent me for the loss of services of my wife, who was injured by reason of an accident, when she alighted from a Broadway street car on the 28th day of July, 1921, at 10:40 p. m.

'I have settled my case for $ 100.00, and have signed releases for that sum. I have never retained any other lawyer in this case and I have never authorized the bringing of a suit on this case. I have retained no lawyers but (said attorneys).

'I am settling my case with full and free knowledge of all the facts and am satisfied to do so for the sum of one hundred ($ 100.00) dollars, and I am accepting this sum in complete satisfaction of all my claims.

his

'John F. X Woosley.'

mark

The affidavit also purports to have been witnessed by both said associated attorneys. Appended to the affidavit and also to plaintiff's settlement agreement is an acknowledgment in the following form:

'Personally appeared before me this 3d day of December, 1921, John F. Woosley, to me well known to be the person who executed the above and foregoing instrument by making an X mark to the foregoing instrument and acknowledged the same to be of his free act and deed for the purposes therein mentioned,'

-- duly attested by the notary public, with his seal of office affixed.

The stipulation of dismissal of plaintiff's suit is as follows, omitting venue and caption:

'Plaintiff acknowledges that the above-entitled cause has been fully settled and adjusted between the parties, and hereby authorizes and directs dismissal of the same at the cost of the defendant.

'Dated at St. Louis, Missouri, the 19th day of November, 1921.

his

'John F. X Woosley.'

mark

The stipulation likewise purports to have been witnessed by both associated attorneys.

Relative to the signing of the papers, Mrs. Woosley, wife of plaintiff, testified:

'Q. What did he (the attorney) say to you when he came out there? A. He said that he had -- he brought some papers to give me $ 4,500; that I had to pay all expenses and everything out of it. And I asked him then how much I would have left, and he said, 'Something over $ 2,300' And I said, 'Well, I will not sign a scratch unless I get $ 2,500 at least' And I said, 'I think that is little enough to be crippled all your life' And he said, 'You sign that, and I will see that you get $ 2,500, and I will pay all the rest myself' And I signed it. Q. Do you remember how many papers you signed? A. I think I signed four. Q. You can write your name, can you? A. Yes, sir. Q. Can you read? A. I can read, but I can't see very good to read, and I had my son to read it, and he read my release to me. And there were three or four more papers, and I asked him to read the rest, and (the attorney) said it was no use, that they were all alike. Q. Was your husband there at that time? A. Yes, sir. Q. And was there any paper read there, except the one you have mentioned? A. No, sir; absolutely there was not. Q. Was there any conversation there between you and (the attorney), or between him and Mr. Woosley, that you heard about settling his (plaintiff's) claim? A. Yes, sir. Q. What was the conversation? A. My husband said he didn't want to sign any papers, as he had a case pending against the company, and he didn't want to sign it until he saw his lawyer, and my son and the boy that boards there went out to call him up and couldn't get him. And when they came back he told him he wanted him to wait until Monday. And (the lawyer) jumped up, and he said, 'I will just tell you what the street car company said, that they didn't give a -- if he signed it or not, if you don't sign it to-day, you will not get anything' And that was the conversation that (the attorney) had. Q. What did (the attorney) say, if anything, respecting his (plaintiff's) claim, about whether he was releasing it or not? A. He didn't say anything about that; and when my husband said that he didn't want to sign it, he was afraid he would do something against his lawyer, and he said he could get into trouble, and he (the attorney) said, 'Your lawyer can't do anything; you are signing your wife's release' Q. And then I suppose your husband signed these papers? A. Yes, sir. Q. How did he sign them? A. He made his mark. Q. Did your husband get any money that you know of? A. No, sir. Q. Did he get any of the $ 2,500? Did (the lawyers) give him any money out of this? A. No, sir; they did not.'

Cross-examination:

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