Austin v. St. Louis Transit Co.

115 Mo. App. 146 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — An instruction in the nature of a demurrer to the evidence was offered and refused. Plaintiff made out a clear case entitling her to recover. The defense relied on was the release and the failure to tender back the ten dollars paid. In respect to the tender, the evidence is that pending a former suit on the same cause of action, plaintiff’s attorney went to the office of the attorney of record for the defendant in the former suit and offered to pay him the ten dollars and stated to the attorney that if he would not accept the tender he would go to the general office of the defendant and make it there. The defendant’s attorney replied that there was “no- use to do that” as the defendant would not accept the money. We think this evidence is sufficient to show that a technical tender of the ten dollars was waived by the defendant. In regard to the release, the plaintiff’s evidence tends to show that it was obtained by the false representations of defendant’s claim agent and that she signed it believing it to be simply a receipt and nothing more. If this evidence is to be believed, then the so-called release constituted no bar to tbe suit. The question as to whether or not it was fairly obtained was, under all the evidence, for the jury and not for the court, and the court properly denied the defendant’s demurrer to the evidence.

The defendant assigns.as error the giving of the following instruction for plaintiff:

“3. The court instructs the jury that if they find and believe from the evidence that the plaintiff is an ignorant and illiterate woman and that within a few days after her injury defendant’s claim agent called on her and repeated his visits to her during the succeeding week, and induced her to accept from him the sum of ten dollars by representing to her that the defendant could not be compelled by law to pay her anything, but that it had authorized him to give her five dollars as a grat.uity and that he himself would add five dollars to that amount, and desired her to sign a receipt so that he could show defendant that he had paid out this money, and if you believe that when the plaintiff signed said release she did not understand its contents or character .and thought it was a receipt and not a release of her rights, and that its nature was misrepresented (as above .stated) to her by defendant’s agent, then said release is .invalid and constituted no defense to this suit.”

This instruction authorized the jury to find for the plaintiff if they found that defendant’s claim agent made .false representations to plaintiff, representations which he knew to be false, and that the representations were believed to be true by plaintiff and were relied on by her, and we can see no objection to it or just ground for its criticism.

The first instruction given for plaintiff reads asi follows:

“1. The jury are instructed that it was the duty of those in charge of the car operated by defendant company, when signaled to stop for the discharge of passengers to stop a reasonably sufficient length of time to allow passengers to get off the car in safety; and if the jury believe from the evidence that some one for plaintiff rang the bell of the car on which she was riding to stop the same for her to alight, and thereupon said car was stopped on Mills street, at a regular stopping place in pursuance of said signal, and that while it was so stopped the plaintiff undertook-to alight from said car and while in the act of so doing, the servants of defendant in charge of said car negligently and carelessly started the same, and thereby threw her to the ground and injured her, then your verdict must be for the plaintiff, provided you further find that in so attempting to alight from said car the plaintiff exercised ordinary care on her own part.”

It is contended that this instruction is erroneous for the reason it predicates a state of facts which, if found by the jury, authorized them to find for the plaintiff, leaving out of view the defense of the. release. The instruction is bad. One instruction or a series of instructions asked by the plaintiff, covering the entire case, should submit for consideration by the jury points raised by evidence of his adversary. [Clark v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; State v. McKinzie, 102 Mo. 620, 15 S. W. 149; Griffith v. Conway, 45 Mo. App. 574; Lesser v. Railway, 85 Mo. App. 326; Galbreath v. Carnes, 91 Mo. App. 512.] But where the omission is cured by other instructions plainly and intelligently submitting the omitted evidence to the jury and directing the result that should be reached if such evidence is found to be true, the error would be corrected. [Gordon v. Burris, 153 Mo. 223, 54 S. W. 546; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Orscheln v. Scott, 79 Mo. App. 534; Lemser v. Mfg. Co., 70 Mo. App. 209; Larson v. Mining Co., 71 Mo. App. 512.]

Concerning the release, the court gave the following instructions for defendant:

“The jury are instructed that the mere fact that the - plaintiff, at the time she signed the release in question here, believed her injuries were not so serious as they really were (if they so find from the facts), is of itself no ground for setting aside said release.

“3. The jury are instructed that if defendant and its agents and plaintiff, both believed her injuries were less than they really were, at the time the release in question here was signed, if they so find the facts, this furnishes, of itself, no ground for setting aside said release.

“4. The jury are instructed that the amount of the consideration for said release; that is, the amount of money paid to plaintiff, furnishes, of itself, no ground for setting aside said release.

“5. If the jury believe that the plaintiff carelessly signed the release in question here, handed to her by a man she knew to be a claim agent of defendant company, without taking any care to ascertain its contents, and that in doing this she was not doing as an ordinarily prudent person would do under the same circumstances, then the plaintiff is bound by the release, and is not entitled to recover.

“6. If the jury believe from the evidence that the plaintiff, at the time she signed the release in question here, knew that it was a release of her claim, then your verdict must be for the defendant, whatever you may believe as to the other facts in this case.

“7. The jury cannot presume that the signature of the plaintiff to the'release in question here was obtained by fraud, but on the contrary, when a person of sound mind signs a paper it is presumed that she does so with knowledge of the contents thereof. And in this connection the jury are instructed that the fact, if they so find it, that the plaintiff signed the release here without reading it, or having it read to her is not proof of fraud, unless the defendant’s agent made some misrepresentation or did something to induce her to sign it. And even if defendant’s agent did make some misrepresentation as to the contents of said release, or did induce her to sign it without reading it, this will not entitle her to recover, if under all the facts the jury believe she knew what she was signing, at the time she signed the release.”

With all this direction in their possession it cannot be even imagined that the issue in respect to the release was ignored by the jury.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.