61 Minn. 249 | Minn. | 1895
Lead Opinion
This is a personal injury case. The complaint alleges that the plaintiff was, by the negligence of the defendant and its servants, run over by a hand car, whereby he was seriously and permanently injured. The defendant, by its answer, admits that the plaintiff was injured by being struck and run upon by a hand car on its railway, alleges contributory negligence on his part, and alleges that before the commencement of the action the plaintiff released, acquitted, and discharged the defendant, for a valuable consideration, of and from all causes of action, claims, and demands arising from or growing out of the injuries so received. Other than as might be inferred, if at all, from the foregoing language of the answer, it did not state or suggest that the plaintiff had ever executed to the defendant a written release of his cause of action. The reply was a general denial.
Upon the trial the plaintiff introduced evidence tending to establish the allegations of his complaint, and a cause of action against the defendant, and rested. The defendant then called Nelson Cray, its claim agent, as a witness, who testified that he settled with the plaintiff for his injuries received from falling off a hand car, and paid him $25, and that he signed a paper at that time. The paper was produced, and the witness testified that plaintiff signed it in his presence. F. K. Saunders, the defendant’s section foreman, was also called as a witness, and gave substantially the same evidence. The paper, which is designated in the record as “Exhibit A,” was then offered and received in evidence, against the plaintiff’s objection and exception. It is a formal, written release, whereby the plaintiff, in consideration of $25, released the defendant “of and from any and all cause or causes of action, costs, charges, claims, or demand, of whatever name or nature, in any manner arising or to grow out of the injury received on or about May 14th, 1892, by being run over by a hand car, * * * causing the fracture of right limb between knee and hip joints.”
The only question for our consideration is whether the trial court erred in refusing to receive the proffered evidence. It is a question of pleading, as the ruling was based upon the sole ground that the defense sought to be proved had not been pleaded.
It is important to determine, at the outset, just what the defense sought to be proved was, for if it was to the effect that the plaintiff in fact made a settlement of his cause of action, and knowingly made (not simply'signed) and delivered a release of the same, but was induced to do so, by the false representations and fraudulent practices of the defendant’s agent, then the ruling of the court was
The decisions of this court relied upon by the respondent are all of this character. Thus Finley v. Quirk, 9 Minn. 179 (194), was a case where it was admitted that a sale of a horse in fact had been made; but the defendant sought to avoid liability on a warranty of the horse by showing that the sale was made on Sunday, and it was held that this was a matter in confession and avoidance, and not .admissible under a general denial. In Daly v. Proetz, 20 Minn. 3C3 (411), the defendant admitted that he released a prior chattel mortgage, and took a new one, whereby the plaintiff’s mortgage became a first lien; and he sought to avoid the effect of the release admitted to have been made by showing that he was induced to do so by the fraud of the mortgagors, and it was held that he could not do .so under a general denial. Brown v. Eaton, 21 Minn. 409, was an-action for specific performance of a contract to convey land; and it was held that the defendant could not, under a general denial, avoid his contract by showing that he had a wife, that she did not sign the contract, and that the land was his homestead. Kennedy v. Mc-Quaid, 56 Minn. 450, 58 N. W. 35, was only an application of the rule that matters in confession and avoidance could not be given in evidence under general denial.
These cases are only illustrations of the general rule of pleading that under a general denial no fact can be given in evidence which ■does not go directly to disprove the act alleged by the opposite party; that matters which admit the act, but avoid its effect, or ■discharge the obligation, cannot be given in evidence under the general denial. On the other hand, if the evidence offered by the plaintiff in this case did not admit the act alleged, viz. a release and -discharge of his cause of action, but tended to disprove the act, it was admissible, and the court erred in excluding it, for any facts may be proved under a general denial, although apparently new matter, which, instead of admitting and avoiding, tend to disprove, those alleged by the opposite party. Such facts support the denial. Bliss, Code PI. §§ 327, 328.
The evidence offered by plaintiff which was rejected went directly to the point that he never released and discharged his claim, and supported the denial in his reply. He did not, as respondent as
Order denying a new trial reversed, and new trial granted.
Concurrence Opinion
I concur in the result in this case for the reason that defendant, in its answer, does not plead or suggest that any written contract of release or satisfaction was ever made.
The defense is stated in the answer as follows: “(6) Defendant alleges that after plaintiff received such injuries by being struck or run upon by said hand car, as hereinbefore mentioned, and on or about the 28th day of June, 1892, the plaintiff, for a valuable consideration, duly released, acquitted, and discharged this defendant of and from any, every, and all cause or causes of action, claims, and demands, of whatever name or nature, in any manner arising or to grow out of such injuries so received, and duly acknowledged full payment, satisfaction, and discharge of all causes of action, claims, and demands arising or to grow out of any and all such injuries.”
it was well settled that under the general issue, at common law, the defendant could show that the execution of the instrument sued on was procured by fraud. But this practice is wholly contrary to the spirit ánd intent of the Code. Pomerov. Rem. (2d Ed.) §§ 645, 656 to 664. In this respect, code pleading follows the rules of equity, rather than those of the common law. Under the code practice, if the defendant, on the trial, is compelled to admit the
But the defendant, in this case, has not apprised plaintiff that it Intended to rely on a written release. The plaintiff, on the trial, was not obliged to confess, and did not confess, the apparent defense set up by defendant in its answer. The defendant pleaded only the ultimate fact that plaintiff had, for a consideration, released defendant. Plaintiff was not supposed to know that defendant intended to prove a written release, and, in his reply, was not obliged to anticipate any such written release. If it was a case where the plaintiff would be compelled to seek affirmative equitable relief to set aside the written instrument, the rule would be different, and plaintiff would be compelled to anticipate such written instrument, whether it was pleaded or not. But this is not such a case. The defense interposed to this written instrument is purely legal. For the purpose of confession and avoidance, under code pleading, the apparent defense set up in this answer is not the apparent defense set up on the trial. If the defendant would compel plaintiff to plead specially to this defense, it should have pleaded .the defense in a more special manner.