66 Mo. App. 335 | Mo. Ct. App. | 1896
On the night of the seventh of October,. 1893, while plaintiff was crossing the defendant’s railroad track at a public highway, the wagon in which he was riding was struck by an engine and he was thrown to the ground, receiving a severe cut on his head and other injuries on his chest and back. He sues in this-action for damages on account of such injuries, and alleges as acts of negligence that the defendant’s servants in charge of the engine failed to sound the-whistle or to ring the bell in approaching the crossing. The answer is a general denial, and in bar of the action a release of the alleged cause of action was set-forth. In the reply the plaintiff denied the execution of the release, but alleged that, if he did in fact execute the paper, he was not of contracting mind, and. that the defendant’s agents took advantage of his weak, mental condition in procuring his signature.
The trial resulted in a verdict and judgment in. favor of the plaintiff for $400, from which the defendant has appealed.
The defendant made the point in the circuit court (which it renews here), that the plaintiff’s reply presents issues which can not be tried in an action at law. This assignment presents a question which has troubled tne appellate courts of the state, and concerning which the judges have been unable to fully agree.
The question arose in this court in the case off
The supreme court again dealt with the question in the case of Och v. Missouri, etc., Railway Company,. reported in the 31 S. W. Reporter, 962. We understand the majority opinion in that case to hold that, where the execution of the release is denied, or it is claimed that its execution was obtained by fraud or deception,, or that the plaintiff was legally incapable of contracting, resort need not be made to a court of equity to-set aside the release, but that, where the claim is that the plaintiff was induced to enter into the contract through fraud or undue influence, or that at the time he was temporarily insane, that is, not of sufficient mind to comprehend the nature and effect of the transaction, then the release must be first set aside in a. court of equity. The distinction is that, -in the circumstances first named, the case is presented and tried on the theory that there is no contract, while in the other the contract is admitted but the plaintiff avers that he ought not to be bound by it.
Under the foregoing decisions, as we read and understand them, the issues raised by the reply in this case, namely, whether the plaintiff executed the release, or, if he did, whether its execution was obtained by
The point is also made by defendant’s counsel that, as a condition precedent to plaintiff’s right to sue at law, he should have returned or offered to return the money which he admits he received from the defendant. This question was also raised in the Girard case, but Judge Macfaelahe, in whose opinion a majority of the court seem to have concurred, declined to pass on it, for the reason that it was not presented by the record. Concerning this question we gather from the discussion in the Och case that, where the plaintiff denies the execution of the release or alleges fraud or deception in its execution, or where the plaintiff was legally incapable of contracting, the plaintiff need not return the money, but that, in other cases, where resort must be had to a court of equity to cancel the release, the money must be returned or tendered back when the suit is commenced. Hence we must. hold that, under the issues which are in part presented by the reply in the present case, the plaintiff was not required to return or offer to return the money.
•Did the plaintiff execute the release; or, if so, was his signature obtained by fraud or deception, were the only issues made by the reply, which were properly triable. As there was no evidence to support either, the circuit court committed error in overruling the defendant’s demurrer to the evidence. The facts and circumstances attending the execution of the instrument may be summarized as follows: The plaintiff
The foregoing is believed to be a fair statement of the facts, which leaves no room to doubt that the plaintiff actually executed the release by making his mark. Neither is there the least thing tending to show that the defendant practiced any fraud, trick, or deception, in procuring his signature. At the suggestion of the plaintiff his physician made a proposition of settlement; it was accepted by the defendant’s agent; the release was prepared according to the proposed terms; and the plaintiff signed it.
If the plaintiff was induced to sign the release through the false representations of the defendant’s agent, or by reason of any undue influence exercised by him, or if at the time the plaintiff was temporarily not •of contracting mind, he must first have the release set aside, and, until this is done, it stands as a legal bar to the further prosecution of the action. We will, therefore, reverse the judgment and remand the cause, in order to give plaintiff an opportunity, if so advised, to amend his petition by adding a count in equity. Judge Rombauek, concurs in this opinion as written, Judge Bond in the result only; and they are of the further opinion that the circuit court erred in refusing to grant a new trial on account of newly discovered evidence, in which I do not concur.