186 P. 337 | Mont. | 1919
delivered the opinion, of the court.
Jacob C. Koemer was injured while employed by the Northern Pacific Railway Company repairing a water-tank at Brackett, North Dakota, and brought this action to recover damages. At the conclusion of the evidence the trial court directed a verdict for the defendant, and plaintiff has appealed from the judgment entered thereon and from an order denying his motion for a new trial.
1. The injury resulted from the bursting of a water-tank,
This case is not analogous to the case of Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 135 Am. St. Rep. 630, 107 Pac. 416, wherein the complaint set forth general allegations of negligence, followed by a statement of the particular acts of negligence which proximately caused the injury. As we read this complaint, it charges negligence in the use of the nails and also in permitting them to rust and corrode. The adverb “thus” used in the concluding clause of paragraph 4 characterizes both acts and not the last one merely.
2. Without reviewing the evidence at length, we content
3. In bar of plaintiff’s right to recover, the defendant alleged in its answer that after the injury was received by plaintiff, the defendant company paid him $1,250 in full settlement and discharge of all claims for damages arising from the injuries occasioned by the bursting of the water-tank and received a written release or acquittance signed by plaintiff. In reply the plaintiff alleged that if he ever signed a release or acquittance, he did so at a time when his faculties were so impaired as the result of his injury that he was mentally incompetent to enter into the contract.
Counsel for respondent have cited many cases in each of which the claimant sought to avoid a settlement agreement. We are not prepared to say that we find fault with the conclusion reached in any of them. In most of the cases there was clearly a failure on the part of the claimant to maintain the burden of showing that the release was not his voluntary act. Two of the cases are exceptional. In Laird v. Union Traction Co., 208 Pa. St. 574, 57 Atl. 987, it is said: “No rule of equity is better established in this state than that to set aside a written instrument, the evidence must be clear, precise and indubitable, whether the allegation be fraud practiced by the beneficiary under it or incapacity on the part of him who executed it.” In Pope v. Bailey-Marsh Co., 29 N. D. 355, 151 N. W. 18, it is said: “This court in numerous instances has recognized and enforced the general rule that solemn written instruments cannot be impeached for fraud of other cause except upon proof that is clear, satisfactory and convincing and of such character as to leave in the mind of the chancellor no hesitation or substantial doubt.”
Assuming the correctness of the rule announced in these cases, the conclusion in each is probably justified, but that rule does not obtain here. Section 8028, subdivision 5, Bevised Codes, establishes the rule in this jurisdiction as follows: “In civil cases the affirmative of the issue must be proved, and when the evidence is contradictory, the decision must be made according to the- preponderance of the evidence.” Under this statute, fraud or lack of mental capacity may be established by a bare preponderance of the evidence. (Gehlert v. Quinn, 35 Mont. 451, 119 Am. St. Rep. 864, 90 Pac. 168.)
There is not any controversy that the burden of proof was upon plaintiff to' show want of mental capacity sufficient to render him competent to enter into the settlement agreement. But upon motion of defendant for q directed verdict every fact will be deemed to be proved which the evidence offered by
Plaintiff testified that he never accepted the offer made for a final adjustment of his claim for- damages, never knowingly executed the release, and never knew of the existence of the release or of defendant’s claim that final settlement had been made, until the year after his interview with the claim agents. If this testimony be true, it follows that the release, though the verisimilitude of a contract, is lacking in the substance necessary to give it life. It is elementary that to constitute a contract the minds of the parties must have met upon the same thing at the same time, or, stated differently, a contract results only from an offer made by one of the parties and its unconditional acceptance by the other in all its terms. (Glenn v. S. Birch & Sons Const. Co., 52 Mont. 414, 420, 158 Pac. 834.) The release is not the settlement agreement, but evidence of it. It would be the only evidence of the terms of the agreement but for the fact that the validity of the agreement is in dispute. (Bev. Codes, sec. 7873.)
In view of the evidence referred to above, it was clearly for the jury to say whether the so-called settlement agreement was plaintiff’s voluntary act and deed; and this was apparently the view entertained by the trial court, otherwise the release or acquittance would have formed the basis of the ruling.
It is argued, however, that even .conceding that the release
A letter (Exhibit 16) directed to Taylor, the claim agent, in which occurs the following: “And because of the understanding with you at Jamestown, on the day that we made the
A letter (Exhibit 12) written to Dr. Ide, which contains the following passage: “I wonder if you could not arrange for me so that I could have treatment taken here by Dr: Eudell (who treated me before) or have Mr. John Taylor of the Claim Department arrange it for me to return to the hospital as he promised to do when he and I settled.”
A letter to Taylor (Exhibit 11) which concluded as follows: “I wrote you for a copy of the papers I signed when you paid me the $1,250 at Jamestown.”
In passing upon the motion for a directed verdict, the trial court expressed the opinion that these letters absolutely decided the controversy and indicated that the ruling was based upon them alone.
If it be assumed that at the time the acquittance was signed, plaintiff was not mentally competent to enter into the contract of settlement, still if thereafter, when he was in the control of his faculties, he ratified the settlement evidenced by the acquittance, he ..became bound by it as fully as if it had been unavoidable in the first instance. (Sec. 4994, Eev. Codes.)
If at the time any one of these letters was written, plaintiff
Whatever may be said upon the probabilities of the truth or falsity of plaintiff’s version of what transpired at the meeting with the claim agents, we are not prepared to say that it is so inherently untrustworthy as that a court may disregard it as manifestly untrue. Under these circumstances, and assuming the testimony to be true, as the trial court was required to do upon motion for a directed verdict, the reference in these letters (Exhibits 12 and 16) could not have been to the settlement evidenced by the acquittance and could not have constituted a ratification, because of the lack of knowledge of the contents or existence of the contract to be ratified. The letter (Exhibit 11) written after plaintiff was informed by Bohn that the defendant claimed to have a release cannot be considered as expressing an intent to ratify the agreement. The letter in its entirety is a demand for a copy of the papers which Bohn had insisted that plaintiff had signed.
If this case had gone to the jury and plaintiff’s-story had been accepted as true, then the statement in every one of these letters must have been construed as a reference to the agreement as plaintiff understood it, — an agreement by the terms of which he received $900 for compensation for lost time and $350 to defray the expense of his board and care until he could return to work. In our opinion, these letters do not amount to a ratification of the agreement evidenced by the release. (Abrahams v. Los Angeles Traction Co., 124 Cal. 411, 57 Pac. 216; Michalsky v. Centennial Brewing Co., 48 Mont. 1, 134 Pac. 307.)
The cause should have been submitted to the jury, and fo.r the error in (directing a verdict, the judgment and order are reversed and the cause is remanded for, a new trial.
Reversed and remanded.