57 Kan. 195 | Kan. | 1896
A passenger train of tlie Missouri Pacific Railway Company, running through, the State •of Missouri, was derailed June 28, 1890, and, as a result, Effie C. Lovelace, who was a passenger thereon, received some injuries. She came at once to her home in Kansas City, Mo., and, July 1, 1890, after some negotiations, signed a paper in which it was stipulated that, for a consideration of $100, she re
“Kansas City, January 16, 1891.
‘ ‘ In consideration of the sum of twenty dollars to me paid by the Mo. Pac.-Ry. Co., I hereby assign to said Co., my fees in the case of Emma Tyler v. said Co., which amount to $6.25 ; and also release to said Co. any and all claims I have against it for injuries received by me in accident which occurred on June 28, 1890. Mrs. Eerie C. Lovelace.
Attest: H. C. McDougal.”
For the same consideration, and on the same day, her husband executed a paper releasing the Company from any and all claims he might have against the Company on account of injuries to his wife caused by the accident above mentioned.
July 23, 1891, she came into Kansas and instituted an action in the District Court of Johnson County against the Company, alleging that the derailment and injury were caused by the negligence of the Company, and that, in consequence of the negligence, she had sustained injuries in the sum of $10,000. In its answer, the Railway Company denied negligence, averred that the claim for the injury had been compromised and adjusted, and set forth the releases heretofore mentioned. In reply to the answer the plaintiff below alleged that the release of July 1, 1890, was obtained while she was suffering great bodily
“ Doctor, what would you say from the condition in which you found plaintiff at the time you examined her, if the injuries resulted from a railway accident on the 28th of June, 1890, as to what her condition of mind would naturally be on the first day of July, following? ”
Over objections he gave the following answer :
“I can only give an opinion in a general way. The majority of cases in that condition, at so short a time after the injury, with an injury of that character, would be in that condition of mind which we recognize as hysteria, and physicians would consider a patient-”
‘ ‘ What do you consider ? ’ ’
The witness then gave this further answer :
“ My own opinion would be that any lady suffering with hysteria would be unfit for the transaction of business.”
A motion to strike out the answer was refused. He was thep. asked to give his definition of hysteria, and replied as follows :
“Hysteria is that effect upon the nervous system which produces, by reflex action, an effect upon the brain of vacillation, hallucination and imaginations of different characters, and is the result of irritation of the uterine walls. There is such a thing as hysteria without uterine disease.”
This testimony was clearly objectionable and prejudicial. One of the principal contentions in the case related to the mental condition of the plaintiff at the time the release was signed, July 1,1890. She claimed that, by reason of the pain she was suffering and of the medicine administered to alleviate it, she was incapacitated to transact business, and had no recollection of having signed the paper nor of anything that occurred on that day. A great deal of evidence was introduced to the effect that she was conscious and composed, and was then in the full enjoyment of her mental powers. Doctor Lemon had not seen Mrs. Lovelace at the time the release was signed, nor for more than 18 months afterward. It was competent for him to testify in regard to her condition when the examination was made and to give his opinion, if such testimony was necessary, whether her condition at that time and the pain she was suffering, were the
There is cause, however, to complain of the finding of the jury that the signature of Mrs. Lovelace to the paper of January 16, 1891, was obtained through the false and fraudulent representations of Robinson for the purpose of cheating and defrauding her. Robinson was an attorney of the Company, and the paper was prepared in his office and in her presence. She stated that, after it was prepared, she had ample opportunity to read it, and that she could read ordinary writing. Her testimony is that he left it on the table in front of her with the remark— “ Sign this receipt!” There was no attempt to conceal the contents of the paper in any way, and she did not claim or testify that Robinson made any statement of its contents; nor does it appear that she was hurried into signing it. If her testimony is taken as true, it
The principal objection is that there was not a sufficient showing of diligence on the part of the Company to obtain the testimony. Great diligence was not shown, but, in view of the fact that the newly-discovered evidence consists largely of statements-made to third persons and of conduct in their presence, it may be deemed sufficient. It may be that those in charge of. the case for the Railway Company had no reason to suspect that such statements and acts had occurred or were available as testimony, and the attorney of the Company swears that he had no-knowledge of such matters or facts or of the witnesses until after the trial of the cause, but that facts were-developed on the trial and on the cross-examination of the plaintiff which gave a clew to the new facts-that have since been discovered and are contained in the affidavits. In view of the great materiality of the evidence, and the fact that the case was instituted and tried in a State other than where the accident occurred and where the plaintiff below resided, we think a sufficient showing was made, and that a new trial should have been granted.
The judgment of the District Court will be reversed, and the cause remanded for a new trial.