*1 fluencing tbe jury to inflict penalties. tbe lesser of tbe two Tbe in- of tbe structions insanity court covered tbe issue of well as tbe as other' jury issues involved. The verdict of tbe these determined court, issues under tbe instructions from tbe Tbe facts adduced. nevertheless, authority, retained its long at least so tbe term con- tinued, grant set aside tbe verdict and a new trial defendant any error, including correct jury action of tbe tbe re- deemed passion sult of or prejudice, or, 3707, supra, might under Section punishment jury opinion, reduced tbe assessed tbe of tbe ought ease, greater under tbe circumstances of tbe than to be proof upon inflicted. There is not one iota of substantial which to rejection an base even inference that plea the court’s defendant’s legally tbe resultant prejudicial followed trial was to defendant.
Under these circumstances point against we are constrained rule tbe defendant.
Defendant our alleged directs attention to no other error tbe find no proper. record We error therein. It information, shows an good charging form substance, tbe offense of murder in tbe degree duly filed, arraignment first tbe defendant, upon trial tbe information, being present, impaneling swearing tbe jury, verdict, complying tbe tbe law, return tbe with tbe into court, open accorded, judgment allocution and sentence. presented consideration of issues
After a with tbe utmost solici- examination into and a deliberation tude and them under resting responsibility upon us, of tbe deep sense we conclude de- protection tbe full law. fendant was accorded tbe judgment Cooley Westimes, (7(7., affirmed. Tbe concur. foregoing opinion by BohliNG, C.,
PER adopted CURIAM: Tbe judges opinion of tbe court. All tbe as tbe concur. of execution set December
Date 1936. of The Order of at the relation Missouri United Com State Corporation, Petitioner, America, Travelers mercial Hopkins Ewing B. C. Bland, Shain, H. Trimble Francis Appeals. Judges the Kansas Court 597. Two, 17, 1936. Division November *2 Martin & Montgomery Montgomery, petitioner.
Fred, Wesner, F. respondents. F. M. Boss and E. W. Jones for WESTHUES, quash C. Relator seeks to and record of the Kansas Appeals Court of in the case of Jackson v. Order America, United Commercial in 89 reported Travelers Judge 536. It will be noted that dissented. Relator al BlaNd leges controlling respondents that the is in conflict with the opinions opinion, in respondents’ of this court. It is asserted that holding that there was sufficient evidence of to avoid release *3 in compromising claim, opinions a is in conflict with of this court in City 315, 166 l. c. Louis, 332, cases of: McCormick v. St. Mo. of 65 223 1038; City Telephone Co., S. W. Wood v. Kansas Home Mo. 557, 6, 12; McCoy 123 c. T. McMahon S. W. l. James Company (Mo.), 216 S. 770. asserted that
Construction It also question might be respondents’ opinion, holding that the release by tendering received, back consideration avoided Jackson without following is in with this court: Wood v. decisions of conflict 6; McCoy 123 Kansas Telephone Home 770; 216 W. Bush (Mo.), S. v. James B. Co. McMahon Construction L. 257, 36 R. A. Loomis, nell v. Mo. l. c.
(N. S.) 1029. com- relator, plaintiff sued
Jackson, case, in that disability by caused covering total pany, policy on a of insurance necessary court, asi insofar in the trial accident. The issues tried Appeals as by Court of case, of were stated purpose for the follows: ‘‘ of the contract with all terms duly compliance plaintiff The avers term per week for a $25 benefits of and makes claim as entitled to and effected of by bodily injury as a result of weeks reason of and alone means occasioned through violent, external, accidental and independent of all other causes. pleaded full answering petition, plaintiff’s defendant, “The pleaded pay- and policy arising under of all claims settlement acceptance a full pleaded and $600 said settlement ment plaintiff. acquittance and full on is due condition plaintiff’s makes claim “Defendant further forth sets alone, and accident hemorrhage not to to cerebral date of by-laws effective provisions of the Constitution alleged as sustain- May 1933, which are accident, to-wit, alleged
ing liability defendant’s claim nonliability. .Defendant also denies based failure of notice. plaintiff, in reply, estopped, mates claim that
by reason of its investigating conduct in mating partial payment, plead the provision by-laws concerning and Constitution written notice tbe forming accident plaintiff’s basis claim. Plaintiff further allegations acquittance denies as to settlement and pleaded1 further purporting instrument com promise exist, wrongfully by settlement did procured same were fraud, voluntary misrepresentation, and will consent plaintiff representations reason of threats and deceitful made agents. defendant and its
“In words, pleaded the elements modern duress are and the reply by plaintiff. is subscribed and sworn to jury. plaintiff
“Trial was had before Verdict was for the Judgment conformity verdict, $2000. sum of was entered in duly appealed.” and the defendant dealing questions fol- opinion,, us, with the before contains the
lowing law: conclusions of fact and fully did
“There is the effect that evidence shown to thirty days regain period control mental for a over of his faculties evidence, taken its after when the accident. We conclude that posi- plaintiff’s aspect him, is sufficient to sustain most favorable question . . . tion on the of notice. raises a
“We that the evidence in this case conclude contributed to injury caused or plaintiff’s fact to whether the hemorrhage. cerebral is no 3, supra. There give subtopic next consideration “We *4 liable for liability stood if attached to defendant it but doubt what $2600. genuine bona fide that a the effect defendant’s statement to
“The
agent’s action
correspond
the
to
dispute existed does not
position is
Defendant’s
by him.
used
premises nor to the words
with actions
replete
liability
record is
is
denied.
the effect
may
which
agent, from
the
of defendant’s
and
conduct
disturbing
liable and
company
that he did consider
inferred
get the
in- an endeavor
man
and weakened
quiet
a sick
liability reduced.
Casualty
Fidelity &
v.
in Harms
said
that what was
“We conclude
herein.
application
has
157 S.
Co.,
App.
as
accepted and
given and
consideration
valuable
“As to the
suit,
bringing
qw
prerequisite
statu
as
question
of restoration
necessity
concerning
urged by defendant
general doctrine
been obtained
has
contract
a voidable
quo, where
restoring
statu
in
defined
is well
Missouri
fraud,
doctrine
an accredited
is
Metropolitan Paving
v.Co.
Brown-Crummer Inv.
“A different rule than the above comes into consideration, where fraud or procurement duress enters into of a release. In a such case the tender back of the necessary. consideration is not v. [Hannah Butts, App. 1098, 31.] “To a full question, consideration of the above a consideration of defendant’s subtopic necessary. four is plaintiff on the issue compromise settlement claim makes
of duress. appears “It agent that defendant’s secured what claims as whereby settlement, paid plaintiff $600, plaintiff wherein executed acquittance documents in full all claims money and received the and has made no tender of back same to de- fendant.
“The common-law doctrine of duress is force Missouri as modified courts, modified, decisions our as so and, duress any degree includes which constraint is to affect the mind sufficient person ordinary of a firmness, and includes the condition of the wrongful mind as affected conduct of another which renders person incompetent power. of his will to contract the exercise question exists, “As the now of fact in each particular 310; J., 13, page par. case. vol. Wood Kansas [C. Telephone Home Co., Mo. 6.] agent “There evidence in this that defendant’s case to effect suffering sick, injury,
visited plaintiff, while from his and was weak, nervous, agent plaintiff told and that defendant’s disturbed given plaintiff required that he time and was had not notice Further, agent out. that he had no claim and told jury give anything. him could find Missouri that would following' questions are testimony, “In plaintiff’s the course of shown asked and answered: “ ‘Q. you? he say pay A. He told me What did he he would pay would me six dollars. hundred “ ‘ take Q. I could either say What ? A. He said did he about that go in He nothing than court. six hundred all rather dollars or at I him fight I told anything in the ease said have court to didn’t fight I I there sick. I was able would the case but was “ ‘Q. what he did you? A. I recall What tell don’t else did he if I dollars hundred say in favor of but he told me he would be six signed I broke and sign I there sick and would the release and was and didn’t I attention release because owed for medical *5 ’ money my and care. owed sister testimony an issue of to raise “We sufficient conclude there was duress. “In topic defendant’s 5, the directly- tender back is n
presented. closely This topic is so previous topics allied with the discussed that what is applies therein said and enters into' our con- nn clusion presented as to the point in topic. said upon
“Based premises our and conclusions we above, conclude that- a return prerequisite $600 of the bringing was not a plaintiff action. “In the parties herein,-questions briefs of the of waiver and-
estoppel presented. are we expressed As have reached and the con- that plaintiff clusions there evidence of conditions that excused is. delay for the questions -of notice the proofs, estoppel waiver are not material to the issues before us. ' clearly “It is plaintiff shown the record this ease that the presented upon theory hemorrhage his case the that cerebral no' way way was the in no contributed to the accident caus- cause ing plaintiff’s injuries. hand, On the the is other shown upon theory have presented its defense the cerebral hemorr- that hage contributing wás was either the direct cause cause the injury. accident and theory, than has above,
“Further the defendant advanced that, contract, to effect re- upon interpretation based its of the gardless recovery had the contract caused, how could be no hemorrhage if a cerebral resulted. above, is inconsistent
“As we that defendant conclude liability, by reason of the is no presenting that there defense failing if in' hemorrhage accident, fact cerebral caused that (cid:127) hemorrhage was one of the deny liability that, cerebral because results of the accident. ambiguity in that language presents contract paragraphs in later coverage results clause insures conditions, al- liability to
by-laws restrict its attempts to apparently coverage clause. forth' though very means set by the caused ‘‘ the restric- concluded repugnance, we have In to avoid order occasioning of the at causes for or directed restrictions tions are effect thereof. accident, and as to the contracts, wherein the case in frequently the “As is contract, the of the volume greater compose restricting clauses circumstances, questions. such Under perplexing presents at bar case harmonize, possible. duty to our it becomes above, discussed interpretation, question of “In addition presented there conclude We phase. another presented jury could wherein herein, evidence fact issue of disability theory his total found for the hemorrhage. cerebral injury than was due to *6 upon “Based foregoing, tbe we conclude that there was an issue presented of fact jury for the and that was not error to refuse the peremptory by instruction offered defendant.” It obvious, is by as opinion, disclosed the that relator was denying liability policy under the upon grounds: two First, that Jackson, insured, give the did not alleged injury notice of the with by the required time policy; terms second, Jack that son’s condition was due to a cerebral hemorrhage, and alone not due accident, by and therefore not covered the policy.
The Court Appeals held that both questions of these evi- dence was introduced so as to jury. make an issue Upon fact for a the first timely it was conceded that given by notice was not Jackson to the company, but Jackson contended he was ex- that cused because existed, condition. therefore, his There a bona fide dispute between compromise Jackson and as relator a basis for a therefore, If, settlement.' compromise release by was a and a by Jackson it was supported attorneys consideration. valuable The for Jackson, representing respondents here, urge that had liquidated .a claim, partial payment relator, and therefore a thereof release, under the was not a consideration and release was void. nothing There is opinion apparent claim. to sustain It is this notify conceded Jackson failed relator within the time required by policy. liability. policy Such failure avoided The provided: furnishing notices, proofs proofs,
“The final preliminary or recovery provided precedent as hereinbefore is a condition any notices, preliminary give proofs failure furnish final therefor, within the time limit proofs, required, as hereinbefore each any against act all claims Order shall as a forfeiture of and such claim be such failure.” shall forfeited that, thereof, The made the writer statement, contains a of de- conduct on the replete with actions and record consider may that he did agent, which it be inferred fendant’s from disturbing quiet sick and aof company liable and was liability get the reduced.” weakened man an endeavor to could be from which it fact set forth The does not n company liable. agent of relator considered -that the inferred unable to physically he proof that Jackson had the burden opinion states respondents’ notify required, company say jury whether for the it was the evidence condition. account of his was excused Jackson Tel. Home v. Kansas In Wood following language taken from (5), approved l. c.15 court 220: Reilly Chouquette, that com- compromise ensues, disputed and a right “When a promise will disturbed, should turn out afterwards one parties of the right in had no law. principle Such a would overthrow all compromises. good of a doubtful claim is a con- ” sideration for a contract. It is apparent, therefore, from statement of facts made *7 by Appeals, the Court of that the settlement between relator and by Jackson was supported a valuable consideration. The now to holding, Appeals, considered is whether the the Court of that the support evidence in of the claim of duress was sufficient to make an jury, controlling issue for the is in conflict of decisions opinion this court. We are of the that there is a conflict. The evi respondents’ dence set in in support forth of the does any wrongful agent not reflect act part company of on of obtaining agent in dealing the release. All shows is company. represented with Jackson his He employer, any did not threaten Jackson with criminal or a civil suit. even Nor any he make except did inform Jackson that if he threats get anything. did accept $600 he would not Jackson offered testify signed Respondents’ did not that he the release duress. opinion quotes point Jackson’s evidence as follows:
“Q. you? say he tell A. I what he did What else did don’t recall sign $600.00 if I but he told he would be in favor of would me signed I I the release because broke, release and I was then sick and my any money and owed owed medical attention amd diicbn’t for my ours.) (Italics sister care.” sup of rulings Under the evidence falls far short of this court that charge “modern duress.’’ porting a of duress. Even of so-called 1038, 166 Louis, 315, S. case v. St. In the of McCormick 1043, 1044, said: l. c. this court ' accept of settlement plaintiff to the terms thing that forced any wise the result was not in in this case offered the defendant agents, but, as or its of of action conduct of the and con- himself, circumstances the result of was shown with which city control, had no the defendant over ditions which There financial necessities.’ connection, it had no concern —'his plaintiff was view, that legal point of nothing claim, from in the offer, receipt in full of the terms defendant’s accept forced under the performed done and labor all claims for work in the full act, done his free It was contracts. of their several terms knowledge of the in the premises, and light all facts of his act.” effect 12, l. 537, 6, 123 S. c. Telephone Co., And Wood 450, approved: was Cyc., page 9 taken from language, following that condi- includes cases, according class to this then, “Duress another, render- wrongful conduct of by the produced' of mind tion
911 ing person incompetent to contract with the exercise of his free will power, formerly whether relievable at law ground on the ’’ equity duress or in ground wrongful compulsion. says Note that “produced by wrongful conduct of another.”' respondents’ statement of facts in opinion does not even hint of any wrongful conduct on the agent obtaining relator’s
release from Jackson. In case, a recent Breneman v. The Laundry, 87 S. W. (1), we held evidence of a more serious nature, upon the issue duress, insufficient to sustain the duress charge.’ A respondents’ case cited in brief, Mississippi Valley Trust v. Begley, Co. S. 76,W. approved. In the Begley case there was a threat exposure forgery and criminal prosecution. correctly The court held the evidence was sufficient to sustain charge, the duress but the court approved case respondents’ doctrine with which page conflict. At paragraph theW., S. court said: nothing “There is in Wood v. Telephone Co., 223 Mo. W. 6, in conflict with the promulgated. doctrine above In that case *8 it was ruled that there was duress, no because the contract in suit was made under threat an ordinary of civil suit, which directly neither indirectly exposed nor the party any or his near deep to dis relatives grace prosecution distressing crime or other personal or financial circumstances, tendency which deprive had party entering into the in that quality 'case of free making mind page essential to the a contract. On 223 565, Mo., 13 123 page S. the court said the claim of in that duress Judge Graves Woodsworth, case was ‘womanish.’ Morse cites v. 155 250, 528, says: Mass. l. c. 29 N. E. where court “ ordinary suit, ‘It has often been held that threats of civil and of proceedings property ordinary per- are not because enough, voluntarily sons do not cease to act on account of such threats.’ ” dispose What we have said would be sufficient to of this case ruling appeal, if were here on because our means that the trial demurrer court have sustained a evidence because should pleaded was a bar to cause of action. But release Jackson’s this dealing question proceeding are with a con is a certiorari and we therefore, presented, the other must, dispose We also flict. controlling is, .respondents conflict de does Jackson, court, plaintiff, it is held that the was wherein cisions of ? the consideration obtained for release required to tender back not question if keep not a difficult we is a conflict. It is We think there only In but voidable. the case was not void in mind that the release 770, 216 W. 771, S. l. c. McCoy Co., T. McMahon Const. v. James question before it. The rule (1-5) (6), had this was 772 this court 912
so well quotation stated that case therefrom will be sufficient. Division One of this court said: signed-
“Counsel contend this was discloses release ‘under void, coercion,’ absolutely gives threats and the defend- ‘is ’ rights brought ant no whatever before suit or afterward. “ (a) might be law. Duress such to render a settlement void at compel signing The application actual the act of release force Ordinarily renders contract would constitute an instance. m void, duty put party the other voidable, arises to and the same avoiding quo statu in cases of fraud before the contract as exists 564, 563, Co., 123 treaty. 223 l. c. Telephone v. [Wood 382, 381, 257, S. W. 6; 234 Mo. l. 137 S. W. v. c. Loomis, Bushnell (N. S.) 36 R. A. . . . L. 1029.] the release was “(b) Upon appellant contends same evidence necessary. Be fraudulently was procured, therefore no tender applicable requiring becomes the rule tender before suit fore agreement never relied must a release. If the instrument required. Fraud law, can be at no tender existed fact or is void necessary. no tender is void, and renders the contract the factum merely and, voidable, absent some treaty renders Fraud ground rule, prerequisite tender is dispensing with the Co., App. 150 Mo. original v. Cement cause. action on the [Malkmus Boyer, App. l. c. v. 173 Mo. 148; 131 W. Putnam l. c. S. Co., 204 Mo. l. v. c. seq.; 861 Transit Althoff et 69, 31 W. seq., c. S. Ry., et l. 642; v. Och l. App. & c. seq.; Wessel v. Waltke L. 962, 36 R. A. et Railroad, l. 187 S. W. c. et seq.; Reid 17.] 190 S. W. tendency prove the upon has no testimony appellant relies fraudulently contents, induced ignorance of its signed release by respondent.” at bar. to the case language applicable This *9 question will, Appeals in Court opinion of The record and Bohling, Cooley CC., so ordered.
therefore, quashed. It is concur. Westhues, C., foregoing
PER CURIAM: The judges concur. All court. adopted as the