Atchison, Topeka & Santa Fe Railway Co. v. Coltrane

The opinion of the court was delivered by Porter, J.: The case comes here upon a transcript showing the pleadings, instructions, verdict, special findings, judgment and ruling on the motion for judgment on the special findings, without the evidence; and the single question to be determined is whether on the findings the defendant is entitled to a judgment in its favor. The findings show a case in many respects remarkable. The plaintiff claims to have received permanent injuries of a very serious nature, which have' [324] affected her brain and nervous system, impaired her memory, and disordered and crippled her for'life, rendering her unable to follow her usual occupation as a teacher. Her action was not begun until a few days before the statute of limitations had run against the claim. It is shown by the findings that the plaintiff is a woman of education, a graduate of the Kansas University, and that she was engaged for a number of years in teaching school; that after the accident and before she signed the release she was pursuing her usual vocation as a teacher, in regular attendance at - a teachers’ institute, riding to and from her home on a bicycle. It is apparent that the release was not obtained when- she was suffering pain or in distress by reason of her injuries and' therefore in a condition to be -easily duped into signing away her rights. The findings are that she wrote on each of the vouchers in her own handwriting, “I have read the above voucher and fully understand the same”; that by the exercise of ordinary care she could have informed herself of the contents of the papers; that as a part of the same transaction she indorsed the cheek given to her by writing her name on the back thereof before it was paid; that she was able to read the release; that her eyesight was good at the time, and she was in possession of her faculties; that she had an opportunity to read it before she signed it if she wished or desired to do so; that there was sufficient light in the room for her to see and read it, and that the agent was not urging her to use haste in signing. The release plainly states that it is in settlement of all claims or causes of action and demands whatsoever against the defendant growing out of injuries sustained by her while a passenger and caused by the rough handling of a train at Williams, Ariz. The claim is described as that of Ella D. Coltrane against the Atchison, Topeka & Santa Fe Railway Company. The receipt is the acknowledgment of the payment of the money by the company in settlement for injuries, and [325] there is nowhere in it a word to indicate that it is in payment of Pullman fare. There are two findings of the jury (Nos. 20 and 21) which say she was prevented from reading the release by the statements of Mr. Zimmerman, but none of the findings discloses what those statements were. In the absence of any testimony we can only construe these findings by the averments of the reply, which are to the effect that he stated that the paper or receipt was merely a voucher showing that plaintiff had received back her Pullman fare. The jury", however, in answer to question No. 8, found that when he delivered to her the draft or'check for $10.50 he made no statement that the same was given in payment of her Pullman fare. We are asked by the plaintiff to construe this finding to mean merely that the agent made no such statement at the exact instant when he handed her the draft, and to hold that the jury intended so to limit their answer; and it is argued that the general verdict carries with it a presumption that the jury further found the fact to be that at some other time during the transaction he .said to her that the draft was inténded to pay the amount of her Pullman fare. Obviously the jury could not have intended to draw such hair-splitting distinctions and separate the occurrence of matters which all took place during the three or four minutes occupied by the transaction. The language of the reply itself is that “at said time, with intent to deceive,” etc., he “stated, represented and pretended that the said paper, or receipt, was merely a voucher,”' etc. The reply further states that she signed the draft “as a part of the same transaction.” A written contract can always be explained or impeached by parol testimony, and should not be permitted to stand, where it is shown to have been obtained by fraud. (Shook v. Manufacturing Co,, 75 Kan. 301; Disney v. Jewelry Co., 76 Kan. 145; Railway Co. v. Peck, 79 Kan. 413.) But courts will not, upon [326] conflicting or uncertain evidence of fraud or mistake, lightly disturb agreements made in settlement of claims of this nature. In our opinion a release executed by an intelligent, educated person, Under all the circumstances disclosed by the findings, should require a substantial finding of some fact showing fraud or undue advantage before it should be set aside. In Deming v. Wallace, 73 Kan. 291, it was charged that the fraud consisted in inducing Wallace to sign notes and a mortgage. The evidence showed that the agents of the investment company urged him to be quick about signing, and that he was not given time to read the papers. There were other circumstances in that case which excused his failure to read and know the contents of the papers signed and which are wholly absent from the case at bar. In the case of Jewelry Co. v. Bennett, 75 Kan. 743, it appeared that Bennett’s eyesight was so defective that he was not able to read writing, and there were circumstances there which'in the opinion of the court justified his relying upon the statements of the agent as to the contents of the papers. In Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, where it was sought to set aside a written agreement of settlement and release, it was said: “The burden is always upon the assailant of the contract to establish the vice which he alleges induced it, and a b.are preponderance of evidence will not sustain the burden. A written agreement of settlement and release may not be rescinded for fraud or mistake, unless the evidence of the fraud or mistake is clear, unequivocal, and convincing.” (Page 914.) No fact was found by the jury indicating that any confidential relation existed between the agent and the plaintiff which justified her in relying upon his statements as to what the contents of the paper were. According to her own theory she knew when she signed the paper that it was contractual and in settlement of some kind of a claim or that it was a receipt of some [327] nature. Where the relations between the parties are contractual, and not confidential, it is generally the duty of the party to whom the statement is made to ascertain the truth, if he has available means of knowing the truth by the exercise of ordinary prudence and intelligence. The jury said, in substance, that the plaintiff had available means of ascertaining the truth by the exercise of ordinary prudence. She had every opportunity to read the paper before signing it, and it was her duty to do so; she wrote an express statement above her signature to the effect that she had read it, and in our opinion she ought to be bound by its terms, unless some fact is shown or found clearly indicating that her signature to it was obtained by fraud or mistake. It follows that the judgment must be reversed and the cause remanded, with directions to enter judgment in favor of the defendant.