Logan v. United Railways Co.

REYNOLDS, P. J. (after stating the facts). — - The errors assigned by counsel for apepllant are: First, to the overruling of defendant’s demurrer to the evidence on the ground assigned that there was no evidence of any probative value tending to show — 499 — that plaintiff was of unsound .mind at the time the release in question was executed, it being argued that her bald statement, to the effect that she did not know she had signed it, is so outrageously against the conscience that it raises no issuable fact; second, that the court erred in excluding the question and answer before set out as asked the plaintiff, which, to repeat it, was, “Mrs. Logan, your separation from your husband grew out of his habits of drink, didn’t it? A. Tes, sir.” The third assignment of error is that the court erred in giving plaintiff’s first instruction. The fourth is that the verdict is excessive. We are unable to agree that the first assignment is tenable. A release, “when fraudulently or wrongfully procured from plaintiff, ’ ’ can be attacked by the reply, as provided by section 1812, Revised Statutes 1909, or, as held by the Supreme Court in Berry v. St. Louis & S. F. R. Co., 223 Mo. 358 (122 S. W. 1043), where at page 369 the remarks of Judge Marshall in Courtney v. Blackwell, 150 Mo. 245, l. c. 278, 51 S. W. 668, are quoted approvingly, and as intimated by our court in Carroll v. United Railways Co., 157 Mo. App. 247, l. c. 295, 137 S. W. 303, it may be set up as an anticipated defense in and by the petition and there attacked. Taking up plaintiff’s own testimony as to the accident and her description of her acts and mental condition immediately subsequent to it, and on the day following, on which latter date this release was signed, as well as the undisputed testimony of the physician as to her nervous condition, for a long period following, we see nothing to warrant us in holding that her testimony, that she did not know she had signed the release, “is so outrageously against the conscience it raises no issuable fact.” To the contrary, we see nothing improbable in it. If we did think it improbable, we are concluded by the verdict of the jury, who, under very carefully drawn instructions as to that issue, found against the defendant. — 500 — This is not such,a case as those referred to in Spiro v. St. Louis Transit Co., 102 Mo. App. 250, 76 S. W. 684; Lomax v. Southwest Missouri Electric R. Co., 119 Mo. App. 192, 95 S. W. 945, or Lange v. Metropolitan St. R. Co., 151 Mo. App. 500, 132 S. W. 31. In the Spiro and Lange cases the court was dealing with physical facts. In the Lomax case the court (1. c. 198) said, “The charge of fraud should have been supported by satisfactory evidence and not left to rest, as here, upon mere surmise and conjecture.” In the case before us, the evidence that the release had been procured from plaintiff “fraudulently” (using that word in its technical sense) or “wrongfully,” either of which is sufficient under section 1812 to avoid it, was supported by evidence that the jury certainly held to be satisfactory, and which we, as an appellate court, not seeing and hearing the witnesses who gave it, certainly cannot hold, in the light of that finding, to be either unsatisfactory or to rest on mere surmise and conjecture. Our court, in McClanahan v. St. Louis & S. F. R. Co., 147 Mo. App. 386, l. c. 409 et seq., 126 S. W. 535, on the authority of many cases there cited, has gone very far in holding that a verdict resting on testimony opposed to known physical facts cannot stand. Here we, as an appellate tribunal, are, and the jury and learned trial judge were, dealing, not with physical facts but a mental condition. The plaintiff described her mental condition, more accurately, her lack of conscious mentality, very fully. The existence of that mental condition must rest so entirely in the statements of the party so affected that it is difficult for a third party, an outside party, to undertake to enter into it; in truth, it is impossible to do so. It is so far subjective and personal that the establishment of it one way or the other rests almost entirely pn the credit that is to be given to the party so testifying. In the case at bar the plaintiff was before the jury; so was the agent of defendant. No — 501 — one who was present when the agent claims to have had the conversation with plaintiff testified as to that conversation. The subscribing witness was called in and all she testified was that when asked to do so, she signed her name as a witness. The truth of the matter lay between plaintiff and the agent. The jury heard both; saw them; had the opportunity to weigh the testimony of plaintiff and to contrast it with the testimony given by the claim agent. They had before them the testimony of the attending physician as to the high nervous tension under which plaintiff labored immediately following and for a long period after the-accident. They were properly instructed by the court as to the facts necessary to overthrow the release, not only by instruction given at the instance of plaintiff but by the very clear one given at the instance of defendant itself. Hence this question of mental condition, that is, of sufficient mental condition to know and understand what the plaintiff was doing at the time the release purported to be signed, having been properly submitted to the .jury, its solution was with them, subject to the controlling supers vision of the learned trial court. We are unable, if we were even disposed to do so, to disturb the finding on.this point for this reason. We are unable to concur with the contention of learned counsel for appellant as to their second assignment of error, that the exclusion of the testimony of plaintiff that the separation from her husband grew out of his habits of drink, is reversible error. When the court struck out. the answer which plaintiff had given to this question, the matter ended there. While it was possibly error to have excluded this answer, we cannot believe that its exclusion under the circum- ' stances affected the verdict of the jury to such an extent as to demand either reversal or cutting down of the amount of damages awarded. The jury fixed the damages at $800. Counsel, for appellant contend — 502 — that even if respondent was entitled to recover, $100 would be more than ample remuneration for any injuries sustained. Even if the answer of respondent, that her separation from her husband grew out of his habits of drink, had been permitted to stand in connection with the testimony of the physician that difficulty with her husband might have contributed to her nervous condition, there was no offer or attempt to show when that difficulty occurred or how long it continued; whether before or after the confinement of respondent in the hospital. All that the physician said when asked if the nervous condition of respondent might be due to either a mental or physical condition, was, “In a general way, yes.” When asked if the evidence showed that Mrs. Logan had had considerable difficulty with her husband, growing out of his habits of drink, and had been separated from him, whether that could not have a tendency to make her depressed and nervous, he answered, ‘ That would be a matter of opinion; I would say yes that it could.” We do not think that even with the answer of respondent remaining, the jury would have any substantial facts warranting them in assuming that this respondent was in truth rendered so nervous from her domestic relations as to send or keep her in the hospital ; not even that this contributed to her then condition. The third point argued by counsel is that the first instruction allowed a recovery on account of the continued explosions and for failure to bring the car to a stop, “when there was absolutely no causal connection between the continued explosions and the failure to bring the car to a stop.” The fairest way to answer this is to summarize that instruction so far as it relates to the facts of the accident. It, in substance, told the jury that if they found that while plaintiff was a passenger on the car there were sudden, violent and unusual explosions in the — 503 — controller box; that these explosions were followed by flames, fire and smoke in the car; and that the explosions, flames, fire and smoke were snch as to fill with terror of immediate injury or death any reasonably prudent person who was a passenger upon the car; and that plaintiff became so alarmed and filled 'with fear and terror of immediate injury or death, and was injured by being thrown and pushed between the seats of the ear while 'endeavoring to escape from such apparent and immediate danger, along with other passengers in the car similarly alarmed and likewise endeavoring to escape therefrom; and that the agents and servants of defendant, in permitting said explosions, flames and smoke to continue for the time mentioned in the evidence — if the jury believe they did so permit — or in failing to bring the ear to a stop before the time mentioned in the evidence — if the jury believe they so failed- — were guilty of negligence, “that is that they did not exercise therein the highest degree of care and skill that could be reasonably expected of prudent and skillful men under the same or like circumstances,” and that plaintiff sustained the injuries as theretofore defined, as a direct result of such negligence of said employees —then plaintiff could recover unless the jury found that the release prevents her recovery. The instruction as to the release followed and is not complained of as to form. We see no occasion to condemn this instruction; it was based on substantial evidence and is within the petition. We cannot' agree that there was no- causal connection between the several explosions and the panic; between these explosions, the fire, smoke and alarm and the alleged negligence in failure to stop. As to the fourth point made, that the verdict is. excessive, we do not think, in the light of the testimony as to thei character of the injury, the amount of expense to which plaintiff was put, her earning ca — 504 — pacity, her present condition, that this verdict is excessive. On consideration of the whole record in the case we find no reversible error. The judgment of the circuit court as heretofore ordered is affirmed. Nortoni and Caulfield, JJ., concur.