Alabama & V. Ry. Co. v. Kropp

92 So. 691, 129 Miss. 616

Opinion

Ethridge, J.,

delivered the opinion of the court.

The appellee, Lee Kropp, was injured on the night of the 29th of January, 1915, having his leg crushed, which necessitated the amputation thereof. At the time of the injury Kropp was a Avarehouse clerk in the service of the appellant, but Avas not .on duty at the time the injury Avas inflicted, which occurred at about eight o’clock in the evening. Kropp had gone home from his Avorlc, and, his wife being ill, had started to the Avarehouse to get a bottle ot medicine Avhich he had left there. Freight train No. 43 Avas coming from Meridian, and the appellee had crossed the main line and.was-Avalkrng betAveen the main line or commerce track and the house track Avhen said train passed. As the train came in he spoke to the engineer and continued Avalking up the AvalkAvay, but he either stumbled and fell or Avas struck by something and fell, and his leg fell on the track and was crushed. After the injury negotiations were pending between Kropp and the claim agent ol the railway company for a long period of time, that is, from shortly after the injury until the 28th day of October, 3915, when the company paid Kropp one hundred and twenty-five dollars and took from him the following release :

“In consideration of the sum of one hundred and twenty-five dollars, to me in hand paid by the Alabama & Vicksburg Railway Company, the receipt whereof is hereby acknowledged, I hereby release and acquit said company of all claims by reason of injuries sustained by me at Newton, Miss., on the 29th day of January, A. II. 1915, by having niv leg cut off by No. 43, the same being settled in full* of any and all claims I have against the said company arising out of, or in any way connected with, said injury or accident.

[Signed] Lee Kropp.

“Witness:

“H. T. Brooks.

“R. J. Jackson.

“Correct: W. M. Robertson, Claim Agent.

“H. H. Lb Roy, Auditor.

“Chargeable 1o Transportation. Subaccount, Inj. to Per. Freight. Amount, $125.”

The following was on the back of the. release:

“A. & V.

“Voucher No. 89046.

“$125.00

“Lee Kropp, Newton, Mississippi.

“Approved, Paid by S. Gray, agent, Meridian, A. & V. Ry. Co.

“Paid October 30, 1915, accoanting department.

“Reunited to credit, of S. Gray, agent A. & V. Ry. and N. O. & N. E. R. R.”

It is contended by Kropp that, in addition to the consideration recited in this contract of release, he was promised a position for life in the service of the company, but that the claim agent would not consent to place this agreement in the contract of release, and that the claim agent represented to him that it. ivas in violation of the law to place such a contract in the release or to make such a contract. It is also contended that the claim agent represented to the said Kropp that the company was not liable to him for the injury so inflicted upon him. Kropp further testified that after he recovered from the loss of his leg and became able to go to work he applied to the station agent at Newton, Miss., for his position, but that the agent told him that they had a man on the job who was older in the serv-icie and he could not be displaced, and Kropp waited until the employee so holding the job died, which occurred some 'time after the said conversation, when he again applied for the position, but that the agent did not give him the position. He testified that he did not take up the matter with the claim agent nor with any of the other officers of the company. This suit was brought on January 28, 1921, just one day before the six-year statute of limitations would have run against the claim had there been no compromise or settlement thereof. He did not prior thereto return or offer to return the consideration paid him on October 28, 1915. The suit was filed in the chancery court for the purpose of having the release canceled, and prayed also for a judgment'for the amount of his injuries. There was also a motion by the complainant for a jury trial, which was allowed by the chancellor over the objection of the defendant who insists that the question of cancellation was one for the conscience of the chancellor, and should not be submitted to a jury. The defendant also requested that specific questions be propounded to the jury to be answered by them, said questions presenting findings of fact on the various questions involved in the suit, which was refused by the chancellor. The cause proceeded to trial, and there was a verdict for the complainant, the appellee, for twelve thousand dollars, on which judgment wag entered, from which this appeal is prosecuted.

There are numerous assignments of error, but we deem it only necessary to discuss the questions as to the effect of the settlement and whether the written instrument evidencing the settlement can be contradicted or supplemented by an oral understanding of other considerations not mentioned therein, and also whether there Avas fraud practiced upon the complainant in procuring the settlement, and Avhether the evidence produced is sufficient in law to authorize the court to set aside the settlement and release on that ground, and also whether there was a ratification on the part of the complainant by reason of the long delay involved in the case on account of the lapse of time and'opportunity to make inquiry into the facts.

The cage for the appellee depends entirely upon his oavij evidence both as to the release and settlement and as to the facts relied on by him to constitute liability. He is contradicted on all points in the case by more than one witness. From January 29,1915, to the date of the release and settlement the complainant had full opportunity to learn both the facts and the law Avith reference to the liability of the company and his rights. To say the least of it, his right of recovery against the railway company Avas doubtful, and it was not improbable on the facts in the record that a jury might have decided the case against his contentions. He had full opportunity to learn all the facts and to learn the laAV Avith reference thereto. He insisted for many months upon a settlement Avhich would embody in it an agreement to give him employment for life in the service of the company. It appears from his own testimony that he had had this matter up Avith some of the superiors of the claim agent, and that they objected to making a settlement involving the contract to employ him for life. On the day before he signed the contract of release he had earnestly pressed the claim agent to embody such á stipulation in the contract, and the claim agent had distinctly and clearly refused so to do. It is clear from his OAvn testimony that he knew both the importance of having tliis stipulation in his contract and knew that it, Avas not in the contract and would not be placed therein. He knew exactly what the contract was at the time he signed it. The only question relied on to impeach this contract for fraud is misrepresentations as to law, and ordinarily misrepresentations as to law are not sufficient to authorize a rescinding of a contract or a mistake in reference thereto. There must be something in such case to show that one party has superior knowledge over the other in reference to that subject, and that that fact caused the other party to rely upon such statement. It is true that this court has said in Jackson v. Railroad, 76 Miss. 607, 24 So. 874, that it did not violate the. law or public policy of the state for the railroad company to make such a contract with the understanding and limitations laid down in that c^se. It is clear, however, from the evidence that the complainant had ample opportunity both before the execution of the release and subsequent thereto after being refused employment to learn his rights in reference thereto.

It was said in English v. N. O. & N. E. Railroad Co., 100 Miss. 575, 56 So. 665, that a release of the character here involved is contractual in its nature and cannot be varied by parol evidence. As to that release it was contended that there was also a promise to give employment in the service of the railroad on a verbal finderstanding, but the court held that the release was not subject to variations by parol evidence; that a stipulation in a writing which is contractual cannot be varied by parol evidence—citing Thompson v. Bryant, 75 Miss. 12, 21 So. 655; Baum v. Lynn, 72 Miss. 932, 18 So. 428, 30 L. R. A. 441; Cocke v. Blackburn, 58 Miss. 537.

As above stated, the only difference in the present case is the statements by the complainant that the claim agent represented it ivas in violation of law to place such a contract therein, and also that the claim agent claimed the railroad ivas not liable. The parties in the present case dealt with each other at arm’s length. There was nothing-in the situation of the parties giving one a right to rely upon the superior knowledge and skill of the other, and there was no fiduciary relation existing between the parties, and in our opinion the fact relied on to constitute fraud, even if proven, would be insufficient to set aside the agreement. We think, however, that the evidence touching fraud failed to meet the test required by law if it was sufficient to avoid the contract. In Alabama & V. Ry. Co. v. Turnbull, 71 Miss. 1029, 16 So. 346, the rule is stated in the first headnote as follows:

“One injured by a railroad company who, on a compromise settlement, releases his claim for damages, and after-wards, in* an action at law, seeks to avoid the release, must show by clear and convincing evidence that it was procured by fraud or misrepresentation such as would authorize its cancellation by a court of equity.”

In the case before" us the complainant’s statement in reference to the representations is contradicted by the positive testimony of two witnesses and also by the circumstances surrounding the transaction preceding the settlement at the time thereof and subsequent thereto. He is contradicted not only by other witnesses, but by the circumstances of the case. The statement of the rule in the Turnbull case imposes upon the complainant a higher standard of proof than he has furnished in the case, and it is not sufficient to say that the jury below found in accordance with its contention. It is not a case of a mere conflict between individuals, but it is a failure to bring before the court that clear, convincing, and satisfactory evidence that warrants a court of equity in setting aside a .contract. Again, we think that, if these views were not sound, it would have been the duty of i.he complainant to have learned the facts or malte reasonable efforts to do so and to have sought rescission of the contract because of the fraud within a reasonable time after he was refused employment. It seems to us that a reasonable man would have taken up the question with the claim agent or with the superior officers of the company when he was refused employment. If his version of the settlement be true, it would have been‘natural for him to have sought to place Mm,self upon the pay mil as quickly as possible and to have found out the reason why, and, if the contract was not lived up to, to have elected to rescind and sue for his damages or bring an action for breach of the contract within a short time thereafter. Having waited more than five years after he was entitled, to bo re-employed, and during all of that time retaining the funds received by the settlement, this warrants the court in holding that he had ratified the contract as written, and that it is "too late now to seek rescission. 4 R. C. L. 514, section 26.

Reversed and dismissed.