Summary
In Lucas v. Southern Ry. Co., 1 Ga. App. 810, 57 S.E. 1041, 1042, the Court of Appeals of Georgia held that in 'inspector' cases there was no distinction between latent and patent defects.
Summary of this case from Wood v. Kane Boiler WorksOpinion
12933
June 6, 1930.
Before TOWNSEND, J., Lexington, March, 1929. Affirmed.
Action by Mrs. Lizzie Lucas, as administratrix de bonis non with the will annexed of the estate of J.O.B. Lucas, deceased, against the Southern Railway Company. From a judgment on a directed verdict for defendant, plaintiff appeals.
Judge Townsend's decree was as follows:
This is an action brought by the plaintiff to recover a balance of three thousand dollars claimed to be due upon a written contract made in writing between the plaintiff and the defendant railway company on the 29th of September, 1924.
The plaintiff offered in evidence, to prove the alleged contract, a mutilated copy of a writing, a mutilated writing on a form No. 1605, marked by the stenographer, as Exhibit No. 1, and bearing the mark and initials of the stenographer as Exhibit No. 1. The plaintiff claims that that paper showed a completed contract between the plaintiff and the defendant for payment by the defendant to the plaintiff of the sum of five thousand dollars to the plaintiff in satisfaction for the fatal injuries received by J.O.B. Lucas, the husband of the plaintiff, thereby causing his death, and also for injuries to an automobile and its contents, personal property belonging to the estate of the said J.O.B. Lucas, of which estate the plaintiff was the executrix at the time of the alleged agreement of settlement.
The papers offered in evidence to show the alleged settlement consist of a printed form of release, with the blank spaces filled in in writing by long hand, but from which the first word of the amount to be paid or called for and recited in the portion of the release were obliterated before the paper was offered in evidence.
The plaintiff claims that at the time the paper was signed by her on the 29th of September, 1924, and also on the 10th of October, 1924, when she signed another release, that this paper contained a recital of five thousand dollars as the amount to be paid the plaintiff as executrix by the railway company, and she further claims, however, that before she signed the release, dated October 10th, 1924, that J.D. Bookter, claim agent of the defendant company, tore up this paper dated September 29th, 1924, and now offered in evidence, by tearing it into pieces and throwing it upon her floor or in her fireplace, with the intent to destroy it, claiming that it was incorrect in some recital, and that after this paper was torn up, in an attempt to destroy it on the part of Mr. Bookter, that it was torn up by Mr. Bookter in her house and that she signed the release and endorsed the draft in evidence, which release is dated October 10th, 1924, and was witnessed by the cashier of the bank in which she deposited that draft for collection.
Now, as to the effect of the paper dated September 29, 1924, now offered in evidence, it is a dispute in the evidence as to what was the amount recited in this paper to be paid to the plaintiff. She and her brother, now claiming that this paper contained a recital of five thousand dollars, and this testimony on their part is denied by Mr. Bookter, which would raise an issue of fact as to the contents of the paper at the time of its destruction; but the paper being a written instrument, it is the duty of the Court to construe it and its effect, if it contained a recital of five thousand dollars, as contended by the plaintiff.
A reading of the paper on the first page, there is a formal release, under seal, of Mrs. Lizzie Lucas as executrix of the estate of J.O.B. Lucas, deceased, dated September 29th, 1924, and witnessed by W.F. Turner, her brother, and also a formal release for the money to be paid or a formal receipt for the money to be paid under the release, signed by Mrs. Lucas as such executrix, with the same witnesses; but it is admitted that no money was then paid, and immediately below the release is a blank space left with the words "approved for payment," and a blank line, and under that the "comptroller," showing that the paper, if accepted, that it should be approved by the comptroller, or someone else before it should be paid.
Therefore, I hold that upon its face it is an incomplete written instrument, and shows no completed contract in writing, binding the defendant Railway Company to pay the amount recited therein. On the other page of this paper, dated September 29th, 1924, is an unsigned copy of the release with a place for approval by various officers, agents or attorneys of the Railway Company, with a statement "correct," and signed by J.D. Bookter, claim agent; and I construe the meaning of the signature by Mr. Bookter to mean that the amount proposed to have been paid in settlement of the claim therein referred to is, in his opinion, correct; but such endorsement by Mr. Bookter did not make the claim payable by the Railway Company before it should be approved for payment by the comptroller or other officer of the company, as contemplated on the other page at the foot of the formal release executed by Mrs. Lucas.
This paper amounts, in effect, to a proposition of settlement made to the Railway Company by Mrs. Lucas, in which she offered to settle the claims therein referred to upon the payment to her of the amount of money therein stipulated, but the offer was to be approved for payment by someone on behalf of or acting in behalf of the Railway Company before it would amount to a completed agreement or settlement, as alleged in the complaint.
Therefore, I hold that there was no completed contract made in writing between the plaintiff and the defendant on the 29th day of September, 1924, as recited in Exhibit No. 1, now offered in evidence. The paper offered in evidence shows an incompleted attempt to reach a settlement, but shows no settlement finally reached between the parties.
The evidence does show that a settlement or agreement in writing was reached when the paper marked Exhibit No. 6, and being in the nature of a formal release in the amount of two thousand dollars, dated October 10th, 1924, and signed by Mrs. Lucas as executrix, and at which time she was given by Mr. Bookter a draft upon the Railroad Company for two thousand dollars, which she endorsed and collected through the Bank of Pelion, depositing it in that bank for collection on that date, and actually collecting the money a few days thereafter, and leaving it in the bank for some period, about one year, or perhaps longer.
Now, the plaintiff claims that she is not bound by the agreement of settlement which she admits she signed on the 10th of October, 1924, for the reason that her signature to such release was procured by fraud or false representations on the part of Mr. Bookter. In support of this allegation she testified that Mr. Bookter told her at the time she signed this paper that it contained a recital for the payment of the same amount as the paper signed on September 29th, 1924, and that the reason that he wanted a different paper made on the 10th of October was because of some mistake in the recitals of the paper dated September 29th, 1924, which he undertook to tear up and destroy in her presence. She claims that Mr. Bookter then represented to her that in addition to the two thousand dollars to be paid upon the signing and delivering of this release dated October the 10th, 1924, she was to receive a further sum of three thousand dollars at some indefinite time in the future.
The plaintiff is a woman of mature years, according to her testimony; is in the fifties. She testified that she is now fifty-eight years old, which would make her fifty-four years old at the time the paper was signed; she said that she was nervous and in ill health, due to some operation which she underwent some twenty years ago. She had every opportunity at the time she executed this paper in the presence of Mr. G.L. Taylor, the cashier of the bank, to know its contents. She said they told her it was a receipt for two thousand dollars.
She had the opportunity, also, of knowing that the receipt recited a payment in full for the injuries therein referred to and reliance upon the alleged promise of the agent to make a further payment of a further amount at another time, which promise was, according to her statement, parol or oral, and not supported by any evidence in writing was such gross negligence on her part as should estop her from now claiming that the receipt of the two thousand dollars and the signing of the release given on the 10th of October was procured by fraud, and the evidence of fraud is insufficient to make out the charge of fraud or to require its submission to a jury.
After the receipt of the money on October 10th, 1924, under this receipt, it appears from the evidence, that the plaintiff made her accounting as executrix to the Probate Court and received her final discharge in 1925, without informing the Court of any continued right of action under the release, which had been signed in October before, and without asserting any right or any outstanding contract or contracts on behalf of the estate. Now, if there had been a cause of action then existing of the estate at the time she asked for her discharge, she should have mentioned it if she knew of it; if she did not know of it, upon discovering such cause of action to exist, she would have the right to apply to the Court of Probate for letters de bonis non, in order to assert her right of action under such contract, if she was ignorant of it at the time she received her letters of dismissal; but she could not have been ignorant of the right of action sued on if it then existed and was based on a contract which she alleges was made by her personally.
So I must conclude that if there was, that if she could show that she did have a contract for the payment of a further sum beyond the two thousand dollars which she received at the time she asked for and obtained her letters of dismissal as executrix, that she waived any right of action under such contract by applying for her letters of dismissal. The testimony fails to show a complete contract between the parties prior to the agreement signed on October 10th, 1924, and the evidence being insufficient to carry the issue of fraud in the procuring of the release of October 10th to the jury, I hold that that settlement was binding upon the plaintiff and therefore, the motion for a directed verdict in favor of the defendant should be granted.
And it is so ordered. Mr. Foreman, I will write out the verdict in favor of the defendant for you to sign under the direction of the Court.
Messrs. Martin Sturkie and Buford Jackson, for appellant, cite: Issue of fraud in obtaining release was for the jury: 123 S.C. 199; 149 S.E., 271; 123 S.C. 325; 93 S.C. 537; 90 S.C. 454; 141 S.C. 98. Gross negligence as estoppel was for the jury: 143 S.C. 444; 96 S.C. 107; 57 S.C. 507; 34 S.C. 464; 93 S.C. 398. Discharge as administratrix not waiver of right of action: 123 S.C. 255; 24 S.C. 398. Waiver for the jury: 107 S.C. 396; 104 S.C. 404; 104 S.C. 35.
Messrs. Frank G. Tompkins and George B. Cromer, for respondent, cite: No evidence of written contract: 141 S.C. 524. When settlements will be set aside for fraud: 23 R.C. L., 417; 131 S.C. 12; 136 S.C. 499; 55 S.C. 508. Plaintiff barred by gross negligence and laches: 62 S.C. 88; 106 S.C. 312.
June 6, 1930.
The opinion of the Court was delivered by
This is an action for damages for an alleged fraudulent breach of contract. It appears from the record that on August 12, 1924, the plaintiff's husband, one J.O.B. Lucas, while riding in a Ford automobile, was killed in a collision with one of defendant's freight trains at a public road crossing near Pelion, in Lexington County. Lucas left of force a will in which the plaintiff was named as executrix. She qualified as such and, after having administered the estate, was duly discharged. Thereafter, on April 30, 1928, she was appointed administratrix de bonis non, cum testamento annexo of the estate of her deceased husband, and as such administratrix she then brought this action for the exclusive benefit of herself, as the widow of Lucas, no child or children having been born to them.
The complaint alleges that on September 29, 1924, a few weeks after the death of Lucas, the defendant, through its authorized agent, made with the plaintiff a contract in writing to pay her the sum of $5,000.00 in full settlement for the wrongful death of her husband; that the agent thereafter told her that he had spoiled the written contract; that he then, acting within the scope of his authority, by false statements and fraudulent representations, caused her to sign another contract providing for the payment of only $2,000.00; and that the railroad company took advantage of her weak mental and physical condition, which was known to it, and imposed upon her, for the purpose of cheating and defrauding her out of $3,000.00. She asked judgment for that amount.
The defendant, answering, set up a release, which had been executed by the plaintiff on October 10th, 1924, for a paid consideration of $2,000.00 as a bar to the action, and pleaded further that no part of the release money had been returned or tendered back to the company.
The case was tried in the Court of Common Pleas for Lexington County March 25, 1929, before Judge W.H. Townsend and a jury. At the close of all of the testimony the Court directed a verdict for the defendant on the ground (1) that there was no completed contract in writing between the plaintiff and the company to pay her the sum of $5,000.00, as alleged in the complaint; and (2) that there was no evidence to take the case to the jury upon the issue that Mrs. Lucas was induced by fraud on the part of the defendant to accept $2,000.00 and to execute the release of October 10th, 1924.
The questions involved in plaintiff's appeal are covered by and are properly disposed of by Judge Townsend's order, which will be reported. We are satisfied, from a very careful examination of the record, that the defendant was entitled to a directed verdict on the grounds named.
The judgment of the Court below is affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE and CARTER concur.