Hartford Fire Insurance v. Kirkpatrick, Dunn & Co. , 111 Ala. 456 ( 1895 )

BRICKELL, C. J.

Appellees brought suit against the appellant to recover the amount of a loss from fire covered by a policy of insurance issued by appellant to appellees on their stock of merchandise.- The defendant (appellant) filed a general denial of indebtedness and of each allegation of the complaint; also pleaded payment and that the cause of action had been settled for $25 paid by the appellant to appellees and accepted by them in satisfaction of their demand, and that the policy of insurance was assigned and relinquished by appellees to appellant before the commencement of the suit. To the last two pleas the plaintiffs filed a replication which undertakes to set out in much detail that the settlement and the surrender of the policy was procured from Kirkpatrick, one of the partners in appellees firm, by one McDonald, an agent of the defendant, by means of false and fraudulent misrepresentations and duress by threats of arrest and imprisonment. To this replication the defendant interposed a demurrer which was overruled by the court below. The action of the lower court in overruling the demurrer, and in the giving and refusal of charges bearing on the questions, presents the principal matters for the determination of this court on the appeal.

We may, and do, dismiss all consideration of so much of the replication as sets up false and fraudulent representations on the part of defendant’s agent as ground for avoiding the payment and settlement pleaded by the defendant, for the reason that it is entirely obvious from the averments of the replication, as well as the testimony, that Kirkpatrick did not rely upon their truth and was not induced by such representations, to accept the payment of the twenty-five dollars or to assign and surrender the policy to defendant. Nor can the replication be treated as sufficiently averring duress of actual imprisonment as a ground for avoiding the settlement and relinquishment of the policy set up in defendant’s pleas. While it is averred that McDonald, after entering his room at the hotel with Kirkpatrick, locked the door, there is no allegation of threats that such imprisonment would be continued unless Kirkpatrick should accede to the settlement and surrender the policy, or that the arrangement was yielded to by Kirkpatrick in order to obtain his release from the room.

The replication, therefore, stripped of these features and tested by the demurrers, presents the single question whether its averments sufficiently make out a case of duress from threats of imprisonment to avoid the settlement relied on by the defendant in its pleas, and the same question is also reserved by exceptions to the charges given and refused by the court.

It Is a universal rule that if a party, for a valuable consideration, compromises and settles a disputed demand he cannot thereafter maintain a suit thereon on any ground that would have originally supported the action. This general rule, however, is subject to qualifications, and, among other exceptions, it has no application where such compromise and settlement are the direct result of fraud, or of duress of property or person, employed by the opposite party, or some one acting in his behalf; in as much as the law in its high and just regard for the contractual rights of parties will not permit any contracts to be binding but such as are made by persons who are entirely free to act in making or refus- ' ing such contracts.

In the form in which the case is before us the material inquiry, as we have said, is, whether the plaintiffs’ replication to defendant’s plea of payment and settlement sufficiently alleges facts showing duress which the law recognizes as legal grounds for avoiding such settlement; and the duress involved, in the inquiry, as we have shown, is reduced to that character of duress generally designated as duresspér minas.

The four distinct grounds on which a man may avoid his own act for duress per minas, as declared by Lord Coke, and generally recognized in the law since, are as follows: First, for fear of loss of life. Second, for fear of loss of member. Third, for fear of mayhem; and fourth, for fear of imprisonment.

A distinction may be observed in the decisions of various courts in their statements of the fourth ground above mentioned ; the rule of decision adopted by some of the courts being that the threats must be of an unlawful imprisonment, and others that it is immaterial whether the threats are of an unlawful or lawful imprisonment, treating the duress as consisting in the state of mind produced by the threats and in which the act sought to be avoided was done. This court does not seem to have had occasion to commit itself to the one view or the other. We cannot perceive on principle why such a distinction should exist. It was never contemplated in the law that either the actual or threatened use or misuse of criminal process, legal or illegal, should be resorted to for the purpose of compelling the payment of a mere debt, although it may be justly owing and due, or to coerce the making of contracts or agreements from which advantage is to be derived by the party employing such threats. Ample civil remedies are afforded in the law to enforce the payment of debts and the performance of contracts, but the criminal law and the machinery for its enforcement have a wholly different purpose, and cannot be employed to interfere with that wise and just policy of the law, that all contracts and agreements shall be founded upon the exercise of the free will of the parties, which is the real essence of all contracts.

In the later and better considered cases, both English and American, the distinction above referred to is not recognized, but, as we think, is justly discarded. We approve the statement of the doctrine as declared in Morse v. Woodworth, 155 Mass. 251, where it is said by the court: ‘-Tt has sometimes been held that threats of imprisonment, to constitute duress, must be of unlawful imprisonment. But the question is whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for. the purpose of forcing a guilty person to enter into a contract may bo lawful as «.gainst the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes, provided for the protection of the public and the punishment of the crime. One who has overcome the mind and will of another for his own advantage, under such circumstances. is guilty of a perversion and abuse of laws which were made for another purpose, and he is in- no position to claim the advantage of a formal contract obtained in that way; on the ground that the rights of the parties are to be determined by their language and their overt acts without reference to the influences which mould them. In such a case there is no reason why one should be bound by a contract obtained by force, which in reality is not his, but another’s.’.’ See also Adams v. Irving Nat. Bank, 116 N. Y. 606. To the same effect are the-following cases: Hackett v. King, 6 Allen 58; Taylor v. Jaques, 106 Mass. 291; Harris v. Carmody, 131 Mass. 51; Bryant v. Peck & Whipple Co., 154. Mass. 460; Williams v. Bargley L. R. 1 H. L. 200; Ib. 4 Giff. 638, 663 and note; Eadie v. Slimmon, 26 N. Y. 9; Sharon v. Gager, 46 Conn. 189; Bane v. Detrick, 52 Ill. 19; Fay v. Oatley, 6 Wis. 42; Springfield, Fire & Marine Ins. Co. v. Hull, 25 L.R. Ann. 48 and notes; Brown v. Pierce, 74 U. S. 205; Baker v. Morton, 12 Wall. 158.

It cannot, of course, be said, that the fact that a payment or contract is made or induced from a mere fear of imprisonment, if it should not be made, affords any reason for avoiding the payment or contract on the ground of duress. But if the fact that the person making the saméis liable to arrest and imprisonment is used as a threat to overcome his will and compel a settlement which he would not have made voluntarily, it will amount to duress. The question in every case is whether his liability to imprisonment was used against him by way of threat to force a settlement. If sc, the use was improper and unlawful, and if the threats were such as would naturally overcome the mind and will of an ordinary man, and if they did overcome his will, he may avoid the settlement. — McCormick Harvesting Machine Co. v. Hamilton, 73 Wis. 486; Robinson v. Gould, 11 Cush. 55.

It is unnecessary for us to determine in this case whether the age, sex, state of health, temper and disposition of the party must be taken into consideration as circumstances calculated to give greater or less effect to the violence or threats. It is true the replication of the plaintiffs alleges the feeble physical condition of Kirkpatrick at the time of the alleged threats, it but is wholly insufficient to show such threats of personal violence by appellant’s agent as to predicate them as a ground of duress, and the facts set forth in the replication to show threats of imprisonment, stripped of the averments as to fraud and personal violence, are, in our opinion, sufficient to show that they might naturally' have overcome the mind and t will of a man of ordinary firmness without reference to his physical state, and, further, to show that plaintiff in making the settlement -did act under coercion from fear of threatened immediate imprisonment, andnotof his own free will. The demurrer to the replication was, therefore, properly overruled. — Reynolds v. Copeland, 71 Ind. 422.

We discover no error in the other rulings of the court assigned as error that could have operated prejudicially to the appellant; and in this statement, we. include the rulings of the court below on the question of tender.— Springfield Fire & Marine Ins. Co. v. Hull, 25 L. R. Ann. 37.

The judgment of the lower court is affirmed.