Porter v. United Railways Co. , 165 Mo. App. 619 ( 1912 )

CAULFIELD, J.

(after stating the facts). — L Defendant first contends that “the court erred in overruling a peremptory instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff’s case, because plaintiff admitted signing the release pleaded in defendant’s answer, admitted that she could read and had an opportunity to read it and failed to introduce evidence sufficient to raise the issue of plaintiff’s want of mental capacity to understand the nature and effect of her acts when she executed the release.” We do not agree to this contention. True, the rule is stated to be that false representations as to the contents of a written instrument will not avoid the instrument (Johnston v. Cov. Mut. Life Ins. Co., 93 Mo. App. 580; Magee v. Verity, 97 Mo. App. 486, 71 S. W. 472; United Breeders Co. v. Wright, 134 Mo. App. 717, 115 S. W. 470); bnt this is on the ground that the deceived palrty is negligent in failing to read the instrument or to have it read to him, having opportunity to do so. [Johnston v. Cov. Mut. Life Ins. Co., supra; Tait v. Locke, 130 Mo. App. 273, 109 S. W. 105; Breeders Co. v. Wright, supra; 1 Page on Contracts, sec. 70.] “The common law affords to every one reasonable protection against fraud in dealing; but it does not go the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information.” [2 Kent’s Com., 485.] A man will not be relieved for “voluntarily neglecting to use common sense and judgment if he has them.” [Robinson v. Glass, 94 Ind. 211.] The rule, anomalous anyway (see Tait v. Locke, supra), is not to be applied where the deceived party for any reason was incapable of judging o.f the precautions to be taken against being defrauded and overreached. “It is the pride of the law that while refusing to encourage ‘supine negligence’ or to lend ear to a complaint against that which was perfectly patent and manifest, it will yet aid the unfortunate whose ignorance and situation have been made the means of an unfair and unjust contract.” . . . “When the complaint comes from the weak, the helpless, the unfortunate and ignorant, . . . the entire aspect is changed and the law affords them protection, for the very reason that they are not able to protect themselves and cannot be considered at fault in becoming the victim of the wrongdoer.” [Hendricks v. Vivion, 118 Mo. App. 417, 94 S. W. 318.] Nor is it necessary to prove such technical incapacity as would avoid the contract regardless of the fraud. [1 Story on Contracts, sec. 627; Freeland v. Eldridge, 19 Mo. 325.] It is sufficient, we take it, to show that through pain and suffering, distraction, or other circumstances, the mind of the person misled was not in a condition to realize the antagonistic position of the adversary or to judge of the precautions to he taken against being defrauded and overreached. "We may also add that words and actions may be held to constitute fraud as to a person of weak intellect, or whose mind is enfeebled by disease, when they would not be regarded as such in favor of one in the full exercise of his faculties. [1 Story on Contracts, sec. 627.]

Now it appears from plaintiff’s testimony, which is entirely uncontradicted and in view of the verdict must be accepted as absolutely true, that on the day when the instrument was made, plaintiff was an old negro woman, inexperienced in business affairs, and alone in the house when the claim agent called. Hardly two days before she had suffered such a violent shock from concussion as to be rendered unconscious and had suffered bruises and injuries which after-wards turned out to be very serious. The conversation between her and the agent was such as to inevitably lead her to conclude that the paper he asked her to sign must be a mere receipt for five dollars to meet small temporary needs of medicine, etc., and not a release of her entire cause of action. She testified that in her condition she did not think of reading the paper; though not out of her head or insane, she was sick and suffering terribly with her limb, in a “rack” of pain, her head was hurting her, she was suffering mentally and physically and did not understand what she was doing. We are of the opinion that this was sufficient evidence to take to the jury the question of whether the plaintiff was in such a mental condition that the law will protect her against the fraud complained of, notwithstanding she failed to read the instrument or asked to have it read to her.

We are also of the opinion that the acts of the claim agent, under the circumstances here disclosed, constitute a fraud, such as the law will relieve against by declaring void tbe instrument procured to be signed by means of it. We do not believe that plaintiff’s testimony as to ber pain and suffering and consequent mental state is to be considered as conclusively overcome by tbe fact that sbe was able to relate details as to wbat was said and done while tbe agent was present. She might have bad sufficient intellect to notice and understand these things without being in a condition to judge of the precautions to be taken to protect herself against fraud and imposition. In any event we consider this matter to be one concerning which two reasonable minds might honestly differ, and that it was properly referred to the jury, whose conclusion is binding on us.

II. It was not error for the trial court by instruction to permit a finding of substantial damages for loss of earnings of plaintiff’s labor not exceeding four hundred and fifty dollars. There was sufficient evidence of the value of plaintiff’s time under the ruling in Haworth v. Kansas City Southern Ry Co., 94 Mo. App. 215, 68 S. W. 111, the case upon which defendant relies.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.