author: Summers, J.

text:
    Perry v. The M. O'Neil & Co.

      A void release of cause of action for damages — Is not a bar to such action, when — Cause of action for cancellation of release — And cause of action for damages — May be united in same petition, when — Burden of proof rests with releasor, when.

    1. A release of a cause of action for damages for personal injuries, that is void, is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void; but if it is not void, but only voidable, he cannot maintain his action until the release is set aside.
    2. A cause of action for the cancellation of a release of damages for personal injuries and a cause of action for damages for such injuries may be united in the same petition.
    3. If the execution and delivery of the release are admitted, the burden of proving it void is upon the releasor.
    (No. 10817
    Decided May 19, 1908.)
    Error to the Circuit Court of Summit county.
    In 1902 the plaintiff went into the store of the defendant to make a purchase and fell through an opening in the floor and was injured. In 1903 she commenced an action against the Company to recover for her injuries. The Company answered denying the averments of the petition and setting up a release. A reply was filed by the plaintiff but, it is said, when the cause came on for hearing it was discovered that no tender had been made, as required by the ruling in The Manhattan Life Ins. Co. v. Burke, 69 Ohio St., 294, and so the case was dismissed without prejudice. In 1905 she again commenced an action against the defendant to recover for these injuries. In the first cause of action she stated her injuries and the negligence of the defendant and in a second cause of action she averred that the defendant company had paid her fifteen dollars for servant hire, and that they had obtained her signature to a release of her cause of action by fraudulently representing it to be merely a receipt for the money they had paid her for servant hire, she being an illiterate woman and unable to read or write except to sign her name. She pleaded a tender to the defendant of the money received and prayed that the paper writing, a copy of which she set out, might be set aside and held for naught.
    The defendant answered denying the averments of negligence and set up contributory negligence on part of the plaintiff, and the plaintiff filed a reply.
    When the case came on for trial the court permitted the plaintiff to withdraw her second cause of action, and granted leave to the defendant to file an amended answer. The defendant filed an amended answer, and the second defense to the first cause of action is as follows:
    For a second defense to the first cause of action of plaintiff’s petition, defendant says that if it is chargeable with the negligent acts complained of therein, a fact which this defendant wholly denies, nevertheless the said plaintiff ought not to maintain this her action for that, after the injury received by said plaintiff, she permitted and requested th,js defendant to pay to Dr. Harry M. Todd, her then attending physician the amount of his bill for professional services rendered to her, which this defendant did pay and, at or about the same time this defendant, at plaintiff’s request, also jiaid her nursing bill; and that thereafter, to-wit: on or about February 8, 1902, the plaintiff also received and accepted from this defendant, as a full complete payment and release of all claims for damages and expenses against this defendant and arising from such injury, the further sum of fifteen dollars ($15.00), with full knowledge upon her part that she was not bound to accept the same, but that in so doing she released this defendant from any claims for damages against it arising from the injuries set forth in her petition, and thereupon and in consideration of the payment by this defendant of said sums and on or about the day last above set forth, she executed and delivered to this defendant her said receipt and release in that behalf in writing as follows, to-wit:
    “Akron, Ohio, Feb. 6th, 1902.
    “Received of The M. O’Neil & Co., fifteen dollars, in full settlement of any and all injuries received by me in the store of said company on the 30th day of January, 1902,- and do hereby release it from all liability or damage. -$15.00. Witness, Harry D. Todd. Mary Perry.”
    And this defendant avers that by reason of the matters and things set forth in this, its second defense, plaintiff released this defendant from all liability to her by reason of the injuries complained of in her first cause of action of her petition.
    The plaintiff to this defense filed the following reply:
    2. For her reply to defendant’s second defense, plaintiff admits that one.Harry D. Todd did perform some professional services upon her immediately following her said injuries. Plaintiff further admits that on or about the sixth day of February, .1902, defendant did pay to her the sum of fifteen dollars and that on said' date she signed a certain paper writing and says that at the time of signing said paper writing, which was at her home and where said transaction occurred defendant by its agents and employes procured and induced plaintiff to sign said paper writing which she was to lead to believe by defendant" and its said agents and employes to be a mere receipt for money paid for servant hire and nothing more, but which she afterward learned from said defendant its agents and employes was a release of all claims and damages for injuries set forth in her petition.
    Plaintiff says that at the time she signed said paper writing she was confined to her bed, was suffering great bodily and mental pain as the result of her injuries, was under the influence of opiates was in no condition to consider the effect of said paper writing, is an illiterate woman, unable to read or write except to sign her name, and no one was present to whom she could look for advice or direction.
    That while she was sick and disabled the said defendant by its agents and employes paid to her the sum of fifteen dollars, only ten dollars of which was paid her at the time of signing said paper writing. That plaintiff in signing said paper writing did so under a mistake as to the contents of the same, and upon the representation of the defendant its agents and employes that it was a mere receipt for servant hire as aforesaid, and under the impression that she was simply-signing a mere receipt and while she was physically and mentally incapacitated from acting in the matter.
    Plaintiff further says that said defendant, its agents and employes, one of whom, Plarry D. Todd, was a practicing physician, represented to her that she would be well and able to be about in four weeks from the time of her said injury and that the cost of employing a servant for that time would be ten dollars, whereupon said defendant, by its agents and employes paid plaintiff ten dollars, and plaintiff signed said paper writing, not knowing that it was a release of her claim for damages against said defendant for said injuries but believing it to be a receipt for ten dollars for said servant hire and nothing more; that she did not intend to sign a release and would not have signed it, if she had known that it was other than a receipt merely for the money paid her as aforesaid.
    Plaintiff- further says that at the time she signed said paper writing the defendant, its agents and employes did not make known to her that they were present for the purpose -of adjusting her claim for damages against the defendant and settling the same, as they were bound to do, knowing that she was an illiterate woman, had had no experience in such matters and that she was mentally and physically weak as a result of her said injuries and in no condition to act intelligently in the premises.
    Plaintiff further says that the said paper writing herein set forth was procured by the defendant, its agents and employes from the plaintiff by fraud and false representation in this that defendant by its agents and employes represented to plaintiff that said paper writing was a receipt for the ten dollars for servant hire as aforesaid and nothing more and that she would be well and able to be about in four weeks from the time of her said injury and that said ten dollars was for servant hire for said period of four weeks and nothing more and that said receipt was for ten dollars only, all of which were then known by defendant its agents and employes to be false and untrue, and were made by defendant, its agents and employes with the intent to deceive plaintiff, and plaintiff relying on the same and believing them to be true executed said pretended release.
    Plaintiff further says that defendant, its agents and employes fraudulently and with intent to deceive plaintiff withheld from her the fact that they were present for the purpose of settling and adjusting her claim for damages against said defendant for her said injuries, and that by signing said paper writing she would surrender any and all claim for damages against said defendant for said injuries and would be forever barred from making any claim against said defendant for said injuries, and plaintiff did not know that by signing said paper writing she would in any way prejudice her right of action against said defendant for said injuries.
    Plaintiff further says that in the latter part of March, 1902, defendant paid her the additional sum of five dollars making a total sum of twenty dollars paid by defendant to this plaintiff.
    Plaintiff further says that on or about the 2d day of February, 1905, plaintiff by her attorney for and on her behalf tendered to the defendant’s attorney for and on defendant’s behalf the sum of twenty dollars, being the amount of money paid by defendant to plaintiff as aforesaid, but said defendant’s attorney refused to accept said sum of twenty dollars, stating' that defendant had paid a sum of money to and for the benefit of plaintiff largely in excess of said twenty dollars, but which amount he could not state, whereupon plaintiff by her attorney called at the store of defendant and was informed by defendant, its agents and employes, that defendant had paid plaintiff in money, and doctor’s bills, cab hire, a dress, etc., approximately eighty-three dollars, and on the following day, February 16th, 1905, plaintiff by her attorney for and on her behalf, while denying 'that any such sum was paid to her or on her account, tendered to the defendant’s attorney for and on behalf of defendant at his office in Akron, Ohio, the sum of.$100.00 in gold, which said attorney refused to accept, and still refuses so to do.
    The defendant requested the court to charge the jury before argument as follows: “The instrument set forth in defendant’s answer, to-wit: ‘Akron, Ohio, Feb. 6th, 1902. Received of The M. O’Neil & Co., fifteen dollars, in full settlement of any and all injuries received by me in the store of said company on.the 30th day of January, 1902, and do hereby release it from all liability or damages. $15.00. Mary Perry. Witness — Harry D. Todd,’ is a release of all claims and demands of plaintiff for the injuries sued upon in this case and is an absolute bar to. a recovery by plaintiff in this case.” In the general charge the court instructed the jury as follows:
    “This court charges you as the law that a written instrument signed by the parties, or by one party and delivered to the other, is prima facie evidence of the truth of the contents of such instrument; that is, that it affords a presumption that the recitals made in such instrument concerning the transaction are true. This however, is likewise not a conclusive presumption; it is a disputable one and open to explanation where a want of knowledge and fraud are charged. I say further to you that fraud is not to be presumed, but must be shown by clear and convincing proof from all the facts and circumstances of the case; and the burden of proving the same is upon the party relying upon the fraud either to make his case or to constitute or to make his defense.
    “On this subject of settlement or release, which is offered as a defense, the burden of proof is upon the defendant to show that the settlement was made and the release signed and executed by the plaintiff, the plaintiff all the while knowing or being advised at the time of the contents of any written release. I say to you as a matter of law, if she knew the terms and conditions of any settlement that may have been made or was advised or had read to her the terms and conditions of any written release, she would be presumed in law to know the legal effect of any such settlement or release. If, however, she did not know or was not advised of the terms and conditions of a settlement for any liability growing out of the injuries in question, then there could be no settlement and no release that would be valid in law; the minds of the parties would not have met, they would not have contracted with reference to any settlement or release; but if the jury find that there was a settlement then and there made simply as to doctors’ bills, nursing, hired help, or any other incident, but that said settlement did not include any liability claimed against the defendant company by reason of the injuries the plaintiff may have received in defendant company’s store on the 30th of January, 1906, then such release would not be a bar to this action, and could only be regarded by the jury in diminishing' any amount to be recovered by the plaintiff from the defendant company to the extent of any sums so paid in money or merchandise or doctors’ bills by the defendant company, and to the extent of excluding from your consideration the items included in any such settlement. If the jury find that there was a full settlement or a full release made and executed for any and all liability growing out of the injuries of the plaintiff at the defendant company’s store on the 30th of January, 1902, under these instructions, then your verdict should be for the defendant.”
    The jury returned a verdict for the plaintiff and on error the circuit court reversed the judgment for error in refusing to charge the jury as requested and for error in that part of the charge above set out in which the court instructed the jury that, “the burden of proof is upon the defendant to show that the settlement was made and the release signed and executed by the plaintiff, the plaintiff all the while knowing or being advised at the time of the contents of any written release.”

      Messrs. Skiles, Green & Skiles and Mr. W. R. Talbot, for plaintiff in error.

      Messrs. Musser, Kimber & Huffman and Messrs. Kohler, Kohler & Mottinger, for defendant in error.
   Summers, J.

It is said by counsel that the circuit court held that the trial court erred in refusing to instruct the jury that the release is a bar to a recovery by the plaintiff for the reason that the plaintiff could not maintain an action for damages for her injuries until the release had been set aside in a suit in equity. If a party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action, when he denies the execution of the release, or that it is his act, on the ground of want of mental capacity at the time he signed it, or that his signature to the release was procured by fraud, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which he did not intend to give, he may maintain his action without obtaining a decree. In other words, if the release is void, he may ignore it in his petition, and if it is plead as a bar in the answer, he may in his reply plead the facts that make it void; and if it is not void but only voidable, he must, to maintain his action, obtain its rescission or cancellation.

“Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread, or some other fraud or imposition has been practiced upon the' party in procuring his signature and seal. The fraud in this aspect goes to' the question whether or not the instrument ever had any legal existence.” Hartshorn et al. v. Day, 19 Howard, 223.

“At common law it has often been held incompetent to a defendant suing at law on a specialty to plead that the instrument was obtained by false representations; it is a case, it is said, for equity alone. It is clearly otherwise of the execution of the instrument, as where the bond is misread to the obligor, or where his signature is obtained to an instrument which he did not intend to’ sign. In such cases fraud may be alleged at law.” Bigelow on Fraud, 53.

And in George v. Tate, 102 U. S., 564, Mr. Justice Swayne says of a defense at law that.defendant was induced to sign a bond by fraudulent representations, “it is well-settled that the only fraud permissible to be proved at law in these cases is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give.”

And in the Union Pac. Ry. Co. v. Harris, 158 U. S., 326, an action for personal injuries and in which a release had been pleaded as a bar to the action, it was held that the court’s charge to the jury to the effect that the release was not a bar to the action if the plaintiff could not and did not read it, and signed it without understanding that it was a release of his cause of action, was not erroneous.

The decisions of our own court are in accord with this rule. In DeCamp v. Hamma, Exr., 29 Ohio St., 467, it is held: “In an action against the maker, by an indorsee of a negotiable promissory note, who purchased the same for a valuable consideration, .before maturity, and without notice of any fraud or infirmity as between the original parties, the defendant is not liable where it is shown: (1) That at the time of signing and delivering the note, he was induced, by fraudulent representations as to the character of the paper, to believe that he was signing and delivering an instrument other than a promissory note;. (2) That his ignorance of the true character of the paper was not attributable, in whole or in part, to his own negligence in the premises.”

We have no equity courts, but, in obedience to constitutional mandate, justice is administered without reference to any distinction between law and equity, in the same court and by one form of proceeding, and it is provided by Section 5058, Revised Statutes, that plaintiff may unite several causes of action in the same petition, whether they are such as have heretofore been denominated legal or equitable, or both, when they are included in the same transaction, or transactions connected with the same subject of action, so that it is not necessary in such instances to obtain a decree of rescission or of cancellation before commencing an action to recover damages for personal injuries, but in the same action the plaintiff may by one cause of action seek the rescission or cancellation of a release and by another cause of action ask for damages for his injuries, and if the equitable relief is granted by the judge, as if a chancellor sitting to administer equity, the release then can be no bar to the cause of action for damages.

Blair et al. v. The Chicago & Alton R. R. Co., 89 Mo., 383, was an action for personal injuries. The petition contained two counts, the first asking to have cancelled and held for naught the release executed by the plaintiff, the second was an action at law claiming damages for the injuries. The answer to the first count was a general denial, accompanied by a refusal of the tender. The answer to the second count was a general denial accompanied by a plea in bar setting up the release. The reply to this was a reiteration of the allegations of the original petition as to the non-binding force of the release. The equity branch of the case was heard and a decree entered cancelling and holding for naught the release, and ordering the plaintiffs to deposit with the clerk of the court thirty dollars the amount of the tender for the benefit of the defendant. At the next term after the decree had been entered cancelling' the release, the trial was had in the action at law for damages and resulted in a verdict and judgment in favor of the plaintiff. It was held that under the code the count in equity to set aside a release of damages for personal injuries can be joined with one at law for the recovery of the damages, and that a court of equity will grant relief notwithstanding the existence of a remedy at law, unless the defendant pleads the remedy at law in defense of the equitable suit.

Girard v. St. Louis Car Wheel Co., 123 Mo., 358, was an action to recover damages for personal injuries. It is held: “(1) In an action for damages for personal injuries defendant, by answer, set up an alleged agreement in the nature of a release or discharge of the cause of action. To that plea, plaintiff replied that the agreement had been obtained by fraud, while he was unable (because of pain and suffering, caused by the injuries) to comprehend his act in signing it, and that he never assented to the agreement; held, that the reply to the plea of a release was sufficient in an action at law, without resorting to equity to cancel that document. (Gantt, Sherwood and Burgess, JJ., dissenting.) (2) Where a reply of fraud is made to a plea of release, and no point is interposed in the trial court of any deficiency in the reply on account of an omission to tender back the benefits received under the agreement for a release, and the record shows that those benefits were accounted for in the judgment, there is no prejudicial error in the omission to allege or prove an offer to' return those benefits, even if such offer were otherwise necessary to avoid the release.” It was contended that the action for damages was not maintainable, because the release had not been set aside by a decree in equity, and Blair v. Chicago & Alton R. R. Co., supra, was cited in support of that contention. But it was said in the opinion, “while that course may be adopted, it is not essential where the alleged fraud goes to the integrity of the release as a legal agreement.” The case is very fully considered, several of the judges writing separate opinions, and it is paiticularly instructive upon the question of the necessity of a tender. But it is unnecessary to consider that question here, as in the present case it is admitted that the plaintiff tendered the amount that had been received.

Homuth et al. v. Metropolitan St. Ry. Co., 129 Mo., 629, was an action for personal injuries in which a release was pleaded as a bar. Held: “Whether or not a release interposed as a defense to an action for damages for personal injuries was obtained by fraud, may be tried as an issue at law and without first resorting to equity for the cancellation of such release. Where, however, the defendant has performed its part of the release agreement, and plaintiff admits its execution, and understood at the time its legal effect, such release is a bar to an' action at law until. set aside in equity.”

Och et al. v. M. K. & T. Ry. Co., 130 Mo., 27, was an action for personal injuries. The defendant set up a release as a bar. A majority of the court was of opinion that upon the plaintiff’s own showing the release was not void but only voidable and held that until set aside in an equitable ■ proceeding for fraud in its procurement, it was a bar to an action for injuries caused by the accident and that “an executed contract between competent parties, founded on a valuable consideration, not immoral or prohibited by statute, nor against public policy, is not void as between the parties thereto, however fraudulently obtained.”

Hancock v. Blackwell, 139 Mo., 440, was an action for slander. The defendant answered setting up a release as a bar to the action. The plaintiff replied admitting that she signed the release and averring that the same and her signature thereto had been procured by fraud, falsehood and undue influence brought to bear on her by the defendant and that the same was wholly without consideration. The reply did not seek to avoid the bar of the release on the ground that the release was void, but merely on the ground that it was voidable, and it was held that: “Said release, until set aside, was a bar to this suit; and before it could be maintained, either an original action in equity must be brought to set aside such release, on the ground of fraud in obtaining it, or, as the offer to refund the money was made before the commencement of this suit, the same end could be reached by a separate count in the petition in the slander suit.” In the opinion it is said: “In such circumstances the issue of fraud should be tried by the court; and the evidence in order to justify setting aside the release should be clear and satisfactory, such as will preponderate over the presumption or evidence on the other side.”

• The case of Courtney v. Blackwell was again before the court in 150 Mo., 245. The case is quite instructive on several questions of practice. Upon the return of the case, the plaintiff amended her petition, as suggested in the opinion, and in the first count set up the release and averred that upon learning of the misrepresentations she had tendered to the defendant the ten dollars, with interest thereon, that he had paid her for the release, and prayed that it be cancelled and set aside, and in the second count set up her claim for damages. In answer to the first count, among other defenses, the defendant pleaded the statute of limitations. Plaintiff filed a general denial. Upon a trial had on the first count of the petition, the court entered a decree setting aside and cancelling the release. The cause then proceeded to trial on the second count, resulting in a verdict for plaintiff, on which judgment was entered. It was contended that the court erred in forcing the defendant to trial upon the second count, pending the defendant’s motion for a new trial on the first count of the petition, and the excluding of the release as a defense to the action on the second count. The code of the state provides that when such causes of action are united, separate trials may be had for each cause of action at the same or different terms of the court, as circumstances may require, but that the judgment upon each separate finding shall await the trial of all the issues. This was not done in that case, but.the court held that the premature entering of the decree was not prejudicial. On the trial on the second count, the defendant objected to the introduction of any evidence in the case, or to any proceeding whatever in that case, until there had been a final disposition of the case on the first count, both in that court and in the appellate court. In the opinion it is said: “The statute does not contemplate a dismemberment of the action at any stage of the proceedings, whereby a part of it might be brought to this court and be pending here, while the other part of it was left behind in the circuit court. On the contrary, the .obvious meaning is, that the whole case shall be disposed of in the trial court before it is in condition for appeal.” It was also held that the amended petition, asking for a cancellation of the release, did not set up a new claim not before asserted, and that the action was not barred by the statute of limitations.

The Eagle Packet Co. v. Defries, 94 Ill., 598, was an action on the case to recover damages for injuries sustained by the plaintiff while a passenger on one of the appellant’s steamboats. To the declaration the defendant pleaded the general issue and a special plea of release. “It appeared the plaintiff was an illiterate woman, unable to read or write, and the paper was obtained from her during her illness consequent upon an injury, by the physician who was attending her, in the absence of any of her friends to whom she could look for advice, the physician explaining to her that the servants of defendant had expended the sum of money named in the paper for her benefit, and wanted something to show what the money had been expended for, and this was all the explanation he made.” The court held that the jury properly found the plea of release was not sustained.

In Chicago, Rock Island & Pac. Ry. Co. v. Lewis, 109 Ill., 120, it is held: “An instrument absolutely void need not be rescinded in order to remove it out of the way to the assertion of a right. A contract void on account of fraud, or for any other reason, is in law as though it had never been executed. A release of all claim for damages growing out of a personal injury caused by negligence on the part of defendant, if fairly obtained by the agents of defendant (a railway company), and under standingly executed by the plaintiff, is an effectual bar to an action to recover for such injury. If a party, however, after receiving a serious personal injury as a passenger on a railway train, through negligence of the company, is induced to sign a release of all damages by the agents of the company, through their representations or acts, which induce in his mind the belief he is only signing a receipt for money paid him at the time for loss of time and expenses incident to the delay resulting from the accident, and not as a discharge of the company for the injuries sustained, or if such release is procured by fraud and circumvention, it will be void as to the party so induced to execute the same. Fraud vitiates everything it touches, and a party will not be allowed to avail of an undue advantage obtained over another by fraudulent practices. Or if a person, while under the influence of. opiates to such an extent as to be incapacitated to contract, is induced to execute a release of damages for a personal injury, it will not be obligatory upon him, and will be no defense to an action brought by him. Where a person was severely injured as a passenger on cars of a railway company, and in a few hours after being taken to a hotel, after the injury, was induced by the agents of the company to sign a release of his right of action, under the belief he was signing only a receipt for money, which belief was caused by their fraudulent practices and representations, and it appeared that at the time he was suffering great physical pain and laboring under the effect of opiates, it was held, that under the circumstances he was not chargeáble with such negligence in executing the release without having first read the same, as to preclude him from asserting the truth as to the manner in which his signature was procured.” See also The National Syrup Co. v. Carlson, 155 Ill., 210.

In The Pawnee Coal Co. v. Royce, 184 Ill., 402, it is held that: “Actual, intended fraud in the procurement of a release of damages for personal injuries must exist in order to excuse a return of the consideration by the plaintiff before bringing suit and to render the release of no effect in law.” And again: “In the cases where a release has been executed and its effect is sought to be avoided, the circumstances of its execution and whether there is sufficient cause to avoid it, as well as whether a return of the consideration therefor is necessary, are questions of fact for the jury under proper instruction's.”

In The Pioneer Cooperage Co. v. Romanowicz, 186 Ill., i, it is held: “A release of damages may be regarded. as not fairly obtained, and hence as inoperative where the party executing the release is unable to read it and it is not read to him, but is represented to him by the- party claiming the benefit, as being for another purpose.” To the same effect is Indiana, Decatur & Western Ry. Co. v. Fowler, 201 Ill., 152.

Schultz v. Chicago & N. W. Ry. Co., 44 Wis., 638, was an action for personal injuries. The answer set up a release. The plaintiff, after the answer was served, tendered the money to defendant’s attorneys. The plaintiff testified that he did not know the contents of the instrument when he signed it, and would not have signed had he known the nature of it. He denied that he ever settled with the defendant and testified that he supposed the money he received was to pay him for the time he was laid up with his wounds. Held: that he was not bound by the release if he signed it without knowing its contents or intending to sign such an instrument.

In Bussian v. Milwaukee, Lake Shore & W. Ry. Co., 56 Wis., 325, it is held: “A release of all claims, which is pleaded as a bar to an action at law, may in that action, be shown to have been obtained by fraud, misrepresentation, or undue influence, if all the parties to the release are parties to the action, and the finding of the jury upon the question of fraud has the same force as their verdict upon any other issue in the action.” Lusted v. Chicago & N. W. Ry. Co., 71 Wis., 391, is to the same effect.

In Gibson v. Western N. Y. & Pa. R. R., 164 Pa. St., 142, the case is stated as follows: “In an action against a railroad company to recover damages for personal injuries, defendant set up as a defense a release executed by plaintiff. Plaintiff swore that the release was executed when he was under the influence of anaesthetics, and positively denied the exercise of any mental faculty on his part in the execution of the paper. • Five disinterested witnesses, four of whom were physicians, testified that plaintiff was perfectly rational at the time he executed the release. Held: that the case was for the jury. Plaintiff’s claim was of right according to law and not of grace according to equity. The dispute was as to the fact of the deed, not as to the equities under it.” Julius v. Pittsburg, Allegheny & Manchester Trac. Co., 184 Pa. St., 19, is to the same effect.

In Dixon v. Brooklyn City & N. R. R. Co., 100 N. Y., 170, a release was set up as a bar to an action for personal injuries, and there was testimony tending to prove that at the time of its execution the plaintiff was in a condition of mind that rendered him incompetent to appreciate the character of the instrument that he executed. It is held that the question is for the jury.

In O’Meara v. Brooklyn City R. R. Co., 16 App. Div. (N. Y.), 204, it is held: “Where a release is put in evidence as a defense to the plaintiff’s claim in an action to recover damages for personal injuries, the plaintiff may prove that she signed it, not knowing its contents, and that she was induced to do so by false representations, or any other facts tending to impeach it.”

In Missouri Pacific Ry. Co. v. Goodholm, 61 Kans., 758, it is held: “Where personal injuries have been suffered from which a liability exists, and a release therefor has been fraudulently procured, an action for damages may be maintained without first obtaining a decree to rescind or to cancel the release, and the plaintiff is not precluded from attacking a release so obtained, when it is set up as a defense, because he has not restored or tendered back the amount received by him at the time the release was obtained.”

In Mullen v. Old Colony R. R., 127 Mass., 86, it is held: “If a defendant obtains the signature of plaintiff to a paper, purporting to be a settlement and discharge of the cause of action, by fraudulent representations that it is merely a receipt for a gratuity, the plaintiff may maintain his action without returning the money paid him.” To the same effect is O’Donnell v. Inhabitants of Clinton, 145 Mass., 461.

In Viallet v. Consolidated Ry. & Power Co., 84 Pac. Rep., 496, it is held: “In an action by a passenger for injuries caused by collision of street cars, evidence tending to show that a release signed by plaintiff at the solicitation of defendant’s physician while he was treating plaintiff professionally was obtained by misrepresentation, held to require submission to the jury of the question of the validity of the release.”

The Chicago & N. W. Ry. Co. v. Wilcox,, 116 Fed. Rep., 913, was a suit in equity to rescind a release of a claim for personal injury on the ground of fraud, undue, influence, and mistake, and is instructive where the case is one for the determination of the. court.

In Alabama & Vicksburg Ry. Co. v. Jones, 73 Miss., no, it is held: “In an action for damages, by an old and ignorant man, for injuries received by a 'kicked' car, necessitating the amputation of a foot, where the railroad company, within two days after the injury, and within twelve hours after the amputation, and while he was suffering from pain and the effects of opium, and therefore incapable of acting rationally, induced him to release his claim for a small cash payment, it is proper, where the company relies upon such release, to instruct the jury that the plaintiff had a right to know the facts of the injury and their effect upon his right to repudiate the release, voidable for fraud, and that the release was not binding, unless he, subsequently, when competent to act, with full knowledge of the facts, and his rights under them, and of his right to disaffirm, ratified the same.”

In Cassilly v. Cassilly, 57 Ohio St., 582, it is held: “Where mother and son enter- into a written contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established', that she could not read' writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him.”

In the present case, it will appear by examination of the reply that the plaintiff avers that she is illiterate, unable to read or write except to sign her name, and that in signing said paper writing she did so under a mistake as to its contents and upon the representations of the defendant, its agents and employes, that it was a mere receipt for servant hire as aforesaid, and under the impression that she was simply signing a mere receipt, and while she was physically and mentally incapacitated from acting in the matter. There are many other averments in the reply placed there for the purpose of avoiding the release. The above averments, and some others, are of facts, which, if proven, would show that the release was not voidable but void. There are other averments which, if proven, would merely show that the release was voidable. These latter averments did not make a proper issue in an action at law, but the averments of facts tending to show that the release was void were proper, and the common pleas court properly refused the request to charge the jury that the release was a bar to the action.

The remaining question is respecting the instruction as to the burden of proof. The court instructed the jury that the burden was upon the plaintiff to prove the fraud averred but also instructed the jury, in effect, that the release' was

not a defense to the action unless the defendant proved the settlement and that there was no fraud on the part of the defendant below in obtaining the release, and to show that the plaintiff had full knowledge of what was contained in the release. This question was made in almost precisely the same way in The Addyston Pipe & Steel Co. v. Copple, 94 Ky., 292. It is there held: “Where the defendant in an action to recover damages for personal injuries relied for defense upon a writing signed by the plaintiff acknowledging the receipt of a certain sum from the defendant 'in full settlement’ of all claims against defendant on account of the injuries received, it was error to instruct the jury that the burden was on the defendant to show that the plaintiff fully understood and assented to the agreement as a settlement of his claim for damages. The presumption is conclusive that the plaintiff so understood the writing, and he is bound by it with that meaning unless he attacks it by a plea of mistake, and then sustains that plea by the weight of evidence.”

In Lusted v. Chicago & N. W. Ry. Co., 71 Wis., 391, 398, it is said: “The trial court, in effect, held that the burden of impeaching the release was upon the plaintiff, who must show with reasonable certainty that it was not intended to include the claim for personal injury; and the jury were told that if the plaintiff signed it after the subject of his injuries was talked over, understanding that it was a release of that claim,' whether he then knew the extent of his injuries or not, if he executed the instrument understandingly, he was bound by it.” This charge was approved.

The charge in the present ease is not unlike this. It is true, if he executed the instrument undérstandingly, he was bound by it, but notwithstanding the instruction that the burden of impeaching the release was upon the plaintiff and that he must show with reasonable certainty that it was not intended to include the claim of personal injuries, the statement that “if he executed the instrument understandingly, he was bound by it,” probably would mislead the jury. He was bound by it even though he did not understand it, unless by the weight of the evidence he impeached it for fraud in its execution.

The release as a defense does not negative the plaintiff’s cause of action, but is a bar to a' judgment upon it, and the burden of proof to establish it is upon the defendant; but there is a distinction between the burden of proof and the burden of evidence, or the burden to go forward with the evidence. When the defendant proved, or the plaintiff admitted, the receipt of the fifteen dollars, her signature to the release and its delivery to the defendant, the defendant had prima facie established this defense and the burden was upon the plaintiff, by the weight of the evidence, to prove fraud in the execution of the release.

The instruction was, in effect, that the burden of proof was on the defendant to show not only that the plaintiff executed and delivered the release for the consideration named, but also that she knew the contents of the release.

In Och et al. v. M. K. & T. Ry. Co., 130 Mo., 27, 44, it is said in the opinion: “She signed her own name to the paper, and the burden rested upon her to show that its execution was obtained from her by fraud and deceit.”

When the signature is admitted the presumption is that the party signing the instrument understood its terms, and he is bound by it unless he can prove facts that will avoid it.

In Wright v. Northampton & Hertford R. R. Co., 125 N. C., 1, where the execution of a release was not disputed, the court holds that in the absence of evidence to prove fraud, it is error to submit to the jury the question whether the release is the contract of the plaintiff. In The East St.Louis Packing & Provision Co. v. Hightower, 9 Ill. App., 297, it is held: “Appellee claiming that the release of all claim for damages was obtained from him by fraud, the burden was upon him to prove the fraud by a fair balance of testimony.” In DeDouglas v. Union Traction Co., 198 Pa. St., 430, it is held: “It is error to submit the question of fraud to a jury to overturn a written instrument upon slight parol evidence. The evidence of fraud in such cases must be clear, precise and indubitable, otherwise the case should be withdrawn from the jury.” To the same effect is The Denver & Rio Grande R. R. Co. v. Sullivan, 21 Col., 302, and it is also there held that the release is not subject to be contradicted or varied by parol testimony. To the same effect is Bonsack Machine Co. v. Woodrum, 88 Va., 512. And in Atchison, Topeka & Santa Fe Ry. Co. v. Vanordstrand, 67 Kans., 386, it is held: “A person who, without reading it, signs a written contract releasing his right to maintain an action for damages resulting from an injury occasioned by the negligence of his former employer will be held to have executed the instrument with full knowledge of its contents, when his only excuse for not reading it was that he was ‘somewhat hurried.’ Such a contract can not be avoided by the party signing it because he relied upon ‘allusions to future employment’ made by the agent of his former employer in the negotiations consummated by the written release, which employment was not furnished him.”

The judgment is

Affirmed.

Price, C. J., Shauck, Crew, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company v. The County Treasurer of Clark County.

      Interpretation of term "current year” — Restoration to tax duplicate of omitted lands — Section 2803, Revised Statutes — Dtity of county auditor in charging taxes for past years on omitted property.

    1. In the interpretation of Section 2803, Revised Statutes, the expression “current year” should be construed to mean the current tax year, and not the current calendar year.
    2. Where omitted real property subject to taxation, was on July 31, 1901, entered by the county auditor on the duplicate carrying the taxes of 1900, which was the duplicate then in the hands of the county treasurer, it thereupon became the duty of the auditor, — under Section 2803, Revised Statutes, — to add to the taxes so by him charged thereon against said property for the year 1900, the simple taxes of each and every preceding year in wliich such property had escaped taxation, back to and including the year 1891.
    (No. 10308
    Decided May 19, 1908.)
    Error to the Circuit Court of Clark county.

      The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company filed its petition in the court of common pleas of Clark county, Ohio, against the treasurer of said county praying that he be enjoined from collecting from it the back taxes charged against certain lots in the city of Springfield, the property of said railway company. Said lots, on July 31, 1901, were entered by the auditor of said, county as omitted lots, upon the county duplicate of 1900 then in the hands of the county treasurer, and taxes were charged thereon against said lots for the year 1900, together with the simple taxes of each and every preceding year in which said lots had escaped taxation back to the decennial appraisement of 1890.
    Upon the filing of plaintiff’s petition a temporary injunction was allowed by the court of common pleas, but upon the final hearing of said cause this injunction was dissolved, the petition of plaintiff dismissed, and judgment was rendered in favor of the treasurer for the sum of $968.84.
    On appeal to the circuit court a like judgment was rendered by that court. To reverse this judgment of the circuit court error is prosecuted by the railway company.

      Mr. Charles Darlington and Messrs. Martin & Martin, for plaintiff in error.

      Mr. Lawrence E. Laybourn; Mr. E. L. Arthur and Mr. John B. McGrew, for defendant in error.
   Crew, J.

It. is admitted in this case that on July 31, 1901, the county auditor of Clark county, upon information furnished him by the tax inquisitor, placed upon the tax duplicate of said county for the year igoo- — that being the duplicate then in the hands of the county treasurer — the lands or lots here in controversy, and that he charged thereon against said lots so entered by him upon said duplicate, the taxes of the year 1900, and added thereto the simple taxes for each of the preceding years, 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898 and 1899. The facts in this case are not in dispute,' and the sole question presented by this record is, was the county auditor of Clark county authorized and empowered by law to place this omitted property of the railway company on the county duplicate of 1900, and to charge thereon against said railroad company taxes for the preceding years back to and including the year 1891. The answer to this question necessarily hinges upon the interpretation and construction proper to be given the provisions of Section 2803, Revised Statutes, which reads as follows: “In all cases where any county auditor shall discover, or have his attention called to the fact, that any assessor in any previous year shall have omitted to return, or shall in any future year omit to return any lands, town lots, or any improvements, structures or fixtures thereon, subject to taxation, situated within his county, or if any such property has escaped taxation by reason of any error of said auditor, it shall be the duty of said auditor to ascertain the value thereof for taxation, as near as may be, and to enter said lands, town lots, or improvements, upon the duplicate of the county, then in the hands of the county treasurer of such county, and to add to the taxes of the current year the simple taxes of each and every preceding year in which such property shall have escaped taxation, as far back as the next preceding decennial appraisement and equalization of real estate in his county, unless in the meantime such property shall have changed ownership, in which case only the taxes chargeable since the last change of ownership shall be added, or the owner of such property may, if he desires, pay the amount of such taxes into the county treasury, on the order of said auditor.” The property involved in the present case being omitted property, it was by positive provision of the foregoing statute made the imperative duty of the county auditor upon discovering such omission on July 31, 1901, to enter said property upon the tax duplicate of the county then in the hands of the county treasurer— which at that time was the tax duplicate of the year 1900 — and to charge thereon against said property the taxes of the current year, to which he was required to add the simple taxes of each and every preceding year in which such property had escaped taxation as far back as the next preceding decennial appraisement and equalization. The question, therefore, that first suggests itself is, what taxes on July 31, 1901, within the meaning of above Section 2803, were the taxes of the current year that were required to be entered on the duplicate of 1900 then in the hands of the county treasurer. Obviously they were not the taxes of the year 1901, for the taxes of that year could have no place on the duplicate of 1900, but are required by law to go upon the duplicate of 1901, which latter duplicate on July 31, 1901, was not in the hands of the county treasurer, and in contemplation of law could not go into his hands prior to the first day of October, 1901. Furthermore, on July 31, 1901, the decennial appraisement and equalization of 1900 had not yet been fully completed, and it could not then certainly be known what the proper taxes on the lots in question for the year 1901 would be. To adopt in this case the contention of counsel for plaintiff in error, and to hold that the words “current year” as employed and used in said Section 2803, mean current calendar year rather than current tax year, would be to close our eyes to the character of the subject-matter of this legislation, and to give to these words a sense and meaning wholly different, we think, from that intended by the legislature, and one that would involve the provisions of said statute in conflict and inconsistency. On July 31, 1901, the current duplicate of the then current tax year— the tax year then passing — then present in its course, was unquestionably the duplicate of 1900 carrying the taxes of the year 1900, and the unpaid taxes on said duplicate continued to be current taxes, and said duplicate a “live duplicate” of the current tax year, until the semi-annual settlement of said duplicate between the auditor and treasurer on August 10, 1901. It follows, therefore, from the agreed facts in this case, that the omitted property, by express provision and direction of the statute, was required to be, and was, properly placed on the duplicate of 1900 then carrying the taxes of the current tax year; and having been so entered, the auditor was authorized to charge against the same, taxes for the preceding years as far back as the next preceding decennial appraisement and equalization, which was that of 1890. The circuit court having so found and. adjudged its judgment must be affirmed.

Judgment affirmed.

Price, C. T., Shauck and Summers, JJ., concur.


author: Shauck, J.

text:
    The Willson Improvement Company v. Malone et al.

      Issues of law and issues of fact — How tried — Section 5130, Revised Statutes — Recovery of money — Contemporaneous appeal and error from common pleas to circuit court — Effect of — Court proceedings.

    1. In view of the comprehensive terms of Section 5130, Revised Statutes, .issues of fact in all actions “for the recovery of money only” are triable to a jury and no exception is admitted because of the number of the items in an account which is the basis of the action, unless there is such relation of parties as will authorize a court of equity to decree an accounting by one for the information of the court and his adversary.
    2. Within the meaning of the section an action for money is an . action for money only, unless there is sought some form of relief peculiar to courts of equity, and the action cannot be appealed from the common pleas to the circuit court. {Black, Receiver, v. Boyd, So Ohio St. 46, overruled.)
    3. Appeal and error being contemporaneously taken from the common pleas court to the circuit court the latter court errs in dismissing the petition in error unless, the action being appeal-able, the taking of the appeal is effective to suspend the judgment of the court of common pleas.
    (No. 10629
    Decided May 19, 1908.)
    Error to the Circuit Court of Cuyahoga county.

      William F. Malone and Frank Gorman, partners as Malone and Gorman, brought suit in the court of common pleas against the Willson Improvement Company to recover for work and material in constructing a brick and steel apartment house in the city of Cleveland. Their amended petition, upon which the cause was tried, contained four causes of action for the balance of the contract price of $118,544.00, for increase in the cost resulting from subsequent changes of the contract and for damages resulting from delays alleged to have been occasioned by the defendants, concluding with a prayer for a judgment for $29,309.48, and for no other relief: By cross-petition the company sought to recover from the plaintiffs on account of defects in workmanship and material and delay in completing the work. Later the sureties upon the bond of the principal contractors were brought in and allegations were made charging them with liability to the owner because of their alleged defaults. Numerous material-men and sub-contractors filed cross-petitions setting up' their claims and asking to be compensated out of any sum which might be found due from the owners to plaintiffs. The subjects of controversy raised by the issues were very numerous. All the parties waived a trial by jury and the court upon the pleadings and the evidence rendered judgment in favor of the plaintiffs for $13,195.00. Thereupon the company took steps to appeal the cause to the circuit court. It also filed a petition in error in the circuit court with a bill of exceptions containing all the evidence adduced upon the trial in the common pleas and praying for a reversal of the judgment upon the ground, among othérs, that the judgment was contrary to the weight of the evidence. In the circuit court Malone and Gorman moved to dismiss the appeal upon the sole ground that the action was not appealable. Their motion was overruled. The circuit court, having decided that the action was appealable, of its own motion, dismissed the petition in error. That order of dismissal is assigned for error here.

      Messrs. Beardsley & Morgan and Messrs. Henderson, Quail & Siddall, for plaintiff in error.
    This court has sanctioned the practice of concurrent prosecution of appeal and error, in cases of doubt, until the termination of the validity of an appeal, the question being before it in the case of Hull v. Bell Bros. & Co., 54 Ohio St., 228.
    This practice of prosecuting actions for review in both ways, when in doubt, has been generally commended. Mining Co. v. Canal Co., 118 U. S., 264; Hurst v. Hollingsworth, 94 U. S., Ill; Lockman v. Lang, 132 Fed. Rep., 1.
    It would be manifestly improper to order a dismissal of a second suit between the same parties, in those cases where the bringing of the second action was a necessary or proper step to create or, preserve a lien, or to avoid the bar of the statute of limitations, or to give due notice of lis pendens of the plaintiff’s rights, or to guard against the results of a possible dismissal of the first suit before its determination upon the merits. Zimmerman v. So Relle, 80 Fed. Rep., 417; Green v. Underwood, 86 Fed. Rep., 427; Gates v. Bucki, 53 Fed. Rep., 961; Heidritter v. Oil Cloth Co., 112 U. S., 294; Hailman v. Buckmaster, 8 Ill., 498.

      An action which exhibited the mutual accounts, as in the case at bar, was triable at common law in the old action of account by reference to auditors, without. a jury, at least between certain classes of litigants. 3 Blackstone, 164; 1 Waites’ Actions and Defenses, 73, 173.
    Under the old form of procedure, in a case as at bar, a law court could have refused a trial by jury, and sent the causes to “auditors,” or could have sent the litigants to a court of equity (Appleby v. Brown et al., Admrs., 24 N. Y., 143); and that at common law, understood in its broad sense (Campbell v. Coal & Iron Co., 9 Col., 60; Bank v. Miller, L. R. A., 387), which included equity jurisprudence, Malone and Gorman had no absolute right to a jury trial.
    That the ultimate relief sought is the recovery of money merely, is not conclusive that the action is one for the recovery of money only. Black, Rec’r, v. Boyd, 50 Ohio St., 46; Rowland v. Entrekin, 27 Ohio St., 47.
    In actions upon accounts under a contract, equity has jurisdiction when the issues necessary to be determined in order to arrive at a just conclusion, are so numerous and dependent upon such a variety of evidence, or evidence of such technical character, as that it is substantially impossible for a jury retiring in the ordinary way to a jury room and obliged to carry all the oral evidence in their memories, to come, at one session, to anything like a just and proper conclusion. Railway Co. v. Nixon, 1 H. L. (1847), 111
    We claim in this case there is a complicated account to be passed upon by the court, presented by both the plaintiffs and this defendant. Even, however, if there was. a complicated account on one side only, a court of equity would have concurrent jurisdiction. Pomeroy on Equity Jurisprudence (3 ed.), Section 1421.
    As we have already said, Malone and Gorman’s right to a judgment against the improvement company is subject to its first being shown, through an accounting, that the claims. of the lienholders do not take all the fund, and to create a fund their equitable right to claim estoppel and fraud must be established to overcome the effect of certificates of the architects issued to the improvement company and the effect of their failure to have certificates of said architects showing any amount due on contracts from the improvement company. The lienholders stand in the shoes of Malone and Gorman, and must also have the same relief before they can establish claims against the improvement company, and if any such claims are shown to exist, there must be a marshalling of the liens upon which they are based before any final judgment can be entered — a prolific source of equity jurisdiction. Pomeroy on Equity Jurisprudence (3 ed.), Section 186, p. 237.

      Messrs. Ford, Snyder & Tilden; Messrs. Brady & Dowling and Mr. W. D. McTighe, for defendants in error.
    The issues shown by the pleading in an action will show whether, after a judgment, there be a right to a second trial, under the act passed April 12, 1858. If there be an issue of fact joined between the parties, which either party has the right to demand shall be tried by a jury, then either party may demand a second trial. If there be a joinder of several causes of action, and an issue of fact as to either of them, which either party has a right to have tried by a jury, a second trial may be demanded, and there can not be an appeal, though one or more of the causes of action would be such as would otherwise authorize an appeal. Ladd v. James et al., 10 Ohio St., 438.
    The right intended to be secured by the constitution, was the right of trial by jury as it was recognized by the common law; and within the right thus secured is the right of either party, in an action for the recovery of money only, to demand that the issues of fact therein be tried by a jury. Was the action below such, when considered in the light of the facts stated in the petition, as entitled the parties to demand a trial by jury? Or, in other words, without regard to the prayer of the petition, which' does not determine the nature of the cause of action stated in the petition, was it an action for the recovery of money onfy? Dunn & Witt v. Kanmacher & Stark et al., 26 Ohio St., 498.
    At the time of the adoption of our present constitution plaintiffs had the right to bring and maintain their legal action in the form that they did in this case and to maintain it to a jury free and unaffected by such equitable defense. The code has allowed the joinder of such equitable defenses, but the joinder cannot operate to deprive plaintiffs of a trial by jury of issues the same as they were entitled to try them under the practice as it existed at the adoption of the constitution.
   Shauck, J.

It is accepted as a result of Hull et al. v. Bell Bros. & Co., 54 Ohio St., 228, that the plaintiff in error, being dissatisfied with the judgment of the court of common pleas and desiring to appeal its cause to the circuit court for a trial de novo, was not required to determine at its peril that the cause was appealable; but that it might concurrently prosecute error and appeal, the proceeding in error to be retained by the circuit court until the question of the appealability of the case should be affirmatively determined and then to be dismissed. Such was obviously the view taken by the circuit court, when, after overruling the motion to dismiss the appeal of the plaintiff in error, it dismissed its petition in error. It seems to be worth while to observe in this connection that the jurisdiction of the circuit court over the subject-matter of the controversy between these parties was undoubted. The doubt concerns the method of invoking that jurisdiction. Had the parties all entered, without objection, upon the •trial of the cause upon the appeal, the question of the appealability of the case could not have been thereafter raised, for the case would not fall within the established rule that consent cannot give jurisdiction over the subject-matter where that does not actually exist. But the defendants in error here challenged the propriety of that mode of resorting to the jurisdiction of the circuit court by moving to dismiss the appeal. Their motion being overruled, they took an exception which preserves that question in the record. A petition in error being prosecuted here at a proper time, the ruling of the circuit court on the motion to dismiss the appeal would be subject to reversal by this court when it would be too late to institute a proceeding in error in the circuit court for the reversal of the judgment of the court of common pleas. Such a petition in error is not now before us, nor could it be availingly prosecuted here until a trial of the appeal in the circuit court should result in a judgment more favorable to the appellant than was that of the court of common pleas. The appellant evidently not satisfied that such a fate may not await its appeal, and desiring to poll this court upon that question, files its petition in error here praying for the reversal of the circuit court’s order dismissing its petition in error, but arguing that the order for whose reversal it prays should be affirmed, and the affirmance be placed upon the ground that the appeal, being properly taken, was effective to suspend the judgment of the court of common pleas. Counsel for the defendant in error concur in the view that the question of the appealability of the case is thus presented to us for determination, but they argue that the circuit court erred in overruling the motion to dismiss the appeal and in dismissing the petition in error.

The question does not seem difficult if the statutory provisions affecting it are accepted at their obvious meaning. The appeal was taken under Section 5226, Revised Statutes, which defines the characteristics of a case which may be appealed from the common pleas court to the circuit court. According to its plain requirement the case must be a civil action, it must be within the original jurisdiction of the court of common pleas and the right to demand a jury must not exist. The absence of any one of these three characteristics excludes the case from the category of caseg which may be appealed for a trial de novo. It is admitted that the first and second of these characteristics are present. The presence of the third is denied. Whether it is present or not will be ascertained by applying to the issues presented, the provisions of Section 5130, Revised Statutes, which defines the cases in which a jury may be demanded: “Issues of fact arising in actions for the recovery of money only, or specific, real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided.” By this section the legislature has exercised the power vested in it by the constitution to extend the right of trial by jury to cases which were not so triable at the time of the adoption of that instrument. It is now only approximately correct to say that all equitable actions are appealable. This section in its application to many cases ignores the distinction between actions at law and suits in equity, and extends the right of trial by jury to all actions for the recovery of money only, although the principles upon which a recovery may be had are equitable in their nature and origin, as in actions to enforce liability under the equitable doctrines of contribution and subrogation. It does not, however, extend the right of trial by jury to cases calling for any form of relief peculiar to courts of equity. When the action is for the recovery of money, and no equitable relief is sought, it is an action for money only.

The consideration definitely urged here is, that the legal remedy is inadequate because in the multitude of parties and questions and controverted items of account, there arose such complexity that it was.|iot practicable for the case to be tried and determined by a jury. If both parties were of that opinion it was competent for them to waive a jury, as they did in the court of common pleas, or they might have consented to a reference pursuant to the provisions of the code. But it is obvious that the view thus urged, no form of equitable relief being sought, is but an adverse criticism of the general assembly for enacting Section 5id0- That view derives much support from the point decided, and from the language of the opinion in Black, Receiver, v. Boyd, 50 Ohio St., 46. The right to appeal was sustained in that case, although it was for the purpose of recovering a judgment for the balance upon an account between a bank and its depositor, the account having run for ten years, and containing so many disputed items that the parties alleged their inability to arrive at a settlement. The cases are identical with respect to the considerations in hand, and what is said of the present case may be applied to that. No relation of parties appears, which would authorize a court of equity to compel one party to exhibit an account for the information of the court and his adversary, as in the case of partners or trustees. What is said upon the subject of accounting in equity is not pertinent to either case, because the relations which would authorize a court of equity to require such an accounting do not exist. Here the parties dealt on equal terms, and either believing the other to be indebted to him, might have recourse to an action at law for the recovery of the amount of such indebtedness, resorting to the entire field of legal evidence to support his allegations, that is, being obliged to adduce such evidence as was adduced in the present case. If the case should be tried de novo in the circuit court upon the issues now joined, it would be upon such evidence as is contained in the bill of exceptions there filed with the petition in error, and that is the evidence which would have been submitted to a jury in the court of common pleas in the present case if trial by jury had not been waived. These cases, involving no equitable relief, distinguish themselves from the many cases cited in which courts of equity have rendered judgments for money to enforce obligations resulting from the awarding of equitable relief in the same cases. Further exposition of thé subject would not be profitable for the question calls for nothing more than an application of what this court has already said in Ladd v. James et al., 10 Ohio St., 437; Dunn & Witt v. Kanmacher & Stark et al., 26 Ohio St., 498; Chapman v. Lee, 45 Ohio St., 356; Gunsaullus, Admr., v. Pettit, Admr., 46 Ohio St., 27; Bricker v. Elliott, Admr., 55 Ohio St., 577, and Lange v. Lange et al., 69 Ohio St., 346. Attention to the language of the statute and to the points decided in these cases makes it clear that an action for money is an action for money only unless a recovery is to be aided by the exercise of the powers of a court of chancery to be indicated, not by what the judge may think, but what the case requires him to decree.

Since the publication of the report of Black v. Boyd, it has been often and vainly studied by lawyers and courts seeking some rule by which to determine the number of items in an account which is the basis of an action • for money only, which will engraft an exception upon a statute which confers the right of trial by jury in all such cases without any exception whatever. It has been found impossible to deduce such a rule from the decision or to reconcile the case with the statute or the other decisions under it. The case is overruled.

Judgment reversed.

Price, C. J., Crew, Summers, Spear and Davis, JJ., concur.


author: Price, C. J.

text:
    The Cincinnati Traction Co. v. Durack, Administratrix.

      Motion for verdict at close of plaintiff’s evidence overruled — Exception waived by introduction of evidence, vahen.

    Where on the trial of a civil action, the defendant, at the close of plaintiff’s evidence, moves for a verdict thereon in his favor, and on excepting to the decision of the court overruling said motion, introduces evidence to support his grounds of defense, and rests without renewing the motion at the close of all the evidence, the exception is deemed to be waived, and it is no longer a predicate for error in a reviewing court.
    (No. 10864
    Decided May 19, 1908.)
    Error to the Circuit Court of Hamilton county.
    The case is stated in the opinion.

      Messrs. Kinkead, Rogers & Ellis, for plaintiff in error.

      Mr. Dudley V. Sutphin and Mr. Walter A. DeCamp, for defendant in error.
   Price, C. J.

The defendant in error brought suit in the court of common pleas against the plaintiff in error to recover damages sustained by wrongfully causing the death of the intestate, Michael O’Rourke Durack, who at the time he was injured was employed and acting as a conductor on one of the cars of the company. The petition sets out fully several particular negligent acts and omissions of duty which caused the death of the deceased. It is not necessary to restate here the facts alleged in the amended petition in order to determine the question presented for our consideration.

The traction company answered and denied all the allegations of the amended petition, except that it is a corporation under the laws of Ohio, and a common carrier of passengers for hire in the city of Cincinnati. The answer alleges that the injuries sustained by the deceased were due to his negligence and want of care. This averment is denied by a reply.

The case went to trial, and at the close of the plaintiff’s evidence, the company moved the court to direct a verdict in its favor, which motion was overruled, and the company excepted. Hav-r ing so excepted, it proceeded to make out its defense and introduced its evidence and rested without renewing its motion for a directed verdict. The court instructed the jury, who in due time returned a verdict for the plaintiff assessing her damages at $6,ooo. Within the statutory time, the company filed a motion for new trial assigning the grounds: “(i) Said verdict is not sustained by sufficient evidence and is contrary to law. (2) The court erred on the trial in the following particulars to which the defendant at the time excepted, (a) In admitting evidence offered by the plaintiff and objected to by defendant, (b) In refusing the motion of defendant to strike out certain testimony offered upon behalf of the plaintiff, (c) In overruling the motion of the defendant to instruct the jury to return a verdict for the defendant, (d) In refusing- to admit certain evidence offered by the defendant.”

This motion was overruled and judgment rendered on the verdict. The company entered its exception. A bill of exceptions was prepared, allowed and filed and therewith a petition in error, in the circuit court where the case was heard on error. The following entry shows the result of the proceeding in the latter court. “The said court (common pleas) erred in overruling the motion to direct a verdict for the defendant below, made at the close of the evidence offered by the plaintiff below; that the verdict is not sustained by sufficient evidence; * * *.” The circuit court reversed the judgment of the court of common pleas, granted defendant a new trial, and issued a mandate to the court below to carry the judgment of reversal and for costs into execution.

The traction company excepted “to so much of the foregoing judgment as grants a new trial to the defendant in error and remands the cause to the court of common pleas for that purpose, instead of rendering judgment in favor of the plaintiff in error.”

The case is brought here on error to the circuit court and the error assigned in this court is that, “the said circuit court erred in granting to the said defendant in error a new trial and in remanding the cause to the said court of common pleas for that purpose instead of rendering judgment in favor of this plaintiff in. error on the merits of the cause.”

The plaintiff in error prays in its petition, “that said judgment of said circuit court be modified by a reversal of so much thereof as grants to said defendant in error a new trial, and that this court render final judgment in favor of plaintiff in error * * *.”

From this statement of the case, we are inclined to think that the plaintiff in error obtained from the circuit court more than its dues. That court found that the verdict was not sustained by sufficient evidence, and it also found that the trial court erred in not sustaining the motion of defendant made when the plaintiff rested, to direct a verdict for, the defendant. With those findings the plaintiff in error is content, but it finds fault with the neglect of the circuit court to render judgment in its favor on the motion, after it had held that it should have been sustained, and we are asked to do what the company says the circuit court should have done — sustain the motion and render judgment for plaintiff in error.

We are not convinced that we should do this, for the claim in that behalf is founded on an erroneous application of ■ one or more rules of practice, as we will proceed to show. It is plain that if the motion to direct a verdict was well grounded and should have been sustained when the plaintiff rested, the defendant had an election in case it was overruled by the trial court, as was done in this case, either to stand on the exception to the ruling on its motion and let judgment be entered accordingly, trusting to a review in the higher courts, or, to proceed with its defense. The latter course was pursued in the present case, and the company introduced its testimony, but did not renew the motion for a verdict, and the same was not heard of again until it was mentioned in the motion for a new trial. What is the legal effect of this election ? is the question before. us, and it is so presented in the record as to require decision and report in order that our practice in this regard may be settled.

There are perhaps three views taken of the subject which are properly present for our consideration. One is that where the court overrules the motion of the defendant for a verdict at the close of the plaintiff’s evidence, and the defendant introduces his .evidence to make out the defense, and rests without renewing the motion the exception to the ruling on the motion made is waived and error cannot be assigned on such ruling. Another view suggested is, that where such motion made at the close of plaintiff’s evidence is improperly overruled, and the evidence afterwards introduced by the defendant, and by plaintiff in rebuttal, in no manner strengthens the plaintiff’s case, the motion for verdict at close of plaintiff’s evidence must be given force, since defendant’s waiver of it by going into the defense only goes to the extent of allowing plaintiff to benefit by the evidence afterwards introduced.

The third view is that the exception to the decision of the court denying a motion for verdict at the close of plaintiff’s evidence is not waived by putting in the evidence for the defense, but lives throughout the trial, survives an adverse judgment, and remains as a basis for assigning error in the reviewing court. • The .latter and perhaps the preceding view is held by the plaintiff in error, but the reasons advanced for the claim áre lacking in force and will not bear analysis.

Without renewing the motion for verdict, which would challenge the action of the court on the whole evidence adduced, the defendant consents that the issues go to the jury for decision on the facts, and leaves no question of fact or law to be determined by the court.

In the case at bar, after the motion was overruled, the trial proceeded. The witnesses for defendant were examined and cross-examined. Each party asked for special instructions on the merits. The arguments of counsel were made and the court charged the jury. The jury found for the plaintiff. The defendant’s motion for new trial, among other grounds, alleged that the court erred in not sustaining the motion to direct a verdict at close of plaintiff’s evidence. This part of the motion was too late, for the court should have been given an opportunity before the case was submitted to the jury, by a renewal of the motion for a verdict, to pass upon the sufficiency of the evidence to sustain the plaintiff’s cause of action. Without such action, the trial court had a right to assume that after defendant introduced its evidence, and the plaintiff her rebuttal,, if any, the facts were for the jury and not for the court. And when the case reached the circuit court on error on such a record, that court was asked to pass on the motion for a directed verdict made at close of the plaintiff’s evidence, and it did pass on it and decided that the court of common pleas erred in not sustaining it. If the defendant, by introducing its defense, rested without renewing the motion, waived it, the circuit court should not have so found, and we are not authorized to go still .farther than that court, and render final judgment on the original motion. To render such a judgment would require us to weigh the evidence introduced by both parties.

In,our judgment the defendant lost the benefit of its motion for a verdict by introducing its evidence without afterwards renewing the motion. In other words, proceeding with the defense waived the motion, unless it was afterwards renewed.

The exception to the rule, that if the evidence of the defendant does not strengthen the plaintiff’s case or supply defects in his evidence, no renewal of the motion is necessary, is not well founded. If such is the result of defendant’s evidence, the attention of the trial court should be challenged to that fact, so that it might determine the question. Without such challenge the whole case goes to the jury.

We have no precedent in this state on the subject, because, perhaps, the question has not heretofore been pressed, and so discussed as to require decision. But the courts of several other states have passed on the precise question, holding according to our views, and the federal courts with remarkable uniformity hold the same way. The Supreme Court of the United States in numerous cases has so ruled and it has become the settled practice of the federal courts.

Drawing upon the state courts, we find Noyes, French & Fickett v. Parker, 64 Vermont, 379, where it is said, by introducing evidence upon his part the defendant waives an exception to the action of the court in overruling his motion for a verdict made at the close of the plaintiff’s case. The opinion in that case cites several former decisions of the same question, and the court says on p. 385: “By proceeding with the trial after this ruling of the court, and introducing evidence in defense, the defendant waived this exception. To have availed himself of it he should have rested.”

It is held in Lake Shore & Michigan Southern Ry. Co. v. Richards, 152 Ill., 59, that “a motion made at the close of plaintiff’s evidence to instruct the jury to return a verdict for the defendant is in the nature of a demurrer to evidence, and if the defendant desires' to avail himself thereof he should abide by such motion. By introducing evidence and submitting the case to the jury without renewing the motion, the error, if any, is waived.” The court cites a former decision in Joliet, Aurora & Northern Railivay Co. v. Velie, 140 Ill., 59, which is of like import.

In McGregory v. Prescott, 5 Cush., 67, it is ruled: “If a defendant moves for a non-suit and afterwards offers evidence in defense, this is a waiver of the motion.” In the opinion of the court it is said: “The defendant had no right to require of the judge an opinion upon the weight and sufficiency of the evidence to support the plaintiff’s case, or whether the plaintiff had made out a prima facie case, unless" he meant to leave the case on that evidence to the jury, under the direction of the court. Treating it as a motion for a non-suit, the defendant waived it by offering evidence on his part.” See, also, Chicago & Great Western Railroad Co. v. Wedel, 144 Ill., 9.

The Supreme Court of Michigan in Lynch v. Johnson, 109 Mich., 640, says that, “by putting in proofs after the denial of his motion for a non-suit, defendant waives all rights under the motion.”

And in Illstad v. Anderson, 2 N. Dak., 167, the supreme court decides that, “a motion to dismiss, made at the close of plaintiff’s case, is waived unless renewed after all the evidence is in.”

In City of Greenfield v. Johnson, the Appellate Court of Indiana, 30 App. Ct. Rep., 127, decides that, “alleged error in refusing to direct a verdict for defendant is waived by defendant introducing evidence in its own behalf after the court’s ruling on the motion.” The opinion cites a former decision of that court and other authorities. See, also, Core v. Ohio River R. R. Co., 38 W. Va., 464.

In Barabasz v. Kabat, 91 Md., 53, the following rule is laid down: “When, at the close of the plaintiff’s evidence, the defendant asks the court to instruct the jury that there is no legally sufficient evidence to entitle the plaintiff to recover, and that prayer being refused the defendant proceeds to offer evidence in defense, then on appeal from a judgment in favor of the plaintiff on the whole evidence, the ruling’ of the court on the prayer so offered is not open for review, and if there was error in the ruling it was waived by the defendant.” In commenting on the practice in such instances, where the defendant proceeded with his evidence after a refusal of his motion, that court says: “The question here raised has never been presented in this court, but for the reasons we have given we think the contention of the appellees is logical and correct. It would certainly produce a failure of justice if a verdict of a jury rendered upon the evidence of both parties, and upon instructions at the close of the case, to the granting or refusing of which there was no exception, should be set aside upon an alleged erroneous ruling upon the plaintiffs evidence only; and it would be trifling with the purpose for which courts are created to require the review of an error which, if declared, would not justify a reversal.”

In Hopkins v. Clark et al., 158 N. Y., 299, the court of appeals adds its declaration that, “when a defendant, at the close of the plaintiffs evidence, moves to dismiss the complaint, and the motion being denied, excepts to the ruling and then proceeds with his case and puts in evidence on his part, he thereby waives the exception.” In the opinion, the court furnishes sound reason for the rule as applied in a court of last resort. It is said: “It is the contention of appellants that they are entitled to the benefit of the exception taken to the denial of the motion to dismiss at the close of plaintiff’s case, as that was not strengthened, but was clearly weakened by the defendant’s evidence. In other words, this court is to be asked in all cases to examine the evidence of the defendant, no matter how lengthy it may be, to determine whether defendant shall have the benefit of an exception concerning which all doubt would be removed by his renewing the motion to dismiss at the close of the whole evidence * * The same court in Bopp v. N. Y. Elec. Vehicle Transp. Co., 177 N. Y., 33, again makes the same ruling.

In one of our new states the same question arose and was taken to the supreme court for determination. This determination was had in Bowman v. Eppinger, 1 N. Dak., 21, and is stated as follows: “After plaintiff rested in chief, defendant moved the court to instruct the jury to return a verdict for the defendant, and the motion was overruled, and subsequently defendant put in his evidence.

“Held: That error cannot be assigned on the ruling on the motion for verdict, as the error, if any, was waived by defendant by subsequently introducing his testimony; and held, further, that if defendant desired to preserve the point, he must renew his motion for verdict upon all the evidence in the case.”

These, with many others, are the declarations of the state courts on the point under discussion, and we are not cited to any case holding the contrary. We have no opposite holding in this state. The case of B. & O. R. R. Co. v. McClellan, 69 Ohio St., 142, is not in conflict with the current of opinion, but on the contrary recognizes the practical operation of the approved rule of practice.

When we turn to the pronouncements of the federal courts, we hear -but one voice. We will not cite the numerous decisions of the federal circuit courts, for it is sufficient to ascertain the judgment of the Supreme Court of the United States. The Grand Trunk Ry. Co. v. Cummings, 106 U. S., 700, is treated as a leading case, and it is there held, that “although the refusal at the close of the testimony for plaintiff, to direct a verdict for the defendant would justify a. reversal of a judgment against them, yet if they proceed with their defense and introduce testimony which is not in the record, the judgment on the verdict which the jury, under proper instructions, find against them, will not be reversed on account of that refusal.” This is the rule applied to the particular circumstances . of that case. That court spoke again in Accident Ins. Co. v. Crandal, 120 U. S., 527, in the following terse proposition: “The refusal of the court to instruct the jury, at the close of the plaintiffs evidence, that he is not entitled to recover, cannot be assigned for error, if the defendant afterwards introduces evidence.” Again in Union Ins. Co. v. Smith, 124 U. S., 405, it was said: “A motion by the defendant at the close of the plaintiff’s testimony, to take the case from the jury, was properly refused, because it was a motion for a peremptory non-suit against the will of the plaintiff, and it was waived by the introduction by the defendant of testimony in the further progress of the case.” The same rule is laid down in Robertson v. Perkins, 129 U. S., 233.

The question was again before that court in Columbia & Puget Sound Railroad Co. v. Hawthorne, 144 U. S., 202, and it was said that, “the refusal to direct a verdict for the defendant at the close of the plaintiff’s evidence and when defendant has not rested his case, cannot be assigned for error.”

In Bogk v. Gassert, 149 U. S., 17, the same rule is repeated, and in the opinion of the court by Justice Brown, it is said: “A defendant has an undoubted right to stand upon his motion for a non-suit, and have his writ of error if it be refused, but he has no right to insist upon his exception, after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplied the missing link, and if not, he moves to take the case from the jury upon the conclusion of the entire testimony.”

See, also, Union Pac. Railway Co. v. Daniels, 152 U. S., 684; Wilson v. Haley Live Stock Co., 153 U. S., 39; Union Pac. Railway Co. v. Callaghan, 161 U. S., 91, and Hansen v. Boyd, same report, 397.

We have thus set the authorities in array, and we find that by the consensus of the federal authorities, the motion for a verdict at the close of plaintiff’s evidence is waived by the defendant, when he subsequently introduces his testimony in defense, without regard to its renewal at the end of all the evidence, while the state courts from whom we have quoted hold to the same rule, to-wit: unless the defendant renew his motion for a verdict at the close of all the evidence. Giving due consideration to the reasons which underlie the various decisions, we are disposed to hold, that the exception to the motion for a verdict at close of plaintiff’s evidence, is waived by the defendant by introducing his defense, unless the motion be renewed at the end of the whole evidence, and if it be so renewed it challenges the sufficiency of plaintiff’s evidence taken in connection with the facts which appear in the evidence introduced by the defendant. We think the application of this form of the rule will be fair to both parties in the trial of a cause, and on its review in the higher courts.

It follows from the foregoing that the circuit court did not err in refusing to enter judgment on the motion for verdict at close of plaintiff’s evidence, and that its judgment remanding the case for new trial should be affirmed.

Judgment affirmed.

Si-iauck, Crew, Summers, Spear and Davis, JJ-, concur.