
    A. P. LOMAX, Appellant, v. SOUTHWEST MISSOURI ELECTRIC RAILWAY COMPANY, Respondent.
    Kansas City Court of Appeals,
    May 16, 1904.
    DECEIT: Pleading: Petition: Release. A petition set out in the opinion, seeking to recover damages for fraudulently inducing plaintiff to execute a release discharging defendant from liability on account of personal injuries sustained by plaintiff in a railroad collision, is examined and held not to state a cause of action, since plaintiff’s original cause of action for his personal injuries remains to him if the release as alleged is fraudulent.
    Appeal from Jasper Circuit Court. — Hon. Hugh Babbs, Judge.
    Affirmed.
    
      Shammon & Shannon for appellant.
    (1) Under the allegations of the petition the release obtained of appellant was not void, but voidable. 14 Am. and Eng. Ency. Law (2 Ed.), p. 156. (2) The fraud in obtaining the release is sufficiently pleaded. Martin v. Lutkewitte, 50 Mo. 58; Link. v. Link, 48 Mo. App. 345; Reed v. Bott, 100 Mo. 62. (3) Every element of a cause of action for deceit is set forth in the petition. 14 Am. and Eng. Ency of Law (2 Ed.), p. 23. (4) Eliminating the allegation of deceit the petition states a cause of action for the reason that it alleges such a mental condition of appellant as to impose upon respondent the burden of proving that the release in question was obtained by fair means. 14 Am. and Eng. Ency. Law (2 Ed.), p. 194. (5) When a person who has. been drawn into a contract by fraud does not seek to rescind the same, but merely seeks to recover the damages sustained by reason of tbe fraud, be is not required to return, or offer to return, what he has received under tbe contract. 14 Am. and Eng. Ency. Law (2 Ed.), p. 168; Parker v. Marquis, 64 Mo. 38; Nauman v. Oberle, 90 Mo. 666; Brownlow v. "Wollard, 61 Mo. App. 124.
    
      McReynolds & Halliburton for respondent.
    (1) If tbe statements in plaintiff’s amended petition are true, then plaintiff’s original cause of action is in full force and effect, and authorities in tbis and other States are abundant upon tbis point, as well as our own code, which specially provides for tbe meeting of tbe issue of fraudulent releases, such as are alleged to have been obtained in tbis ease. R. S. 1899, sec. 654; Courtney v. Blackwell, 150 Mo. 245; G-oodson v. Accident Ass’n, 91 Mo. App. 351; Roberts v. Lead Co., 95 Mo. 581. (2) In so far as it appears from plaintiff’s amended petition one hundred dollars may have been tbe full amount of bis compensatory or actual damages and the $4,400, claimed as punitive damages, if tbis be true, and be bas been paid in full' for compensatory damages sustained, then be can not maintain an action for punitive damages, for actual damages must be found as a predicate for tbe recovery of exemplary or punitive damages. Hoagland v. Amusement Co., 170 Mo. 335; Mills v. Taylor, 85 Mo. App. Ill; 1 Sutherland on Damages (2 Ed.),sec.406; Maxwell v.Kennedy, 50 Wis. 648; Scbeppel v. Norton, 38 Kan. 567; Jones v. Mathews, 75 Tex. 1; Kuhn v. Railroad, 74 Iowa 137; Stacey v. Pub. Co., 68 Me. 287. (3) Another course under tbe practice of our courts stands open to tbe plaintiff in tbis case “to invoke tbe ancient jurisdiction of equity to eliminate by cancellation, tbe paper as an impediment to tbe enjoyment of bis rights, its validity not appearing on its face. Roberts v. Lead Co., 95 Mo. App. 581; Dunn v. Miller, 96 Mo. 324.
   BROAUDUS, J.

This case went off on a demurrer to the plaintiff’s amended petition. This latter after setting out the negligent acts of the defendant hy which plaintiff alleges he was injured in his person and for which he claims he was entitled to recover from defendant actual and punitive damages in the sum of ,$4,500, proceeds as follows:

“Plaintiff further says that immediately after said collision, the defendant, for the purpose of ingratiating itself into the confidence and esteem of the plaintiff, and for the purpose of acquiring an influence over him and excluding him from his friends and depriving him of the advice of counsel, took possession of the plaintiff and placed him in a hospital in Joplin, Missouri, and caused him to he cared for hy nurses and physicians, and thereby did ingratiate itself into the confidence and esteem of plaintiff. That thereafter, while plaintiff was still suffering in body and mind as a result of the aforesaid injuries, and while he was not in possession of his mental faculties sufficiently to comprehend or rationally judge of the effect and extent of his aforesaid injuries, and to comprehend and determine the cause of the same, and the responsibility of the defendant therefor, and while his mental faculties were depressed and disordered so as to render him unfit to transact business, and before he had learned that said collision and the injuries resulting to himself therefrom were due to the carelessness and negligence of defendant, the said defendant, while knowing the aforesaid condition of the plaintiff and all the aforesaid facts through its agents, physicians and servants, by means of false and fraudulent representations and pretenses, and hy means of an undue influence over plaintiff acquired hy the manner and means hereinbefore stated, and hy taking advantage of the ignorance of plaintiff in relation to the cause and extent of his injuries, and hy depriving him of the advice of his friends and of counsel, obtained from plaintiff a ■written release discharging the defendant from all liability on account of his aforesaid injuries, for and in consideration of the sum of $100 paid by defendant to plaintiff. That for the purpose of obtaining said written release the agents, physicians and servants of defendant falsely and fraudulently represented and pretended to the plaintiff that his aforesaid injuries were slight and that he would soon recover entirely from the same, and that defendant would pay plaintiff $100 for said release only because plaintiff was an old man, and that they were paying the younger men who were hurt in said collision much smaller amounts, thereby leading plaintiff to believe that said $100 was being offered to him by defendant largely as a gratuity and thereby further ingratiating itself into the confidence and esteem of plaintiff. That plaintiff by reason of the aforesaid apparent kindness and consideration of defendant towards him confided in and was induced to sign and deliver said written release for and in consideration of the said $100. That the said agents, physicians and servants of defendant then and there well knew that the said representations and pretenses were false and that the plaintiff was deceived thereby. Wherefore, the plaintiff says that he has been damaged in the sum of $4,500 by the defendant by being induced to sign the aforesaid release discharging the defendant from all liability on account of the said injuries sustained by him in the aforesaid collision, for which amount and for his costs herein he asked judgment.”

The petition is thought to be without a precedent. It is noticeable that it is not an action to set aside a release obtained by fraud, and for a finding and judgment for plaintiff for the damages he had sustained by reason of the negligence of the defendant, but is for damages alleged to have been sustained for the deceit in obtaining the release itself. Plaintiff relies on the case of Parker v. Marquis, 64 Mo. 38, and kindred cases, where it is held: “A party defrauded on a contract may stand by it, even after be discovers tbe fraud, and recover damages resulting from tbe fraud, or may rescind tbe contract and recover back wbat be bas paid or sold. ’ ’

But tbis is an entirely different case.' If tbe allegations of tbe petition are true, and for tbe purpose of tbe demurrer tbey must be so taken, tbe release is void both in law and equity, and in executing tbe release tbe plaintiff parted with nothing. His original cause of action which was tbe property, if any, in dispute, re-. mains to him. Tbe defendant is still liable to him for tbe damages be sustained, if any, notwithstanding tbe fraudulent release. Nothing further need be said about tbe cause.

Affirmed.

All concur.  