Clark v. Southern Can Co.

Pattison, J., delivered the opinion of the Court. In this case the appellant, an infant, by her father* and next friend, brought suit in the Court of Common Pleas, against the appellant company to recover for personal injuries sustained by her on or about March 1st, 1909, while employed by the company in the operation of a cap cutting machine. To this action the defendant company pleaded, first, that it did not commit the wrong alleged, and second, “that the father and next friend of the said infant plaintiff, did heretofore institute a suit at law in this Court for the benefit of said infant, based upon the same cause of action sued for herein, and that the said father and next friend of said infant did compromise and settle said suit and said cause of action, and that the said father and next friend did before this suit, by his deed under seal, release the defendant from any and all claims that may or might have existed against it by reason.of the cause of action herein sued for. The plaintiff joined issue on the first plea, and replied to the second, alleging that the release mentioned therein was procured by the deceit, misrepresentation and fraud of the defendant, its agents, servants or employees.

The defendants in their rejoinder thereto denied the facts alleged in the replication. In the course of the trial eight exceptions were taken by the plaintiff to the admission of testimony and at the conclusion of the plaintiff’s case four prayers were submitted to the Court by the defendants. The Court was asked in the first ⁸⁷ prayer to instruct the jury that there was no legally sufficient evidence to entitle the plaintiff to recover; in the second that the accident was caused by the1 negligence of the plaintiff; in the third, that as the uncontradicted evidence in the case showed the institution, compromise and settlement by James Clark, father and next friend of the plaintiff, of a former suit in the same Court and for the same accident as alleged in the second plea, the verdict of “the jury must he for the defendant, because under the pleadings in this case there is no evidence legally sufficient to show fraud, misrepresentation or deceit on the part of the defendant, its agents or servants in the procurement of the compromise and settlement of said suit;” and by the fourth prayer, the Court was asked to instruct the jury as follows: “That as the following facts appear from the plaintiff’s own testimony in this case: 1. “The plaintiff herein by James Clark, her next friend, has heretofore brought a suit in this very Court to recover for the same accident, on account of which this suit is brought. 2. “That the said prior suit was compromised and settled by the said James Clark and a proper order of agreement and settlement was duly entered by. order of the said James Clark’s attorney in the said case, heretofore filed in this Court. 3. “That the said order to enter the said ease agreed and settled is still valid and subsisting and has never been attacked by any proceeding instituted directly for that purpose. “Therefore the verdict of the jury must he for the defendant.” The Court granted all of said prayers, to the granting of which the appellant excepted, thus making the ninth exception. We will first consider the ruling of the Court in granting the fourth prayer. ⁸⁸ This accident occurred on the first day of March, 1909.

An attorney, Eldridge H. Young, was promptly consulted, and on the 18th day of the same month filed by titling two suits, one on behalf of the infant for the injuries suffered by her, and the other on behalf of the father for the loss of his daughter’s services. Eive days thereafter, on the 23rd day of March, the plaintiff, for a nominal consideration of one dollar as therein stated, executed under seal a release to the.defendant company releasing and discharging it from any and all liability by reason of said injuries. In this release the plaintiff alleges that she was injured on or about the, 1st day of March, 1909, while in the employment of the defendant company, under circumstances, which as she claimed, rendered the company liable to her in damages, although such liability was, as therein stated, denied by the company. It further stated that the execution of the release was pursuant to a desire of both parties that the matter should be settled and adjusted.

In addition thereto the father, likewise, executed, under seal, to the defendant company a release wherin he, in consideration of the said sum of one dollar paid to his daughter at his request, acknowledged full satisfaction of all claims out of said injuries and released the said company of any liability by reason thereof. .Some days thereafter Eldridge H. Young, counsel for the plaintiff, was notified by postal card stamped as of the 27th of March, 1909, written by the sister with the knowledge of the plaintiff and with the name of the plaintiff signed thereto, that she wished to discontinue the suit against the defendant company. The card was worded as follows; “Mr. Young — I have changed my mind about the case against the Southern Can Company for Mary Clark, as he gave us steady work, and we took it and went to work, so I don’t think will be any use bothering.” Mr. Young promptly replied to this card and in answer thereto his client, a few days thereafter, called a.t his office and said to him that the agent of the company had come to her home. That the company had either turned her sister off, or was going to turn ⁸⁹ her off from work unless the ease was settled. That he promised they would take her back to work, and she had signed the paper settling the case.

Young having heard that the defendant company was represented by Gans & Hainan, he called upon them and they likewise told him of the release, hut stated that it was obtained before they were retained as counsel in the case. Young did not ask to see the release and it was not shown to him. He, however, discussed with them the payment of the costs of the case as well as the fee that he claimed should be paid to him by the defendant company, because, as he expressed it “they settled the case over my head.” Messrs. Gans & Hainan declined to consider the payment of a fee, but took under consideration the payment of the costs, and in a few days thereafter wrote him as follows: “Oun client is willing to pay the costs in these cases provided the same are ‘entered, agreed and settled.’ They are not, however, willing to do anything more than this.” The next day Young called upon Gans & Hainan and directed them to prepare the papers necessary to effect the settlement suggested hy them in the aforegoing letter.

In response thereto they prepared and sent to him, which was thereafter signed by his client, James Clark, father of the infant plaintiff, the following release: “This release, made this 16th day of April, in the year 1909, by James Clark individually and also as next friend of and on behalf of his infant daughter, Mary Clark. “Whereas, the said Mary Clark was injured on or about the first day of March, 1909, hy working in the employment of the Southern Can Company, a corporation; “And whereas, the said Mary Clark and the said James Clark claim the said injury was caused by the negligence of the said company or its agents, and two suits were subsequently brought against the said company in the Court of Common Pleas of Baltimore City, one hy the said Mary Clark and the other by James Clark, her father; ⁹⁰ “Whereas, the said Mary Clark and James Clark subsequently agreed to dismiss said suits and settle any claim that they or either of them have against said company; “Wow, therefore, this Release Witnesseth, That in consideration of the sum of one dollar, receipt whereof is hereby acknowledged, and other good and valuable considerations, the said James Clark, on his own behalf and also as father and next friend of his infant daughter, Mary Clark, and acting in her behalf, does hereby release, acquit, exonerate and discharge the said Southern Can Company, corporation, of and from any and all suit, action, claim or demand of any claim whatsoever that the said Mary Clark now has or may have against said company, or that he, the said James Clark, now has or may have against said company by reason of the loss of services of his said infant daughter. “Witness the hand and seal of the said James Clark, individually and as father and next friend of the said Mary Clark. Test: J. C. Wheeleb, E. H. Young." James Clabk, (Seal) Individually, and as father and as next friend of Mary Ciarla, infant.” The above release was executed by Clark through and at the request of Young. Upon the execution of the release it was delivered to Gans & Hainan with the orders to enter the cases “agreed and settled.” The orders were filed April 22st, 1910, and upon that day, as shown by the docket entries, the case were marked “agreed and settled.” The costs in the cases, including an appearance fee to Young of five dollars in each case, were paid by Gans & Hainan. The evidence further discloses that both the plaintiff and the sister returned to their work in the employment of the defendant company.

The sister, after working for a short-while, was taken sick, and by reason thereof remained at home for several weeks. When she returned she was assigned to work which she claimed was much less desirable than that which she had been doing, and complained to- one, Hunk, the employee in charge of the department in which she worked. He replied saying that it was all he had, and if she ⁹¹ did not like it she knew what to do; she left. The plaintiff remained at her work for a week thereafter, and, as testified to by the sister, was sent home, but the cause therefor was not stated.

The plaintiff in her testimony makes no reference to the fact she was sent home. Late in the spring or early in the summer of the same year (1909) the plaintiff again called upon Young, who stated to him fully and, as he says, with greater detail than she had hitherto done, what was said and done by Funk, the agent of the defendant corporation at the time he, Funk, procured for the company the execution of the release by her and her father, and it is upon what was said and1 done by Funk at such time that the plaintiff bases the allegation of misrepresentation, deceit and fraud in the procurement of the release then executed. After making this statement she asked him to institute another suit. He declined, however, to do so, saying the matter was out of his hands.

It was then that the plaintiff accompanied by Young called upon and retained' Mr. Richardson, her present counsel. This, as stated above, was late in the spring or early in the summer of 1909, and although her counsel has since that time been in full possession of the