St. Louis S. F. R. Co. v. Bruner , 61 Okla. 313 ( 1916 )

This action was commenced in the district court of Creek county by the defendant in error, hereinafter styled plaintiff, against the plaintiff in error, hereinafter styled defendant, to recover damages for injuries received because of the running away of a team attached to a vehicle in which plaintiff was riding, resulting in plaintiff being thrown to the ground and injured. Litigation arising out of this accident has been before this court in case of St. Louis San Francisco Railroad Co. v. Mollie Bruner, 52 Okla. 349, 152 P. 1103, and the case of St. Louis San Francisco Railroad Co. v. A.D. Bruner,56 Okla. 682, 156 P. 649.

Among other defenses pleaded by the defendant in its answer was the execution by plaintiff, in consideration of the sum of $50, of a release discharging defendant from all liability arising out of said accident. To the answer of defendant plaintiff replied, denying generally each and every allegation of new matter therein contained, and denying that she ever accepted any sum of money from defendant or signed any release, or released said defendant from any liability for its wrongful and negligent acts. Plaintiff further alleged in said reply that, if she did sign any release at any time, the same was obtained by fraud and without consideration, and the same is void. This reply was not verified.

At the conclusion of the evidence of plaintiff, defendant demurred thereto, which demurrer was overruled, and exception saved to such ruling by the defendant. At the conclusion of the case defendant moved for a directed verdict, which motion was overruled, and exception saved to such ruling. Plaintiff recovered judgment for the sum of $750, and defendant prosecutes this proceeding in error to reverse the same.

Defendant makes several assignments of error, but we deem it only necessary for a determination of this case to consider the assignment that the court erred in overruling the demurrer of defendant to the evidence of plaintiff. The plaintiff not having verified her reply to the answer of defendant, the execution of the release set up in defendant's answer was admitted, and the burden was upon the plaintiff to establish the facts alleged in her reply seeking to avoid such release. St. Louis San Francisco Railroad Co. v. Bruner, 52 Okla. 349,152 P. 1103, and cases therein cited.

Plaintiff offered no evidence in chief tending to show that the release relied upon by defendant was obtained by fraud or without consideration, nor did she offer any evidence whatever tending to impeach such release.

Settlements and compromises fairly made and in good faith are favored by the law as a discouragement to litigation, and in the absence of evidence tending to impeach a compromise settlement entered into in a personal injury case, on any of the grounds sufficient in law to avoid such settlement, such settlement will be upheld. St. Louis San Francisco Railroad Co. v. Chester, 41 Okla. 369, 138 P. 150.

The plaintiff having failed to offer any evidence upon which the release relied upon by the defendant could legally be set aside, the trial court erred in overruling the demurrer of the defendant to the evidence of plaintiff.

This cause should be reversed and remanded, with directions to grant defendant a new trial.

By the Court: It is so ordered.