ARK.] ROBINSON V. MO. PAC. TRANSPORTATION Co. 593 ROBINSON V. MISSOURI PACIFIC TRANSPORTATION ' COMPANY,. . 4-4276 Opinion delivered April 20, 1936. 1. RELEASE.—It is unnecessary to return or tender the consideration for a release obtained by fraud as a requisite to the maintenance of an action for damages. 2. JUDGMENT.—All questions within the issue, whether formally litigated or not, are settled by the judgment of the court. 3. APPEAL AND ERROR.—Plaintiff sued for damages for personal injuries; on trial it appeared that plaintiff had received $65 for a release from liability, which release, she alleged, was secured by fraud. Since the sum paid was less than the excess of sum sued for over amount of verdict, it will be presumed that the jury took the $65 payment into consideration. Appeal from Pulaski Chancery COurt ; E. R: Parham, Special Chancellor ; reversed.' r Kenneth' CO felt -and-Wm.- J. Kirby; for appellants. Carmichael <0 Hendricks, for appellee. • METIAFFY, J. The 6ppéllant, Mrs. Fearney Robin-son, brought suit in the Saline Circtit . Court against' the appellee for $3,000 *damages, alleging that she was *injured by* the negligence of the appellee. The appellee filed answer and among other things, alleged in the answer "that its agent, in good faith and without prejudice, paid the full amount that apPellee deinanded, and that said payment discharged any and all claims for injury." There was a verdict . and judgment for $2,500 in favor
.594 ROBINSON. V. • MO. PAC. TliANSPORTATION CO. [192 of appellant, Mrs. Robinson, and appeal was prosecuted, and oh October 14; 1935, the judgment of the Saline Circuit Court -was affirmed : by this cOurt. Robinson. v. Mis-souri Pac. T: Co.; 191 Ark. 428; 86 S. W. (.2d) 913. • • On December 9, 1935, -the appellee filed suit in • the Pulaski Chancery Court against Mrs. Fearney Robinson, Kenneth C. Coffelt, W. J: Kirby, Thomas . C. Watson, 1VI. M. Blakeley,' Dr.• William Feldman, Dr. A. • J. McGill, Ethel Jacoway and R. J. Ashby. The petition in this case alleged that the Missouri Pacific • Transportation Company had paid to Mrs: Fearney Robinson, the. sum of $65, a day or two after the injury, in full settlement of her claim, and that that amount has never been refunded to it. It prayed that an order be made by the PulaAi Chancery Court that the amount of $65 be paid to it out of any funds in the • court going to Mrs. Fearney Robinson. . ; Appellants filed answer denying the allegations in the petition, and alleging that the matter had already been passed upon by a court of 'competent jurisdiction, and that the Missouri Pacific Transportation Company has no right or claim to any portion of the money, and that Mts. Robinson is not indebted to appellee in any sum for anything. The case was tried in the chancery court on the following.agreed statement; of facts : ; "Comes on for hearing the petition of the plaintiff, MissOuri Pacific Trans-Tortation 'Company, asking. that the court . allow it $65 out of the fund paid into the registry of : this court in the sabove cause •adjudged to be. dpe Mrs. F .earney Robinson, and the answer ! of. defendant, 'Mrs. Fearney Robinson, to said petition, and 'both parties agreeing : that the cause may. be submitted to the court .for decision npon said petition ;of plaintiff,' and the answer, thereto of said •fendant, •and upon -the lollowing. agreed .statement of facts, to-wit:;.,: . . • "On the:3d day of •Novembet, 1934, Mrs. Fearney RObinson,: defendant herein, filed suit in the' circuit court 'of Saline County; Arkansas,. against • the plaintiff . herein, Missouri Pacific Transportation.Company, alleging; that
ABIK . ] ROBINSON V. MO. PAC. TBANSPORTAnON Co. 595 she. was• 'negligently i njUrea by • it : because of a • defect . in a certain metal stripping on the floor of its bus, when; in .attempting tO : alight from its bus at . Bentom-on or- about - said date; she fell tO the• groun& "She alleged that, Within a feW hetirs thereafter,-the company fraudn1en0 obtained • a • releaSettoni her . fin the consideration of $65, releasing it from-any further liability: to her for her •said injury.. Deferidant• company answered, ;denying all of plaintiff's: allegations in . her complaint, and charged' her with . .contributOrY negligence. The cause was. tried before: 'a court and jury at the March term of said circuit : court,1935, and the jury rendered a verdict.for her in the sum- of $2;500, she having sued for $3,000, • and• in . her : coMplaint aSked that : said release :be : set 'aside. The canse was . appealed by • the Missouri Pacific Transportation :Company to the Supreme -Court of the State of Arkansas,: and...on the
day of , 1935; the eause was affirmed, by . the ,Su preme. Court. On the. •_ • • day• of - - , 1935; said company . filed in this,: the .chancery court of 'Pulaski, _County, Arkansas, its bill, of .interpleader,..in-:which it,.paid. into the .registry : ;of ,this court said, judgment of . $2,500 and accrued interest :and cost , which had been affirmed.by the Supreme Court,. alleging that certain parties; including said , MT.s..Fearney Robinson, had different interests in- said sum, and asking that said ,court decree as to whom and in . what amounts .said money should be 'paid. • This court has decreed that out . Of said fund $70073 shall go to. said Mrs.. Fearney _ • • .. "It-is. further agreed that. Mrs. Fearney TtobilAson actually received the• $65; and . there was no issue .made in the trial of the original suit y as to its return, and no instruction was given:in reference . to its return..' : ' • Appellee states' that this Case preSents . tWo questions : First, Is the: question res judicdte Second; Is •appellec entitled to the return of the Inoney paid for the release? Appellee calls attention 'first ' to the 'case . of 0: A Pattison v. Sedttle, Renton : & SoUthern-Railwdu Co:, 64 Wash: : 370, 116 Pac.. : 1089, 35' L. (N.-8.) .660: • It
596 ROBINSON V. MO. PAC. TRANSPORTATION 'CO. [192 quotes from said case the following : "Aceording to the larger number of cases, it is unnecessary to return or tender the consideration for a release obtained by fraud, as a requisite to the maintenance of a suit for the damages resulting from the injury, it being sufficient that the amount be deducted from the verdict if one is obtained against defendant." Among the larger number of cases are the cases decided by this court. It is the eStablished rule of this court that it is unnecessary to •return or tender the consideration for a release obtained by fraud, as a requisite to the maintenance of a suit for damages. This was Tecognized by appellee in the .case in- the Saline Circuit Court. It did not ask the return of the $65. It is, however, conceded by appellee that the rule established by this court is that it is unnecessary to tender or return the consideration. . Appellee next cites and quotes. from 53 C. J. 1232. Immediately following the quotation from C. J., in the same paragraph, is the following: "But there is authority to the effect that such restoration or tender need not be made." The text cites several Arkansas cases. • In fact, it has been many times held by this court that a tender or return is not necessary. A recent Case is Missouri Pacific Railroad Company v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528. Appellee cites and relies on the case of Cowling v. Nelson, 76 Ark. 146, 88 S. W. 913, in which it is . stated: " This is true, and his aetion bound her in everything which the partition suit could validly accomplish—a. partition of the lands and, where it is found incapable of partition without great prejudice, then a sale. These are the Only issuable matters to be presented. On them she is bound. Beyond them she is not." Then follows the quotation relied on by appellee :. "Litigants do not place themselves for all purposes under the control of the court; and it is only the interests involved in the particular suit that can be affected by the adjudication. Over other matters the court has no jurisdiction, and any decree or judgment relating to them is.void.".
'ARK.] ROBINSON V. MO. PAC. TRANSPORTATION..CO. 597 - The release in this case was pleaded by appellee, and the appellant, Mrs. Robinson, admitted that she had receiVed. the $65. *We have many times held that all questions within the issue; whether formally litigated or not, are settled by the decision of the court. "It is well-settled doctrine in . this jurisdiction 'that -0. judgment of a court of competent jurisdiction is, conclusive of all questions within the issue, whether formally litigated or not. It . extends not only to . questions of fact and law which were decided in the former suit, .but also to the grounds, of recovery or defense ; which. might have .been, but were-.not, presented." ; Jamison v. Hen-derson, 189 Ark.. 204, 71 S. W. (2d) 696; West 12th St.. Road Imp: Dist. No. 30 v. Kinstley, 189 Ark. 126, 70 W. (2d) 555 ;- Ogden v. Pulaski County, 189 Ark: 341, 71 S. W. (2d) 1062; Coleman v. Mitchell, 172 Ark. 619,. 290 S. W. 64; Connell Spec. Sch. Dist. No. 6 v. Haggett, 172 .Ark. 681, 290 S. W. 577; Robertson. v. Evans, 180 Ark. 420, 21 S. MT . (2d) 610; Morris & Co. v. AleXander &.Co.,. 180 Ark. 735, 22 -S. W. (2d) 558; Shorten v..Erotherhood of Rd. Traimnen, 182 Ark. , 646, 32 S.., W (2d) 304; Barney v. Texarkana, 185 Ark. 1123, 51 S. W. (2d) 509 ;' Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. (2d) 735. It is next contended by appellee that it is entitled. to the return of the money, or wds 'entitled to have it credited on the judgment. The suit was for $3,000. The appellee in this case alleged that it had paid $65. The jury returned a verdict for $2,500. It cannot be said --that the jury -did not take -into consideration .the $65 alreadY paid. There' was no request made 'that this question he submitted to the jury. There'was no request of the , court after judgment, that :the $65 be Credited On the judgment. In the suit .in the circuit court Mrs. Robinson ad-. milted that she received the $65, a payment on the iden.- tical claim involved in her suit. • From the authorities above cited, it clearly appears 'that the rule is, in this conrt, that all matters within.the issues are settled .hy the judgment whether •litigated or
598 ROBINSON V. MO. PAC. TRANSPORTATION 'CO. [192 not. When one brings suit for $3,000 and admits that she has already been paid $65, and there is a verdict for only $2,500, it cannot be said that the jury did not consider the $65 payment. • In the case of Capital Fire Ins. Co. v. Montgomery, 81 Ark. 508, 99 S. W. 687, suit was brought agairist the insurance company for $575 . upon a fire insurance policy issued to Montgomery on his dwelling house and furniture. The insitrarice coinpany pleaded a written' release of liability alleged to have been executed 'by the plaintiff in consideration of the sum of $25 paid to him as a compromise, and the further sum of $11.15 unearned pre--mium paid to him: The jury returned a verdict for $575, the full amount sued•for. It was Said: "Appellant.was ' entitled to credit on the amount of liability under . the policy for the sum paid to' him. We assume that' the -court inStructed the jury to that effect. The jury : returned a verdict for the amount of- the loss , without in-. .terest. The interest up to the date of the verdict -was sufficient to cover the amount of payment, and we assume that the: jury allowed the credits in that way." • In the instant case• there was no request by either party for an instruction with reference to the release, or amount paid, but the undisputed proof was that : the transportation company paid, and Mrs.' Robinson received $65, and the furesumption is that this Was considered bY the jury. If one should bring suit alleging that another owed him $1,000, and the defendant answered alleging that he paid him $100, and . that that was all he owed s him, and that he took his receipt in full, and the Jury returned a verdict for $750, there could be no doubt that the jury took into consideration the payment which had been made. We think there can be no doubt in this case that the jury took this into consideration. The transportation Company was entitled to a credit for the $65, but as we have already said it . was settled by the verdict and judgment under : the well-established rides of this court.- Moreover, after the judgment was rendered no . request was made by the apPellee to the trial cortrt to deduct the $65 from the $2,500 judgment. If
AR K. 599 this requeSt had 'been made at the time, there.Would have been no difficulty in finding out whether the:jury did . or did not , take. this into •consideration. • • • • Under . .the welf-established rule of this court; •this matter was settled by the judgment in the, Saline. Circuit Court because 'it was, within the issues and could 'have heen settled whether it was. litigated .or not. . The.decree of the ehancery : court•is reVerse4and the cause is remanded with directions to dismiSs the petition, Or
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.