Opinion
07-01-1889
CONNER v. DUNDEE CHEMICAL WORKS.
J. H. Backes and John T. Dunn, for complainant. J. W. Griggs, for defendant.
Bill for relief and perpetual injunction.
J. H. Backes and John T. Dunn, for complainant. J. W. Griggs, for defendant.
BIRD, V. C. Mrs. Conner, as the administrator of her late husband, asks for an injunction restraining the defendant from pleading and offering in evidence, in an action at law now pending which she has commenced to recover damages from the defendant for the death of her husband, a release given by the complainant under her hand and seal. Her husband was in the employ of the defendant as lead-burner, and was very skillful in his trade. While engaged in and about their business, on the 1st day of September, 1887, he was killed. He had been living with his wife some miles away. The next day his body was taken to his home at that place. Mr. Johnson was the treasurer of the company, and one of its directors, and also its attorney. Just before the arrival of the body at her house, Mr. Johnson called and informed Mrs. Conner that the body would soon be there. He expressed regret at the death of her husband, and told her that the company would be at the expense of the funeral. The company paid this bill, in all $146. Within a few days after the funeral, Mr. Johnson, learning from an old gentleman, a friend of Mrs. Conner, that he was going to see her to tell her to take out letters of administration on her husband's estate, sent word by him to her that she should call and see him when she came for her letters. He also left word with the surrogate for her to the effect that he would like to see her. On the 13th of the same month of September, she called on the surrogate, and was by him informed of the wish of Mr. Johnson, as she had also been by the other gentleman. Mr. Johnson's office being near by that of the surrogate, she, with Mrs. Ellis, a lady friend, called upon him. Mr. Johnson says that, after some conversation with her about the accident, and its mysterious nature, he said to her, "I understand that you intend to bring suit against the company?" to which she replied, "O no!" and he then said, "If you do, I have nothing more to say; but if you do not, I will on behalf of the company give you something." It appears that in this connection something was said about her right to sue the company, or the liability of the company in such case to an action; for he says that he told her that the defendant was not liable, and that he did not know if any one was, but if any one was it was the ForsithPowder Works. He then offered her $5 per week for one year. Mrs. Ellis desired him to make it $10, which he refused to do, but said, in order that she might be kept whole, he would pay the costs of the letters of administration. Mrs. Conner at once signified a willingness to accept this offer, when Mr. Johnson said to her that she could take time to think about it, and to consult her friends, to which she replied that she did not want to consult her friends, for too many were making themselves busy about her business. Mrs. Conner and Mrs. Ellis went to the surrogate's office, and in a short time returned again to the office of Mr. Johnson. They then informed him that Mrs. Conner was willing to close up the matter. Soon the surrogate came in, and Mr. Johnson stated the arrangement to him in the presence of Mrs. Conner. He then said to Mrs. Conner that he expected her to sign a written release, which he at once prepared, or had already prepared. He read the release to her in the presence of the surrogate. Mrs. Conner signed it and acknowledged it.
I think the one fact of chief importance to be had in mind is that Mr. Johnson told Mrs. Conner that the defendant was not responsible, but that if anybody was it was the Forsith Powder Works. Mrs. Conner asks to have the use of this release in the action at law restrained, because it was procured by fraudulent means or devices. To procure this release, I do not find that any willful misrepresentations were made by Mr. Johnson, or that any arts whatever were used by him to mislead Mrs. Conner. Mrs. Conner and Mrs. Ellis both say that he told them that he made the offer as a matter of kindness, but Mr. Johnson very emphatically denies using any such expression. He says that he proposed a settlement, and nothing else. This, however, I do not think at all material. It seems to me that when the whole case is attentively read and considered it will very clearly appear that the release ought not to stand in the way of the action at law. Laying entirely aside the great bereavement from which Mrs. Conner was then suffering, every one who saw the contracting parties on the witness stand and heard their statements, would at once be impressed most forcibly with the very great disparity between them, in business experience, in mental capacity or natural endowments, in intellectual training, and in force of character. Mrs. Conner is not only very dull by nature, but her education is exceedingly limited, and as to experience in the affairs of trade or business she has had none. She is of the stature of a woman, but the merest child in the knowledge of the ways of mankind in all of their dealings with each other, while Mr. Johnson is at the extreme opposite of this, and, besides being trained to business, he is an able and experienced lawyer of the highest repute for ability and fair dealing. All men rejoice in these virtues, and glory in the fact that they are estimated so highly and bear so much weight in all human transactions. But this is the ascendency and the advantage which, when exerted, whether by design or not, the law regards as undue influence, and protects the weak against with the most zealous care. But in this case these inestimable qualities gave Mr. Johnson a tremendous advantage over Mrs. Conner, and the circumstances all conspire, without the slightest design on his part, to enable him to impose his own terms, and to induce her to accept whatever he might say as in all respects true. See Troxall V. Silverthorn, 45 N. J. Eq——, 12 Atl. Rep. 614.
Notice the circumstances: Mrs. Conner was poor, living in the lowly walks of life. Mr. Johnson, a citizen and a lawyer of distinction, calls upon her in the midst of her deepest distress, and makes the kindliest suggestions respecting the burial of her dead husband. He sends word to her by a friend that he would like to see her at his office, and again requests the surrogate to ask her to call; and when she called he told her that if the offer which he made is accepted he would see that the costs of the letters of administration would be paid by the company. When all of these considerations are brought in review it will be most readily understood why it was that she at once accepted the statement of Mr. Johnson that the defendant was not responsible, but that if any one was it was the Forsith Powder Company, who owned the tank which had burst and killed Mr. Conner, without the slightest questioning, and acted upon it in the most implicit confidence. This acceptance of his statement is shown by the fact that when he told her to go and consult her friends she declined to do so. She did not consult any further; for believing, as she did, that what he said was true,—that is, that she had no legal claim upon the defendant company,—it was most natural for her to accept what she could get from them as a gift, as she understood it, although Mr. Johnson did not so understand it. I have no doubt but that Mr. Johnson meant to express only his opinion when he said that the company was not liable, but Mrs. Conner accepted it as a fact; hence she acted upon the belief that she had no right to an action against the defendant. This being so, I do not see how a court of equity can regard the release as binding upon Mrs. Conner. J think that the injunction heretofore granted should be made perpetual, with costs.