Toledo & Ohio Cent. Ry. v. Coleman

Citations

• 22 Ohio C.C. Dec. 746

Syllabus

<p>NEGLIGENCE — PLEADING—RELEASE.</p> <p>1. Release for Personal Injuries Voidable but not Void Established Requires Instructed Verdict for Defendant.</p> <p>Where, in an action for damages resulting from injuries alleged to have been sustained through the negligence of the defendant, the answer sets forth as a defense that the plaintiff in writing released the defendant from all claims resulting from such alleged negligence, and the reply sets forth facts which, if established, would render such release voidable, and further fact which, if established, would render such release void, and there is evidence tending to establish the facts which might render . the release voidable only, but no evidence tending to establish the facts necessary to be established to render the release void, it is the duty of the court, on motion of the defendant, to instruct the jury to return a verdict for the defendant.</p> <p>2. One Dollar Consideration hor Release.</p> <p>One dollar is sufficient consideration, in law, to sustain such release.</p> <p>3. Voidable Release cannot be Pleaded in Reply to Defense of Release Executed.</p> <p>Pacts that, if established, would render the release void, may be pleaded in the reply by way of avoidance of the defense of release; but if the facts would render the release voidable only, and not void, the plaintiff cannot avail himself thereof by way of reply.</p> <p>4. Cancellation of Voidable Release for Injuries Received not Obtainable in Reply to Defense Interposed.</p> <p>If the release is voidable only and not void, the plaintiff cannot maintain his action while it stands uncanceled, and he cannot seek its cancellation in a reply but must do so by petition in a suit in equity for that purpose only, or as a cause of action in the same suit in which he seeks to recover damages for the injury. Perry v. O’Neil & Oo. 78 Ohio St. 200, followed.</p>