Perry v. M. O'Neil & Co.
Ohio Supreme Court
Error to the Circuit Court of Summit county. In 1902 the plaintiff went into the store of the defendant to make a purchase and fell through an opening in the floor and was injured. In 1903 she commenced an action against the Company to recover for her injuries. The Company answered denying the averments of the petition and setting up a release.
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Error to the Circuit Court of Summit county. In 1902 the plaintiff went into the store of the defendant to make a purchase and fell through an opening in the floor and was injured. In 1903 she commenced an action against the Company to recover for her injuries. The Company answered denying the averments of the petition and setting up a release. A reply was filed by the plaintiff but, it is said, when the cause came on for hearing it was discovered that no tender had been made, as required by the ruling in The Manhattan Life Ins. Co. v. Burke, 69 Ohio St., 294, and so the case was dismissed…
1Opinion of the CourtSummers, J.
It is said by counsel that the circuit court held that the trial court erred in refusing to instruct the jury that the release is a bar to a recovery by the plaintiff for the reason that the plaintiff could not maintain an action for damages for her injuries until the release had been set aside in a suit in equity. If a party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action, when he denies the execution of the release, or that it is his act, on the ground of want of mental…
2Cases cited27 opinions
- George v. TateSupreme Court of the United States · 1881
- Union Pacific Railway Co. v. HarrisSupreme Court of the United States · 1895
- Och v. Missouri, Kansas & Texas Railway Co.Supreme Court of Missouri · 1895
- O'Donnell v. Inhabitants of ClintonMassachusetts Supreme Judicial Court · 1888
- Blair v. Chicago & Alton RailroadSupreme Court of Missouri · 1886
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