Alabama & Vicksburg Railway Co. v. Turnbull

71 Miss. 1029 | Miss. | 1894

Woods, J.,

delivered the opinion'of the court.

The first and third replications of the plaintiff' in the court below to the second plea of the defendant may be disregarded by us. The first replication denies the execution of the release pleaded by defendant, and the third asserts that the release was obtained by imposition and misrepresentation practiced upon and made to the plaintiff by defendant’s, agent, who procured the release, as to the character of the paper signed, the plaintiff being made to believe that the release was only designéd to cover the expenses of his illness, and to compensate him for his loss of time resulting from the injuries complained of in the declaration to this suit. These attacks upon the release, however, were not pressed. There is no sufficient, evidence which will entitle them to any examiziation.

The second replication embraces the matters setup in the third, but it also sets up the real grounds upon which the plaintiff' seeks to defeat and destroy the release, and to this second replication we address ourselves.

It is contended that the release was procured by a disregai’d of the professional relation which the physician bore to-his patient, and by the concealment from the patient of the relation which the physician sustained to the railway company; and it is also further contended that the appellee was-induced to make the release by certain misrepresentations-made to him by the eminent physician who attended him, and by the claim agent of the railway company who effected the settlement with him now sought to be avoided under the replication we are considering.

Let us examine, in the light of the evidence offered by the appellee, these alleged misrepresentations and test their-character. They will be found to rest upon statements said, by the appellee and his wife, to have been made by the physician and the railway company’s agent touching the nature azid extent of the appellee’s injuries. The former, it is asserted, deelaz’ed to the appellee that he would be well in three or four weeks, and would, therefore, be able to do his accustomed work, whereby the patient was imposed upon and deceived, and misled into signing the release. It must be remembered that the injuries had been inflicted two weeks before the settlement was effected; that the injured man was so far on the way to recovery as to dress and sit up; and that he was that day discharged by his physician as one not requiring further personal attention at his hands. As matter of fact, the man needed no medical attention for several days thereafter, when he had what he denominates a “set back.” It appeared that the patient was on the way to sure recovery, under the circumstances just narrated. It was natural for the physician, learned and skilled as he was and is, to believe, and to give expression to his belief, that his patient would soon.be well again. It was, however, the expression of an opinion only — an opinion, in our judgment, reasonably founded upon the then existing conditions. It turns out that the unhappy man’s injuries were lasting and very much more serious than was then supposed; but we are not to pass upon the then apparent state of the hurt in the light of the after developments of the case. The most learned and accomplished man in the medical and surgical ranks makes no pretense to pierce the darkness of futurity and foretell its secrets. He looks at what is before him and judges for the present, just as do all others. The opinion of the physician in this instance was an honest one, a reasonable one, a just one as the case then stood.

These remarks apply with equal force to the supposed misrepresentations of the railway company’s agent. There was only an expression of his opinion as to the injured man’s then condition, and a rash conjecture of a layman as to the outcome of the hurt. Surely, it is not to be seriously contended that the claim agent’s guaranty of perfect health in a given short time was relied upon by the appellee in executing the release. The injured man was neither insane nor idiotic, and a ridiculous guaranty of sound health by a railway stock claim adjuster could not mislead or deceive any sane man.

Was there, then, any abuse of professional confidence on the part of the physician by which the patient was misled and deluded into making the settlement? The burden of the complaint of appellee is that the physician clid not disclose to him the fact that the railway company’s surgeon was his physician, and that he thought the physician was representing him alone in the transaction.

According to appellee’s evidence, Dr. Johnston had never been his physician, and, though his wife had, when unmarried, been attended in illness by this well-known medical man, yet, after her marriage with appellee, year’s before the date of appellee’s hurt, as we infer from the number of children born to them, Dr. Johnston had never seen her professionally. He was not appellee’s family physician. He was not appellee’s chosen and trusted medical adviser. On this particular occasion, Dr. Johnston had been called to see and treat appellee by the compress company, and this the appellee knew, as he testified, and the fees of the physician were to be paid by the compress company, as appellee’s evidence clearly shows he also well knew. More than this, the appellee knew that the two offers — first, of $25, and, second, of $50 — were propositions sent by the railway company through the physician. Dr. Johnston was not his medium of com.municating propositions for settlement to the company, but was the agency through which the railway company was seeking to make a settlement with appellee. Furthermore, it is deducible from the evidence of appellee that he did not rely upon his confidence in Dr. Johnston in making the settlement, for he says himself that when the first offer of $25 was made him by the physician, he declined, on the express ground that he had not conferred with any one on the subject. Or, as he put it: “I have not had no one to confer with no way; haven’t even talked to my wife, and am not .prepared to give you no answer.”

The evidence offered by the appellee in support of his replication is not clear and convincing and indubitable that-the release was procured by fraud or misrepresentation, and this it must be before the settlement can be avoided. We must regard the ease as a court of equity would a bill filed to cancel a contract on the ground of fraud, and it is impossible to conceive of that court canceling any ordinary contract for fraud on the evidence offered by appellee in the case at bar in support of his effort to avoid this release.

The appellee’s case is, as appears from his evidence, a hard one, and excites our sympathy. He is permanently and seriously disabled, we are inclined to believe. He has made what after developments show, perhaps, was an unwise settlement; but he did not rush into it immediately after he was injured, nor did he precipitately accept an offer. He was first offered $25, then, at a later day, $50, and, several days afterward, $75, and, last of- all, $100. He had time for deliberation and for conference with others. He finally accepted the last offer, an offer which then seemed not unreasonable, remembering the railway company assumed payment of all his bills incurred during his illness. It now appears that the sum received was not commensurate with the injury suffered; but that in no way affects the present controversy. It is not to be forgotten, we'say in conclusion, that the appellee rested on this settlement for nearly a year before bringing this suit.

Hard as the appellee’s case appears to be, we cannot open the door to unsettle the faith of men dealing with each other-in the binding force of contracts solemnly entered into, by avoiding the effect of this release upon the wholly unsatisfactory evidence of fraud or misrepresentation found in appellee’s testimony.

The judgment of the court below will be reversed and the verdict set aside, but, for the reasons already given, the first verdict cannot be re-instated.

Reversed..