155 P. 446 | Utah | 1916
The plaintiff brought this action to recover damages for personal injuries which he alleged he sustained through the negligence of the defendant. The defendant denied the alleged negligence and pleaded contributory -negligence and assumption of risk. The defendant also set up a settlement and two releases as a bar to the action. The releases relied on were made a part of the answer. The plaintiff replied to the latter defense confessing the settlement and execution of the releases, but sought to avoid the legal effect thereof; The material allegations in the reply are as follows:
“Plaintiff says that, at the time of the execution and delivery of each of said-releases, he was wholly ignorant of the character and extent of the result of said injuries, and that the defendant was fully acquainted with reference thereto; and refrained from informing plaintiff, in any wise, or at all; as to the character and extent of the injuries in said release mentioned and referred to. And that plaintiff was not aware of the necessity of amputating the said finger until about the 25th day of February, 1914. ’ ’
The plaintiff further says that the injury was to the index finger of his left hand, and that he was treated in a certain hospital at the request of the defendant, and that it after-wards became necessary to amputate his finger. The reply then continues as follows:
“That during all of said times and especially at the time of the taking of said release, the defendant knew, or by the exercise of ordinary care it might have known, that said amputation was inevitable, but of which plaintiff was wholly ignor
The foregoing are the sole grounds upon which the releases were sought to be avoided, except that it was alleged that the twenty-five dollars paid to, and received, by the plaintiff, was a mere nominal and “wholly inadequate” consideration.
At the trial it developed that in assisting others to unload and transfer freight from defendant’s depot platform at Ogden, Utah, the plaintiff had the index finger of his left hand injured; that on the day after the injury plaintiff signed a general release for the expressed consideration of one dollar; that thereafter he received treatment at the hands of a doctor employed by the defendant; that in a few days the finger improved, and the plaintiff went to work again for the defendant as before; that after working some days the finger seemed to get worse again, and plaintiff ceased working; that after quitting work plaintiff frequently went to see one Jed Abbott, who, it appears, was the claim agent for the defendant, to obtain an additional sum of money, that is, an amount in addition to what he had released the defendant for in the general release ; that after making a number of visits to Mr. Abbott, as plaintiff says, he and Mr. Abbott agreed upon a further sum to be, and which was duly paid plaintiff, to wit, the sum of twenty-five dollars, for which he executed a further release which in part reads as follows:
“In consideration whereof, I release said Oregon Short Line Railroad Company * * * from all claims, demands, or causes of action for damages of every description, or for personal injuries of every kind and character, sustained in or growing out of said accident, or for complications arising from such injuries or treatment thereof. ’ ’
Plaintiff was injured on the 16th day of November, 1913. After that time he went to work as before stated, and on the ,12th day of December following, he executed the second re
Upon substantially the foregoing facts the defendant moved the court to direct the jury to return a verdict in its favor upon the ground that at least the second release constituted a complete bar to the action. The court refused to so charge the jury, but submitted the case to them upon the facts aforesaid and upon the law given them by the court. The jury returned a verdict in favor of the plaintiff, upon which the court entered judgment, from which the defendant appeals.
The defendant now insists that the court erred in refusing to direct the jury to return a verdict in its favor, for the reason that the undisputed facts show that the cause of action, declared on was settled between the parties, and that the release aforesaid is a complete bar to the action. The theory upon which the court based its refusal to grant defendant’s: request is perhaps best reflected by giving the court’s- own language in its charge to the jury upon that question. The court, among other things, charged as follows:
“If therefore you should find from the evidence that at the time the said releases were executed and delivered by plaintiff it was not contemplated by either plaintiff or defendant that it might or would become necessary to amputate plain
“ ‘That where a party, who has a claim against another for personal injuries, agrees upon a settlement of his claim, and accepts a sum of money or other thing of value in settlement of such claim, he is, in the absence of fraud or concealment, concluded in the settlement, is a proposition sustained, as we think, by one unbroken line of authority,’ citing numerous cases.”
In his brief, in referring to this question, he says ¡
“We present the question if, or not, the releases pleaded by the appellant in this case were not a ‘contract,’ ‘regulation,’ and ‘device,’ the ‘purpose and intent of which’ was to enable the common carrier to exempt itself from a liability created by this legislation ? ’ ’
Defendant also presents the further question that the court erred in refusing to grant its motion for a non-suit upon the ground that no negligence was shown on its part, and that the plaintiff was guilty of contributory negligence and had assumed the risk as a matter of law. Plaintiff’s counsel insists that the action is one arising under the federal statute, ahd hence the latter two defenses are not available.
As to the first contention, counsel also insists that it is covered by that statute. Counsel for plaintiff also insists that the decisions of the federal courts are in his favor upon those questions, while counsel for the defendant contend that they are in their favor. The question is not free from doubt, arid, if it were not for the fact that the cause is completely disposed of by the settlement and release we have just passed on, we should give, counsel the benefit of our views, although the questions raised are all federal questions, and their final determination is for the federal, and not for the state, courts. In view, however, that the cause is fully disposed of otherwise, and that we do not consider federal questions unless it is absolutely necessary to do so, we refrain from expressing any opinion upon the questions presented by the motion for non-suit. In passing upon those questions now we might easily bring about complications which may be avoided by waiting until the Supreme Court of the United States, the final arbiter, has settled them.
For the reasons stated, the judgment is reversed, and the case is remanded to the District Court of Weber County, with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs.