7 Utah 335 | Utah | 1891
The plaintiffs and their infant son, Stewart Eccles, were passengers on a train on the defendant’s road, and were injured by an accident to the train on the 30th day of January, 1890, alleged to have been caused by ■ the negligence of the defendant, and this action is to recover damages for the injuries sustained. The defendant pleaded a settlement and release, and this was the defense
The ground relied on for reversal is that the verdict of the jury is not supported by the evidence. At the time of the accident, Jeannette Eccles, who is the wife of her co-plaintiff, Samuel H. Eccles, was advanced about seven months in pregnancy. The settlement was made and the release executed on the 11th day of Eebruary, 1890, and on the 1st day of March following, Jeannette Eccles gave birth to an eight-months child. Plaintiffs claim that they settled with the defendant under a mistaken belief, induced by the statement of Dr. Perkins, a physician in the employment of the defendant, as to the extent of the injuries to Jeannette Eccles; that she feared a miscarriage, and was not willing to settle, until it should be known there was no danger of such a result, but that, upon the assurance of Dr. Perkins that there was no danger of that kind to be apprehended, she was induced to settle, and that she did not understand the release to include her entire claim for damages in case her injuries should cause her to give premature birth to her child. The release by its terms includes all claims and demands of the plaintiffs for the injuries sued for in this action, and there is no claim of fraud in procuring its execution by plaintiff, but it is sought to be avoided, on the ground of mistake, as to the extent of the injuries to Jeannette Eccles at the time of its execution. There is no dispute in the evidence as to the material facts, and the sole question for our determination is whether the verdict is supported by the evidence.
The accident occurred between Aspen, Wyo., and Ogden, Dtah, on the evening of January 30, 1890, and the train reached Ogden about four o’clock a. m. of January 31st. Jeannette Eccles testified that she saw Dr.
She further testified that she “ did not read the release, but it was read aloud by Mr. Fisher;” that she listened to it as much as she could, but was suffering with nervous headache at the time; that the night before she signed the release her husband had told her the amount he had settled for, and that the persons who insisted on her signing the release were her husband and her father-in-law; and that the relations between herself and husband were pleasant. She also testified that Dr. Allan, a regular practicing physician of Ogden, had attended her from the time of the injury until the release was signed, and had made an examination of her person to see how seriously she was injured, and that he visited her the day before she signed the release; and that her mother-in-law, who was the mother of a large family, and experienced in nursing, was her nurse. She further testified that she thought she was settling only for the injury to her child, Stewart, and for her husband’s loss of time. Samuel H. Eccles, the husband, and one of the plaintiffs, testified that, when Fisher came to his house to settle, he signed; but that his wife declined to sign the release, and said she “didn’t know what might happen yet, and she would sooner wait a while;” that Fisher was there about an hour, and that Fisher and he and his father told her she might as well sign. He also testified that Fisher read the release aloud before any one signed; that he “understood the agreement before signing it, just as it is;” that he did nothing more than advise his wife to sign the release, and that no one did
We think the foregoing testimony of the plaintiffs, together with more of a similar character, clearly establishes that, in making the settlement and executing the release, the possibility that Mrs. • Eccles might give premature birth to her child was taken into the account, and was understood by both parties to be covered by the release. Dr. Perkins5 statement, made in less that twenty-four hours after the injury, could not have been understood by her, eleven days after the accident, as the statement of an absolute fact on which she should rely in settling, but merely as the expression of an opinion as to the probable results of her injuries. Besides that, she had a physician of her own in constant attendance, with whom she could and doubtless did, consult as to the probable effect of her injuries. Eo fraud is claimed to have been practiced by the defendant in making the settlement. The husband, who executed the release at the same time, understood the release according to its terms, and advised Mrs. Eccles, as did the other members of the family, to sign it. It does not appear that any element of damages was omitted from consideration, nor that any fact was misstated by defer.dant in order to procure her signature, nor that any fact was misunderstood by her, or that undue influence was exercised to induce her to settle. She was advised, through her husband, before she talked with Eisher, of the state of the negotiations for settlement and of the amount and of the terms of settlement; but hesitated about settling for the sole reason that, notwithstanding Dr. Perkins5 statement as to the probabilities of a miscarriage, she feared such a result might happen; but, notwithstanding such doubts, she settled, and signed the release, and we think she is bound by .it,