Great Northern Ry. Co. v. Reid, 245 F. 86

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245 F. 86 | 9th Cir. | 1917

WOLVERTON, District Judge.

[1] The question presented for decision is whether the release should be canceled for fraud or mistake. The release itself is as broad as it could be made, acquitting the company of all liability arising on account of the injuries received by appellee, whether then appearing or growing out of the same by development in the future, or arising or to arise out of any and all personal injuries sustained at any time or place while in the employ of the railway company prior to the date of the release. In such a release, however, the general language will he held not to include a particular injury, then unknown to both parlies, of a character so serious as clearly to indicate that, if it had been known, the release would not have been signed. This was the conclusion reached in Lumley v. Wabash R. Co. (C. C. A. 6th Circuit) 76 Fed. 66, 22 C. C. A. 60. See, also, Tatman v. Philadelphia, B. & W. R. Co. (Del. Ch.) 85 Atl. 716.

[2, 3] From the testimony, it is perfectly apparent that there was no fraud whatever attending the transaction of giving the release. Considerable concern was manifested by the claim agent that the affair should be speedily closed, but the appellee suffered no disadvantage by reason thereof. The appellee had come to Great Falls, a distance of 40 miles, of his own accord, with a view to getting relief of some sort from the company for his injuries. Having met Burton, he was taken to the office of the company’s physician, and, after examination, repaired to the claim agent’s office, where the release was *90soon signed. That he understood what he was signing, and the nature and purpose thereof, can scarcely be gainsaid. It is evident that he believed he was but slightly.hurt, and was seemingly anxious to get back to his work, and, so believing, he was willing to accept $10 and acquit the company of further liability.

Whether he knew and understood the full nature and extent of the real injuries sustained is the vital question for consideration. The proofs fall far short of substantiating the complaint as to the nature and extent of his injuries, and at present, according to the medical experts, his physical afflictions consist of arteriosclerosis, double inguinal hernia, and double flatfoot. It is not at all probable that the first of these conditions was superinduced by the accident. The evidence does not, in any substantial way,' indicate that such was the case. The third, namely, double flatfoot, existed prior to the accident, and was not caused thereby, while as to the right foot the condition may have been, and probably was, somewhat aggravated. As to the hernia, he had been so afflicted upon the right side for the space of three years, and thus far the accident has not contributed consequentially to his ailment. The hernia upon his left side had not developed prior to the accident. The first indication that he had of its existence was the next day,' when he says he “discovered something down there where it hurt.” Later, however, the trouble became well defined, and on February 26, 1916, when he was examined by Dr. Downs, it was about the size of a walnut. It further appears, however, that at the time of the trial appellee’s body was poorly nourished, and that his general health and physical condition were far from good. Such was not the case to the same degree at the time of the accident, for he was doing his work, with some inconvenience only in getting about on account of his feet.

The rule unquestionably applies to settlements of the kind here involved that they neither can nor ought to be impeached and set aside for fraud or mistake, except upon clear and convincing proofs. Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913, 54 C. C. A. 147. Has the. appellee met the exigency ? For upon him was devolved the burden of so impeaching the release.

As we have seen, no conceivable fraud has been established. That appellee did receive a shock from being thrown against the sink, resulting in some distress to himself, can scarcely be questioned. At that time he was not afflicted with an inguinal hernia on his left side. The following day he experienced pain in that region of his person, and later the hernia developed, so that it became well defined. That he was so afflicted on February 26, 1916, is shown by Dr. Downs, who is corroborated in this by Dr. Longeway and Dr. Marshall. So it appears reasonably clear and certain that the development of this particular trouble began at least about the time of the accident, and that he was then afflicted in a way that was not known to him, and which for that reason ,was not disclosed to tire physician, and consequently not taken into consideration when he settled with the claim agent and gave the release. We think that, under the authorities, there is here sufficient to impeach *91the settlement in so far as it relates to this phase of the controversy, and to that extent the release should be set aside.

[4] We agree with the court below that it should not be disturbed as it respects the injury to his foot. Lumley v. Wabash R. Co., supra, is authority for the partial impeachment of the release. Upon the general question of annulling such a release, see, further, Great Northern Ry. Co. v. Fowler, 136 Fed. 118, 69 C. C. A. 106, where the authorities are aptly and clearly discussed and distinguished; also Tatman v. Phil., B. & W. R. Co., supra.

[5] Another contention of appellant is that appellee is estopped from urging the annulment of the release on the ground that he refused to remove his clothing, so that the physican might examine his arm and shoulder, which appellee seemed to think were injured somewhat. That particular supposed injury, however, was not taken into account at the time of the settlement, and no question is made of it in this proceeding, and the incident is not of sufficient consequential importance to base an estoppel upon it against inquiry as to the real injuries sustained.

Decree affirmed.