*1 20 lookout, required and maintain constant not
relaxing vigilance role not cast herself her she did negligent guest. of a careless concluding justified in deceased The trial court was affirmed, negligence. judgment guilty not respondent. costs to McDONOUGH, J., WADE, WOLFE,
PRATT, C. JJ, concur. & DENVER RIO GRANDE
KIRCHGESTNER R. CO.
W.
May 17,
(218
685).
P.2d,
Decided
1950
No. 7370.
14,1950 (118
P.2d., 754).
Rehearing granted
37;
Dec.
Utah
225
699).
41;
Judgment
(118
P.2d.,
reversed June
Utah
*2
injury
re-
Settlement
sec. 54. Personal
See 15
C.J.S., Compromise
*3
Rawlings, Black & Roberts and L. City, respondent. Lake for all Salt WOLFE, Justice. brought Employers' action under the Federal
This seq. Safety Appli- Liability Act, 51 et and the 45 U.S.C.A. § seq. by respondent, рlain- Act, 45 11 et ance U.S.C.A. § disabling below, damages permanent tiff to recover injuries allegedly performance sustained him while appellant railroad com- of his duties as a brakeman for days alleged mishap, pany, defendant Ten after the below. general plaintiff in re- consideration of executed a $135 discharging arising liability all lease the defendant from upon The defendant out of the accident. relied this release plaintiff’s action but the as a bar to the found that the release had entered into under mutual a mistake оf plaintiff’s physical to the condition and fact as awarded damages in him the amount of $4300. plaintiff, to the
Taking evidence most favorable attempting to 26, 1948, he was on June while appears that working on he was of the train which of the cars one board grasped rung grab-iron he Colorado, Salida, a near ground, striking his causing to fall to the him came loose experienced effect against boulder; no serious he back ached; morning his back next when the fall until the from hospital thereupon at Dr. Smith he consulted one X-ray employеes railroad who took maintained Salida anything back, being unable to find pictures of his pills back, gave plaintiff to take wrong some with consequently nerves; continued and the ache for his days he Dr. R. Fuller at the later consulted C. four or five right.” “all hospital him that he be assured would same who Merrill, July 6, 1948, the trainmaster’s one Thereafter Colorado, Pueblo, see clerk at Salida sent agent, Sayger. plain- Before the railroad’s claim M. V. Sayger telephoned him Fuller and asked tiff arrived Dr. physically return work. able to affirmatively. When the reach- Fullеr answered Dr. Sayger’s if he was able ed the latter asked him office replied was able. return to work and plaintiff’s condition There no other discussion as to the testimony injuries. There is a conflict in the or his Sayger at the amount plaintiff and as to how arrived Sayger settlement. The testified that as a $135 basing $125, that amount on the loss earn- offered him *4 ings plaintiff plaintiff. the stated that sustained Sayger agreed. to which wanted $135 plaintiff signed purported re- which the The release plaintiff might the had or thereafter all claims which lease sustained, personаl injuries any all have for and unknown, apparent unapparent, or and for or then known The release recited that the services. loss of against make no further claim that he could understood 24 injuries proved more though to be railroad even
the them to be. he then knew than or different serious appeal upon this principal contention The defendant’s allege produce evidence failed to the is set aside entitled of facts which ground it had executed mutual mis under a entered into legal release from effect of a take of fact. Since Liability Employment arising Feleral liability under the law, determine governed must federal we Act is according to that law. contention the defendant’s merit of 757, Co., Cir., 164 Pennsylvania 153 F. 2d R. 2 Ricketts v. Railway, Cir., 164 2 387; R. Irish v. Central Vermont A. L. Cir., Thompson Camp, F. 2d 837; 396. F. 2d Supreme pronouncement of the Court The latest arising claims dealing release of with the United States Liability Employers’ Act Callen v. Federal under the Ry. Co., 92 L. Ed. Pennsylvania U. 68 Ct. S. S. brakeman, claimed to plaintiff, railroad There the 242. jumped injury to when he for suffered an his back have moving safety For a consideration from a railroad car. general claims release of all for he executed a $250 expense personal and for loss time against might have the railroad. he then had or thereafter agreement The release recited that read receive. was all he Later and understood $250 an under Federal Em- commenced action damages Liability alleged ployer’s an Act to recover injury. permanent He testified that he read and back doing, release, what he in- understood the knew might tended to further claim that hе have waive against railroad, he executed the release in agent’s upon reliance the claim assurance that “there was right nothing wrong” go that he “was all back to job”. procured The railroad no medical had examina- agent plaintiff. tion the claim While admitted that
25 the know he did not the settlement at the time of injuries doctors suffering from it did described, railroad contended at the trial and extent to the nature not act from mistake as for injuries with him plaintiff’s but settled $250 Supreme liability part. no on its The there was it believed judgment of Third Circuit Court affirmed the Court jury holding Appeals that under the evidence it was a of mistake as to acted from both injuries. plaintiff’s extent of the nature and set case in which a release was Another recent federal Thompson ground fact is of mutual mistake of aside Irving Camp Cir., Camp, 396. There one F. 2d Fran- working Louis-San for the while as a switchman St. other Railway a brain concussion cisco Co. suffered days. rendering He for three him unconscious employed a hospitalized a doctor and treated (Camp) dues contributed hospital which he association to receiving hospital and medical benefits. privilege of for the occurred, Camp pro- after the accident Over a month go could back by the doctor and told he nounced “O.K.” agent railroad Camp for the contacted claim work. part liability Camp no on the there was who told railroad, for railroad would settle $500 Camp lost approximately had the amount which was earnings. place Camp’s con- No took discussion as health, or had been his trouble when dition what accepted Camp and executed would be well. $500 liability general absolving the railroad from might future. he then have claims which had Camp later from a returned to work but died two weeks Camp’s hemorrhage. es- The administratrix cerebral brought against tate an action the railroad in which by Camp upon release executed was relied bar to in the court found that the cerebral action. trial hemorrhage by Camp suffered was the result of brain
concussion he sustained. The also found the release had been executed a mutual mistake of under damages fact and аwarded administratrix in the $35,000. Appeals amount of The Sixth Circuit Court upheld jury’s finding taking because the evidence appeared most favorable to administratrix Camp “O.K.”; had told been doctor that he his go work; require that he could back to that he would not treatment; further medical and that he was not admon- physical activity. ished his doctor to restrict his The jury’s evidence was also held to warrant conclusion agent laboring the claim under the mistake of Camp fact had recovered from his Camp he knew had released from his care doсtor’s making work, settlement in order to return to be- cause there was no discussion toas his health or his condi- work, tion to return to and because the settlement was entirely upon Camp’s earnings. based almost loss A third recent case which is illuminative on the involved in the instant case is Union Railroad Co. Pacific Zimmer, App. 87 Cal. 2d 197 P. 2d 365. There working the defendant while as a railroad switchman sus- surgeon tained an elbow employ fracture. A in the operated railroad on the arm and it in a set cast. When later, surgeon cast was removed weeks informed the defendant that: going right. “Your go arm isn’t to be stiff. Your arm is all You down get get
to Omaha, they want to see you; it settled up hack to work.” proceeded The defendant to Omaha he where was first private physician examined who informed him that yet his arm had improvement not reached maximum but improve elapsed. would as time The railroad’s claim agent had the defendant’s arm examined two railroad surgeons reported who the arm “will come out all right” “you good and that anyway.” will have a arm following day the defendant in consideration of re- $965 might оr that he had railroad from all claims leased the against injuries sustained, have it for thereafter greater than and whether or unknown then known later the months then attempted them to be. Two believed perform return to was unable to work but impairment of as a switchman because his duties subsequently operations performed arm. Two were proved arm, unsuccessful the defendant’s but both disability. partial apparent permanent left him an with willingness pay expressed the defendant The railroad wages for the additional an additional $2600 $2500 payment de- lost, consummated. The no such was ever *7 re-payment consideration with of fendant tendered the attempted thereon, and to rescind release on interest grounds refused fraud and mistake. The railroad of brought for declaration of its an action to tender and rights the trial found under the The court release. fraud, issue found in favor of the railroad on the binding it the release not valid that was under mutual mistake as to the serious- entered into injury and that the of the defendant’s ness and duration effectively court rescinded. The district release had been holding judgment appeal court, trial of the affirmed jury’s finding had entered that the release been that the fully supported of fact was a mutual mistake into under by The court stated: the evidence. repel suggestion strongly presented that the railroad “The facts injury purchase single payment of to absolution from an $965
intended present subsequently permanent as the one turned out to as serious and company -willingness negotiate apparent officials to The be. a. * * * lost, weight time lends on the basis of additional further settlement defendant) hand, (the the other is inconceivable that to this view. On wages accepted equal a few months lost in full settle- a sum would have disabling injury. permanent think the evidence as a whole for a We ment understanding supports the conclusion that shared a mistaken both (defendant’s) serious, not such the condition of the arm was but was that that disability reasonably any temporary resulting therefrom would be of showing, properly granted. relief v. short duration. On his See Steel Co., Y., 688, 689; Corp., Erie R. D. C. N. 54 F. 2d Scheer v. Rockne Motors 2 942, 945; Thompson 401; Cir., Camp, Cir., F F. Great 68 2d v. 6 163 2d 28
Northern Albritton, Railway Cir., Co. F. 2d v. Fowler, 280.” Cir., [136] F. 118; Lion Oil Refining Co. by its case, defendant Turning to the instant now plain by the general pleaded executed answer reply, plaintiff, The tiff as a his action. bar into alleged entered that the release had been plaintiff had parties under the belief both personal injury and that he suffered serious not fall, completely of his when from the effects had recovered crippling had a serious in fact the suffered sign injury him soon after which became evident ing authority dis of the cases of the release. Under above, a mutual the issue of there was cussed jury. There properly to the mistake fact was submitted competent parties entered evidence that into both alleged release under the belief The had belief was in fact erroneous. said to find examined two doctors who had been unable wrong anything him and one of whom had told with him right”. plaintiff expressed to that he would be “all Sayger thought he return to was able to work. Dr. Sayger Fuller had assured was able Sayger return to work. testified that he not at did know suffering disabling time that from a injury making back and admitted that the settlement *8 (Sayger) upon аcted that mistaken belief. The fact closely approximates that the amount of the settlement earnings what the had lost in anis indication that parties upon both acted plaintiff’s the that belief the sufferings at an were end or would be short-lived. We express opinion no whether a would be presented sought had the not medical advice and believing injuries had no thus basis for superficial, were Sayger knowledge or had plaintiff’s without of the physical plans condition and his to return to work. argues
The defendant that even if parties were
29 respect and extent mutually to the nature with mistаken injuries, plaintiff’s is immaterial be of the such mistake discharged all the release cause or he then had of action claims causes any might claim or thereafter have account unknown, injuries personal then or known and all arising unapparent, including complications apparent or very personal injuries, of the re and that basis from might wholly parties mistaken as to was that be lease by the the nature and of the suffered extent logical argument may plaintiff. However defendant’s contrary. seem, Because authorities аre to legal ingenuity is as can all-inclusive in its terms arising possible purports make it and to release all claims out of an accident and understood the re- is as such leasor, it it will nevertheless set when can be be aside parties time shown at the of its execution both were laboring extent under a mutual mistake as to the of the injuries suffered Pac. R. R. releasor. Union Co. v. Zimmer, 524, 363; App. 87 2d P. v. Cal. 197 2d Graham Ry. Atchison, Co., Cir., 819; T. F. 9 & S. 176 F. 2d Tulsa City Mains, 377, 381; Cir., Lines v. 107 F. Atlantic 2d Greyhound Virginia Cir., Metz, Lines West 2dF. Contracts, also 168. See Restatement of See. Illustration #4. any argument
Nor is there in the defendant’s merit plaintiff’s reply deficient does not allegation parties contain an were mis existing fact, past only taken as to an consequences were mistaken as to future injury plaintiff. allegation sustained plaintiff's reply in the that both believed personal injury “That had not suffered serious completely had recovered from the effects of his fall from the defendant’s train” allegation present Certainly is an of a mistake aof fact. *9 be he would
Dr. statement to the Fuller’s right” physi- “all statement was his cally reasonably can understood able to return to wоrk be plain- as declarations of then believed to be the what was physical Rockne condition. The court in Scheer v. tiff’s Cir., 945, (quoted Corp., from and 942, 68 F. 2d Motors Zimmer, upon supra) Union Railroad Co. relied in v. Pacific amply argument urged it answered the when said: now “There is no mistakes indeed absolute line to be drawn between future, present layman injured and as to facts. To a has been tell who again prophesy he will be about in a is to more than about short time do recovery. forecast, ordinarily a his No doubt is a but it is more than forecast; рresent condition, it is an as to so assurance understood.”
It is further defendant contended that a arising seeking to avoid of action cause under a federal statute must tender to the defendant back paid executing the consideration to him for the re lease. It is admitted that instant case the received not tendered back $135 defendant, to the instructed to substract any damages might amount from award plaintiff. However, object the defendant did not pleadings any the lack of tender in or time its at objection trial court but raises for first time upon appeal. necessary In view of is not this this fact it to determine whether should have made tender of The failure to raise the lack of tender in $135. the trial court constitutes a waiver of that defense. Co., 456, Robertson v. Fuller App. Const. 115 Mo. 92 S. W. 130, Jacobson, and Mandeville 122 Conn. A. In 598. the latter case court stated: unnecessary allegation “It to determine in the instant case whether an required allegation. of tender was and the effect of the absence of such an pointed out, pleadings As we have not did raise such appears point as far as no such at raised the trial and there were no requests charge reply made of the court. ‘If a of fraud is made to a plea release, objection any time, by pleading otherwise, and no is at sufficiency plaintiff’s made to case failure to tender or return
31 validity release, a as insists on its of the defendant the fruits such and especially thereby necessity defense, when the tender the for a waives judgment by is no and there the to him fruits of a release are restored prove allege prejudicial to return an offer to error in the omission necessary benefits, to avoid the offer were otherwise even if such those Co., 358, 415, 123 Mo. 27 Girard v. St. Louis Car Wheel release.’ 23 R.C.L. given Rep. charge 514, 517, 648, was 45 Am. St. 556. S.W. 25 L.R.A. guidance by pleadings adapted the sufficient raised the to the issues jury a jury, as to instruct the trial court was not bound to and the pleadings by possible claimed or otherwise which was defense not raised at the trial.” assignment the defendant of error made The next refusing instruct in court erred is that trial plaintiff must in avoid the order to release clear, unequivocal prove of fact mutual mistake requested convincing The defendant evidence. given, an that effect be but instruction to jury that court refused to do so and instead instructed mistake it it found a mutual could set aside the if preponderance are unable the evidence. of We assignment of error the defendant review this given exception to the did not take an to the instruction 508; jury. Bank, 35 P. Hadra v. Utah Nat. 9 Utah Morgan Co., Child, P. Be & Utah 177. Cole following leaving however, think, matter, fore this we regard proof in to the of a mutual observation nature and may prоve helpful involving of fact in mistake cases setting may aside of which releases hereafter arise. prongs (1)
There are two to a mistake of fact: supposed may purpose true fact —if we for the of con- indulge tautology, (2) trast in a true the actual or by comparing or real fact. The mistake is discovered parties mutually believed to be the fact with really what was the fact at the time the contract was short, by comparing In made. what believed to be was alongside fact of the discovered In actual fact. grеat majority of cases when the actual fact is discovered there can be no doubt about its truth such as the case where supposed respect an individual contract made contract parties at the time to be alive both dead. beyond doubt, then who, proved it later
made is question what of usually not the involves The issue other it be fact, believed whether both true short, on the In made. time the contract was at the wise mutuality mistake. by both a belief of fact consists mutual mistake Since reality does *11 whereas parties cеrtain fact exists that a parties in true, the belief both not' exist or is not the true of supposed and true fact existence degree proof. by of proved the same must fact be of its circumstance. One a unit The mistake is preponderance proved a mere prongs cannot be convincing by clear, unequivocal and other evidence and mis requiring mutual jurisdiction Hence in a evidence. unequivocal con by clear, and proved of fact to be take opinion thinks vincing evidence, (which the author of this jurisdiction) no dоubt that required if there is is this light a cer that parties in the of a belief contracted both claimed true and it is tain or condition was situation belief, party in fact a mistaken one their belief was convincing unequivocal prove by clear, and the latter must in reliance the situation or condition evidence making made, the contract was at the time was supposed parties from that thereof different which both jury And if a is to determine or believed. whether reality parties true fact is in different from what clear, mutually believed, fact such must find that unеquivocal convincing evidence, and and should be so instructed.
Applying case, to the instant there can above be no parties doubt that both believed at the the release time executed, only was had suffered tem- porary inconsequential and from which he had completely, nearly completely The evidence recovered. regard. uncontroverted and in that Both the Sayger testified that did not know that disabling Sayger injury. had suffered a back knew settling preparatory going back work. real issue is over the mutual this plaintiff, belief was in truth the fact or whether claims, executed, was at the time the release suffer- ing contemplated by parties, from condition not to- wit, spasm injury. a muscle as the Plaintiff effect of suffering; claims he was so defendant that he was denies asserts that his condition at the time of the trial was it same as was at the time of the execution of the con- parties thought tract and what both at that time it was. require Thus if were to mutual we mistake of fact to be proved by clear, unequivocal convincing evidence case, necessary prove it instant would be degree proof: (1) the mutual belief of the parties at the time of the execution of the that the plaintiff’s injuries and effects therefrom were inconse- quential, (2) that said belief of was a because, mistaken party, belief unknown to either actually injury. had suffered substantial *12 Turning assignment now to the next of error raised defendant, jury the the court instructed the in its instruc- tion number ten that: compensation damages proxi- “Plaintiff is entitled to recover full for all mately resulting grab-iron, any, though from the defective if even his may injuries aggravated pre-existing physical have been reason his condition, or rendered more difficult to cure reason of his state of health though by injuries or even reason of a latent disease the were rendered they
more serious to him than would have been had he been in the best of health. you you plaintiff “In this connection are if instructed that that the find damages, plaintiff is entitled these under instructions to recover then compensation damages proximately resulting to full entitled for all from grab-iron, any, though said defective if even his are more seriоus longer and of a duration than would have otherwise been because suffering.” may plaintiff have heen from which condition arthritic added.) (Italics no that evidence there was that defendant contends may was or sustained plaintiff have any injury which the aggravated, more difficult rendered been could have serious, an cure, prolonged more made may plaintiff the from arthritic condition contrary, the suffering on the have but that been expert alleged complaint produced in his injury he testimony sus the effect that medical may falling train hаve the defendant’s in from tained aggravated condition in his back. a latent osteoarthritic even who examined Dr. Leslie B. White ing before the trial testified injury” process
“may aggravated by had an arthritic have and that injured, probably person he would be little
“if a with arthritis was better; might thing getting aggravate the arthritic so it would slower in it develop degree greater than would otherwise.” to a it technically in that the instruction was erroneous While aggravated jury to find that the arthritis allowed aggravated injury injury instead of that ar- thritis, jury doubt that was misled. we instructing jury
There was nо error pain suffering for was entitled recover all probably that he endure” in the future. The “will de jury fendant’s contention should have instructed entitled recover damages suffering only pain such future certainty” as the evidence establishes with “reasonable rejected Mining this court in Picino Apex v. Utah al., et 52 Utah Co. 173 P. 902. There this court approved allowing an assessing instruction *13 damages physical pain consider and mental suffering probably hereafter “will endure.” assignments
The final of error made the defendant permitting are that the trial court errеd in testify prescribed as to the treatment for his back Hines, one Dr. A. E. testified was who Denver, Colorado, employed by a doctor in de fendant, and as to statement made to him Mr. Merrill, Salida, the trainmaster’s clerk in hearsay statements, allowing were and also in testify why employment toas he was released from in because it Salida was a conclusion him. Assum drawn ing deciding particulars without that the court erred charged, are unable see we how the defendant could prejudiced thereby. have judgment
The below is affirmed. Costs awarded to the plaintiff.
WADE, McDONOUGH, LATIMER JJ., concur. PRATT, (dissenting). Chief Justice I believe thаt we should not overlook the of this terms considering release in whether or not it was entered into under a mutual mistake of As fact. signing there is no claim this case of a of the release any advantage of fraud result unfair taken of plaintiff by agents, the defendant or of its arewe presented with a written instrument that has in it certain statements indicative physical of a realization that condition of the was not free from in- doubt —an containing strument these two statements: foregoing fully “I have read the release and understand the same.” * an(j “* * fully against understand I can no make further claim Company though said Railroad even said are more serious or I know different than now or understand them to he.” statement, course, important first only as ex- *14 doing. familiarity he was plaintiff’s what pressive with of important one. is The second statement though plaintiff waives that, even Let it be conceded injury, does may arising out of an he have all claims than claims believing other never have that he will so if it de- to his release settled, he not be held one will acting contracting party were velops other that he and the of his nature upon as to the serious the erroneous belief course, upon the idea that injury. This, founded of arriving met, their at parties not have minds upon they purpose, condition acted contractual of not true. fact that was understanding they recognize that their then
But what if may may be erroneous? Cer- be doubtful of the fact desire, tainly may, they cover such a they contract if they, say contingency. each other: If how- If in effect injury, ever are mistaken as the seriousness of this we settle this consideration will it is be understood that disрute anyway, minds have met. The their factual meeting of in the alternative— foundation for that minds serious, injury fact; or that if either that is not serious, anyway. it is the release Are these covered alternatives, then, quota- implication not the of the second proof tion circumstances of actual above? Under such injury proof is not of a serious character of mistake proof of an fact thus of erroneous con- foundation of merely relationship. support It tractual would shift contingency other, in the foundation from one to the both contemplation of were within the of at into the time entered From contract. the stand- fact, point of there of material mistake would be a failure proof. of realize, course, many layman signs
I times the watching closely papers too what without is included as terms; but, all, principle after of mutual mistake fact panacea improvident, is not intended as a care- may just less nor strongly indifferent action. One evi- accepts writings dence his intentions what he in the signs, may by fact, as he other acts. In intentions evi- writings subject denced “uncertainty are not to the slippery memory.”
KIRCHGESTNER v. DENVER & RIO GRANDE
WESTERN R. CO. granting rehearing No. (225 754). 7370. Decision P.2d, Dec. original opinion P.2d, For Utah see 118 685. judgment rehearing P.2d, 41; 699).
For final 118 Utah see