120 Ky. 351 | Ky. Ct. App. | 1905
Opinion by
Affirming.
Appellant sued appellee in the Marion Circuit Court to recover damages for the alleged breach of a contract claimed to have been made between them, whereby appellee agreed to furnish him medical or surgical treatment and attention until he recovered from certain injuries received in its service and upon its railroad. It was, in substance, alleged in the petition that appellant’s leg was broken and his person otherwise injured by the negligence of appellee, for which he had and held a claim for damages against it, in compromise and settlement of which appellee agreed to pay him $100, to furnish him medical attention and treatment for his injuries “until the same should be and become well, and to repair said injuries;” that appellee did pay him the $100, and began and furnished him medical attention for several months, but before his injuries were well, and while they still needed attention, appellee’s physician ceased,to treat him, and refused to further do so, which was a violation of the contract, prevented his cure, and caused him physical pain and damage in the sum of $2,000, for which amount judgment was prayed. The answer of appellee denied that appellant’s injuries were caused by its negligence, but admitted the compromise of his claim for damages, and the payment of $100 in settlement thereof. The answer denied, however, that appellee, in or by the compromise and
It was insisted for appellant on his motion for a new trial in the lower court, and is now contended! by his counsel, that the court erred in giving the peremptory instruction, and that for this alleged error the judgment appealed from should be reversed.
The writing relied on by appellee as showing the contract made with the appellant is as follows :
“Louisville and Nashville Railroad Company. To Dee Lanham, Dr. Alicetown, Ky. Aug. 17. Received of the Louisville and Nashville Railroad Company, One Hundred ($100.00) Dollars, in full compromise, settlement and adjustment of all claims and demands of every character whatever, which I have against the said company, its officers, agents, and employes, on account of injuries to my person and damage to and loss of property sustained by me at or-near Woodbine, Ky., on or about the 2nd day of May, 1901, by falling off a hand car while employed as a laborer in extra gang No. 2, and on every other account whatever.
“Witness my hand at Lebanon, Ky., this August 17th, 1901.
Ms
“DEE x LANHAM.
mark.
“Witness: John McChord, R. E. Fleming.”
The failure of appellant to deny the giving of the
It is, however, contended by counsel for appellant that the writing in question is a mere receipt for the $100 paid appellant by appellee upon his claim for damages, and was not intended to evidence the terms of the settlement, and consequently the presumption that it contains the entire agreement of the parties can not prevail, for which reason appellant was entitled to set up and prove the contract as claimed by him, without regard to the writing.
In2 Parsons on Contracts (9th Ed.) p. 715,it is said: “But if a plaintiff is met by a general release under' ' his seal to the defendant, he can- not set up an exception by parol. And where the release Is general, it can not be limited or qualified by extrinsic evidence, though a receipt may be. And a release or receipt in full throws the whole burden of proof on him who signed it, if he alleges that he signed it through mistake or fraud. ’ ’ (Kirchner v. New Home Sewing Machine Company (N. Y.), 31 N. E., 1104; Pierson v. Hooker, 3 Johns., 68, 3 Am. Dec., 467; Crane v. Williamson, 111 Ky., 276, 23 Ky. Law Rep., 689, 63 S. W., 610, 975; Harmon v. Thompson (Ky.), 84 S. W., 569, 27 Ky. Law Rep., 181.)
It is claimed for appellant that the fact that appellee paid $400 to the physician for medical attention given him sustains his contention that he was to be treated at appellee’s expense until cured. If this were
As bearing on the question of whether appellant was discharged from the hospital before he was healed of his wounds, it is contended by appellee and admitted by appellant that he received treatment from the hospital physician after leaving the hospital, and this fact is argued as proving that he left the hospital voluntarily; and the further fact that he did not apply to another physician (Dr. Evans) for treatment until three weeks after the hospital physician ceased to treat him is also argued as showing that .he was well When the latter quit attending him. The cure of appellant at the hands of the appellee’s physician is also argued from the fact that when treated by the second physician it was for erysipelas in the wounded leg, which disease he did not® have until appellee’s physician quit treating him. This disease, Dr. Evans said, Was caused by filth. We deem it unnecessary to discuss these matters of evidence, as they were all incompetent, because of the absence from appellant’s pleading of any allegation,of fraud or mistake in the writing he executed to appellee. The only contract between the parties was contained in the writing. That instrument does not manifest the alleged understanding upon the part of appellee to furnish appellant medical treatment until well of his injuries or at all, and that undertaking was not alleged to have been omitted from the writing by fraud or mistake. The only agreement between the parties expressed- therein being that appellant had
Wherefore the judgment is affirmed.