108 Kan. 124 | Kan. | 1920
The opinion of the court was delivered by
The plaintiff recovered compensation for a personal injury, and the defendant appeals.
“Under the evidence introduced on the part of the plaintiff, including an exhibition by plaintiff of his injured arm and shoulder, upon the trial of the cause, it is clear the plaintiff, at the time he executed the alleged release, was mistaken in the belief .that his injured arm and shoulder were cured, and that in a short time he would have normal use of same as before his alleged injury; and it is likewise clear the plaintiff was induced and led into this mistaken belief by the statements of the defendant’s physician and surgeon made to him. The present condition of plaintiff’s arm and shoulder shows clearly that plaintiff was mistaken; and it follows that the physicians and surgeons of the defendant who treated plaintiff for such injury, with the superior knowledge possessed by them, and with full knowledge of the nature and character of the injury sustained by plaintiff, were equally if not better prepared to say whether the injury was cured, and that the plaintiff would soon have normal use of his arm; and the making of such statements to plaintiff by defendant’s physicians and surgeons must be attributed to one of two causes: first, that they were honestly mistaken in their statements to plaintiff that the arm was cured of the injury and that the plaintiff would soon have normal use of same; or second, that said physicians and surgeons, knowing the true condition of plaintiff’s arm, falsely and fraudulently made such representations and statements to plaintiff.”-
According to the memorandum, the district court’s judgment is rested on statements of the defendant’s surgeon that the plaintiff was cured, and would soon have normal use of his arm. The plaintiff testified, in response to leading questions, that the doctor told him he would be all right, he was all right, he would get all right, and would have full use of his arm. The plaintiff also testified as follows:
“The doctor said I would be all right now, says ‘you are as much as you possibly can’ . . .
“He said it would be all the way from four to five and six months; said it varied, what he had done to me; and then said, ‘sometimes,’ he says, ‘you might not be entirely normal, of course, for a year.’ ”
The testimony may be accepted as the plaintiff’s way of telling, truthfully enough, part of what the doctor said; but it does not represent in any fair sense what the doctor did say, or the state of his mind.
In October, 1918, the plaintiff was referred by the defendant’s claim adjuster to Dr. F. L. Preston, a physician of El-Dorado. The doctor examined the plaintiff and took X-ray pictures of his shoulder, and found nothing wrong with it. There was no evidence of adhesions. The doctor believed the plaintiff’s arm was weak from lack of use, and advised the plaintiff to use his arm. The plaintiff corroborated this testimony. He said the doctor told him he had sore muscles, which would be cured by “going to work on the arm,” but the plaintiff said it was painful to move his arm. In February, 1919, Doctor Preston again examined the plaintiff, and found him in the same condition as before. The doctor said the plaintiff would now be able to perform manual labor, as he did before the last dislocation, if he had followed instructions.
When the plaintiff was sent to Doctor Callahan, there was no special atrophy of the muscles. X-ray pictures disclosed a •clear bone outline, without elision or roughness or thickness or
“When they released me from the hospital they told me I would be all right, and to use my arm as much as I possibly could, and I told them I would. . . . Doctor Callahan, told me as soon as my arm commenced getting better to keep moving it.”
Doctor Callahan testified as follows:
“At that time I advised him to use his arm. The reason for doing that is so the arm will not become stiff. I'had.á great deal of trouble getting him to do that; always became afraid; if I went to take hold of it myself, he would absolutely clinch and hold it, and keep insisting I would throw his arm out of place, because he found out if he moved his arm at a particular time, his arm would come out of place. ■ I had trouble to get him to move his arm; told him and told Mr. Fields to put the boy back, to give him light work to do; if he kept on doing like he had, he would have a stiff arm, because he would not follow instructions. I examined him some time later, after he had.gone home, and gave him the same advice again, to use his arm; and that’s the last I saw of him.” .
Doctor Callahan further testified that while the plaintiff was in the hospital he would refuse to follow directions, and that if instructions had been followed, the plaintiff would now have a normal arm. The plaintiff admitted he was told to exercise his arm, before Doctor Callahan gave his testimony. In the same connection the plaintiff said he followed instructions “as best he could until his arm hurt.” ■ After Doctor Callahan testified, the plaintiff was recalled to testify in chief, and was' called in rebuttal; but he had nothing further to say on the subject, and his counsel in open court disclaimed any purpose to discredit Doctor Callahan.
In June, 1919, the plaintiff made application to the welfare association of the city of El Dorado to be sent to the Rosedale
It was within the province of the district court, if duly convinced, to discount all the rest of the evidence on the subject, and conclude from Doctor Leavell’s testimony that the adhesions resulted in part from the injury. If that were the fact, the evidence is conclusive the adhesions were inconsequential. Doctor Leavell said that any adhesions which resulted from the injury would appear immediately, and could be detected by moving the arm. No adhesions were detected by the doctors who examined the plaintiff before the operation, the plaintiff made no suggestion to anybody that inhibition of movement existed before the operation, he did not testify that such was the fact, and he made no complaint of anything except pain in his arm. - It was within the province of the district court, if duly convinced, to discount undisputed evidence relating to the
The district court did not abuse its discretion in allowing the reply to be amended. While the release purported to be given, by way of compromise, payment of compensation was included in the compromise, the release was considered by the parties, as given under the workmen’s compensation act, and the court, was authorized to regard it as so given. If the plaintiff had been discharged from the hospital with the assurance that he was cured and would soon have normal use of his arm, this court would regard the doctor’s statement to that effect as one of fact. (Weathers v. Bridge Co., 99 Kan. 632, 162 Pac. 957; Smith v. Kansas City, 102 Kan. 518, 171 Pac. 9; Wolf v. Packing Co., 105 Kan. 317, 182 Pac. 395.) The differences between, mistake of fact and fraud are such that, in justice to litigants,, a trial court should distinguish between them in returning-findings of fact.
The judgment of the district court is reversed, and the cause is remanded for a new trial. . •