(after stating the facts). The main reliance of counsel for the defendant for a reversal of the judgment is that the plaintiff is bound by the release which he executed in favor of the railroad company. The release recites that, for the sum of $3,500, the plaintiff releases, discharges'"''find receives full satisfaction of all damages for personal injuries growing out of the accident in question.
In 48 A. L. R. 1464, it is said that the general rule is that a release of damages for personal injuries "cannot be avoided on the ground of mistake merely because the injuries prove more serious than" the releasor, at the time of executing the release, believes them to be, and several Arkansas cases are cited. On page 1467 of the same case-note it is said that the rule is well settled, according to the great weight of authority, that a general release of a claim for personal injuries may, under proper circumstances, be avoided on the ground of mutual mistake as to the nature or circumstances of the -injuries, and several Arkansas decisions are cited on page 1471 in favor of the rule. It is true that, where there is no misrepresentation or fraud" on the part of the releasee, a releasor cannot subsequently avoid his release on the ground that his injuries were more serious than he had thought them to be, even though his opinion at the time of making the settlement may have been based upon that of a physician employed by the releasee to examine and report on the extent of his injuries. It is equally true, however, that an innocent misrepresentation of the releasor’s injury, made by the releasee’s physician, may be effective to avoid a release induced thereby. In the first type of cases the parties rely upon opinions and in the latter cases upon statements of existing facts.
In St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright,
Again, in St. Louis, Iron Mountain Southern Ry. Co. v. Morgan,
In a later case, F. Kiech Manufacturing Co. v. James,
In St. Louis-San Francisco Ry. Co. v. Cox,
In Sun Oil Co. v. Hedge,
Under the evidence in the ease before us the jury was fully warranted in finding that the settlement was made under a mutual' mistake of .fact as to the nature and extent- of the plaintiff’s injuries. In fact, the undisputed evidence shows that the injuries to the plaintiff turned out to be permanent, when, at the time of the settlement, both parties thought they were only temporary. . The physician uf the' defendant, who set the leg of the plaintiff and had him under his charge for about thirty days after the accident, told the plaintiff that the bones had been placed in good alignment and that they were united. It turned out that there had been no union of the bones, and that, as soon as the splint was removed, which was done on the next day aftér the settlement was made, the bones overlapped, and that, after successive operations by eminent surgeons, no union .of the bones could be had. In the opinion of the physician, non-union was caused because of the bad condition of the blood of the patient resulting from syphilis, which he had contracted during the World War. According to the evidence for the defendant, its physician expressly asked the plaintiff, after the accident, if he had ever had syphilis, and the plaintiff replied that he had not. The plaintiff denied that the physician 'asked him this question, and said that he would have told him the facts if such question had been asked him. The jury found this issue in favor of the plaintiff, and the case stands as if no such question had been asked. It follows then that the undisputed proof shows that the settlement was made under a mutual mistake of the parties as to whether - the injuries were temporary or permanent.
It is earnestly insisted, however, by counsel for the defendant that the release must stand because the plaintiff did not tender the consideration received by him before he instituted the present action. It may be conceded that this is the general rule laid down by the text-writers, but we are of the opinion that this court has adopted the contrary rule. The text-writers recognize that there is much confusion and doubt in the adjudicated cases bearing on the question. It is conceded that there need not be a return of the consideration where the settlement was induced by fraud, or when it was made at a time when the releasor was suffering great pain, or when he was under the influence of opiates; but it is contended that, where it was made and intended to be made by the parties, a return of the consideration should be made before bringing suit, even though the settlement was the result of á mutual mistake of the parties or of a mistake on the part of the releasor coupled with, fraud on the part of the releasee.
In the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright,
This will be seen to be tbe reasoning of the court in St. Louis, Iron Mountain & Southern Ry. Co. v. Morgan,
In the case of St. Louis-San Francisco Ry. Co. v. Cox,
There can be no difference in principle whether the release was the result of a mutual mistake of the parties or whether it was the result of a mistake on the part of the releasor coupled with fraudulent representations on the part of the releasee that the injuries were temporary, when in fact they were permanent. In each case the releasor signed the release because he relied upon the representations of the physician of the releasee, who told him that his injuries were temporary, when in fact they were permanent. The gist of the matter is that he signed the release believing that his injuries were temporary, when in fact they were permanent, land that he was' induced to do this by the representations of the physician of the releasee stating matters as an existing fact, and not merely as his opinion. No good reason appears to us why there should be any distinction as to the restoration of the consideration in the two classes of eases. The decision in the Cox case is our latest enunciation on the subject, and, from the opinion, appears to have been made after a deliberate review of our former decisions by a judge who has been on the bench during the whole period of time when the subject has come up for consideration, and there does not appear to have been any dissenting voice from the decision. Therefore the decision' in the Cox case will be taken as the rule governing cases of this sort in this State.
Again, it is insisted that there was a ratification of the settlement by the plaintiff because he collected the draft given him by the railroad company in settlement after an X-ray picture had been made and he had ascertained that there had been no union of the bones, and that his injuries were probably permanent. If we are correct in holding that the plaintiff was not required to return the consideration, there would seem to be no useful purpose to be served by him in refraining from collecting the draft. If he was entitled to receive the consideration, he might expend it for any necessary purpose and use it as a credit on his ultimate settlement with the railroad company. This was what the plaintiff said that he did in the present case. According to his testimony, which is not disputed, he expended the full amount of the release and in addition $800 in a vain attempt to secure a union of the bones in his injured leg by operations performed by eminent specialists. Hence we hold this assignment of error was not well taken.
On the subject of the negligence of the defendant but little need be said. In addition to the statutory presumption of negligence arising from the injury having been caused by the operation of one of the defendant’s trains, it may be said that the great weight of the affirmative evidence shows that the injuries were caused by the negligence of the defendant. There was an implied invitation to cross the track resulting from the action of the flagman in failing to raise his stop signal. Chicago, Rock Island & Pacific Ry. Co. v. Hamilton,
It is next insisted that the court erred in failing to give an instruction requested by the defendant on contributory negligence. We do not think the court erred in refusing to give the instruction. The Legislature of. 1919 passed an act providing, in substance, that in all suits against railroads for personal injury or death caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of a less degree than the negligence of the employees of the railroad causing the damage complained of; provided, when such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence. Crawford & Moses’ Digest, § 8575. The instructions given by the court on the question of contributory negligence or comparative negligence were in accord with the construction of the statute by this court in Missouri Pacific Rd. Co. v. Robertson,
Finally, it is insisted that the judgment should be reversed because the verdict is excessive. We do not agree with counsel in this contention. There was a verdict of $18,500. The plaintiff was forty-four years of age at the time of the accident which caused him to have a fractured thigh bone. He was first carried to' a hospital for about thirty days, and during this time suffered great pain. When the splint was removed from his leg it was found that the bones had not united, and he was compelled to undergo several operations in a vain endeavor to secure a union of the bones of his leg.. This he was unable to do, and his injury appears to be permanent. He lay in a hospital for many months while undergoing these operations, and suffered intense pain. He was a fruit and melon packer, and in that capacity earned $50 a week. He is not able to do that work any more, because it necessitates his standing on his feet. He has expended more than $4,300 in hospital bills and expenses. The great weight of the evidence tends to establish that the defendant was negligent and that the plaintiff was not guilty of contributory negligence.
Under these circumstances we do not think that it can be said that the verdict of the jury was the result of passion or prejudice, and so excessive. We are asked to make a comparison with other cases, and have examined many cases with a view of determining whether or not it is excessive, but no useful purpose could be served by reviewing the cases in this opinion.
Especial reliance is placed on the case of Aluminum Company of North America v. Ramsey,
In Boyle-Farrell Land Co. v. Haynes,
In Zumwalt v. Chicago & A. R. Rd. Co. (Mo.),
In Gulf, C. & S. F. Ry. Co. v. Crow (Tex. Civ. App.),
In Hurst v. Chicago, B. & Q. R. Co.,
In this connection it may be also stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice. On this point see notes to 18 A. L. R. 564, 10 A. L. R. 179, and 3 A. L. R. 610.
We find no prejudicial error in the récord, and the judgment will therefore be affirmed