188 Iowa 1092 | Iowa | 1919
As we have already indicated, the first trial resulted in a judgment for the plaintiff, and it was from this adjudication that the first appeal was taken. After an opinion affirming the judgment had been filed, a rehearing was granted, and a' reversal was ordered because of errors in the charge of the trial court to the jury, and because of the view of a majority of the court that the evidence was insufficient to sustain the plaintiff’s plea of fraud, in avoidance of the release which he had executed. As that view
Following that decision, a procedendo issued from this court, and the plaintiff had the cause docketed for a new trial in the court below. The defendant objected to further trial, and moved the court for judgment in its favor on the record, on the ground that the issues had been determined and finally adjudicated by this court on the first appeal. The trial court adopted this view of the situation, refused to allow a new trial, and entered judgment against the plaintiff for costs. On appeal by the'plaintiff to this court, the ruling was reversed (see Owens v. Norwood-White Coal Co., 181 Iowa 948), and the cause was again remanded for trial.
On the second trial, the plaintiff having introduced his evidence and rested, the defendant, without offering or introducing any testimony in its behalf, moved for a directed verdict in its favor. The grounds of such motion, though stated in 22" different forms or paragraphs, may be abridged as follows;
1. That the binding and conclusive character of the
2. That, as a matter of law, there is no evidence to support a finding of negligence on the part of defendant.
3. That the negligence complained of was that of a fellow servant.
4. That the evidence shows conclusively that the plaintiff had assumed the risk.
The court sustained the motion, and directed a verdict for defendant, saying that, in its view, plaintiff had failed to show any actionable negligence; but that, in entering the ruling of record, it would be made to show the motion sustained on all its grounds, “so that all questions presented to the trial court may be raised and finally decided on all grounds.”
It will readily be seen that, notwithstanding the multiplicity of the fórmal points made by appellee in support of the ruling on the motion, the disposition of this appeal must depend, for the most part at least, upon our answer to the two questions: First, Was the evidence of defendant’s alleged negligence sufficient to take the case to the jury upon that issue? and, second, Was there evidence for consideration by the jury in support of plaintiff’s plea in avoidance of the release executed by him? To these issues we now turn our attention.
I. Could the jury, under the evidence, have found de - fendant negligent, as charged, with reference to its, maintenance and care of the entry where plaintiff was hurt? The accident occurred in an entry known in the record as “17 East.” Plaintiff’s regular employment was that of pump man in another part of the mine; but he had had considerable experience in other forms of mining work, and, on occasion, when his service at the pump would permit, he engaged in other labor, as he might be directed or requested. Entry 17 East had been driven to a point 60 feet be
Passing, for the present, the question.of contributory negligence by plaintiff, let us inquire what, if anything, is shown from which the jury could find want of proper care on- part of the company, with respect to the defect in the roof and the fall of the rock." As we have said, it is the conceded duty of the owner or operator of a mine to beep the entries in proper condition, and use reasonable care to see that the roof is protected, if protection is needed. The company was, of course, not an insurer, but it was bound to exercise reasonable care to maintain the entry as a reasonably safe way for those whose duties led them to use it. To
Grange admits that it was his duty to make these inspections every day, and says he did it. He further admits that his attention had been attracted to the. overhanging rock which fell upon plaintiff. He says:
“I had been watching that roof every morning, and sounding it. It was what might be called an ugly looking piece of roof. If it had not been for the danger of Jim Murray shooting the timbering out with his shot, I might have timbered that place; but I was busy, and could not get at it. A place is always considered safe when it is solid, and that place was solid that morning. * * * The only reason that piece was not taken down before August oth was that it remained solid. But even if it was solid that morning, sometime or other it was going to get loose. I looked for it to get loose, sooner or later. I looked for it to be loose every morning.”
If there be any doubt whether such evidence was sufficient to take to the jury the question of due care, it disappears when we look to the testimony of other witnesses. Murray, who worked in Boom 7, and passed under this piece of roof frequently every day, and who assisted in lifting the plaintiff from the place where the rock struck him down, testifies that he had noticed the threatening appearance of this mass of slate many times, and had reported it to the mine foreman and to the superintendent. He says:
“I told them where the place was, and that was the
Another miner says the roof had been in that condition for a month, and he had called Grange’s attention to it. Still another witness, who, until about 5 days before the accident, had been the mine foreman, whose duties called him into and through Entry 17 East every day, speaking of the same place, says:
“I had noticed the condition of the entry in front of Murray’s room, and it was not timbered. * * * We had slate down there in front of Murray’s room several times. By that, I mean there had been falls, — that is, slips,— pieces fell out. * * * Before I left there, the roof was slippy and roily, but, as far as being loose, 1 could not say; but it did not look very good. It should have been timbered. * * * u I saw the piece of roof up over the switch points which went into Murray’s room. It was a piece of slate that hung down alongside the road, and hung over the roadway; and if that was loose, it was liable to get loose any time; but, of course, if it was solid, it was all right. If it got loose, it was apt to catch somebody. * * * That entry should have been timbered. * * * It could have been timbered before I left, and it should have been timbered a week or two before I left, I suppose.”
That this showing by the plaintiff was sufficient to take to the jury the question of defendant’s negligence with respect to this roof, is so clear as to render argument on that -point superfluous. Defendant’s suggestion that the negligence, if any, was that of a fellow servant, is without merit, for the obvious reason that the keeping of the roof in reasonably safe condition was a magisterial duty, and Grange, according to his own showing, was, in this respect, a vice principal. It is further argued that, even if this be true, it appears that Grange had inspected the roof that morn
The defendant contends, however, — and there is evidence tending to show, — that, a short time before this accident,, a quantity of slate had fallen or had been taken down at this same point; and it is argued that the witnesses above quoted are speaking of the condition of the roof before that change or repair was made. But no such interpretation can be placed upon the testimony of several of the witnesses, and especially that of Murray, who was present and helped lift the rock from plaintiff’s body, and who says, in so many words, that the overhanging mass whose threatening appearance and looseness he had noticed, and of which he had complained to the timberman and company officers, “was the same piece which fell on Owens.” If there be any room for question or doubt at this point, its answer depends upon the veracity of the witnesses and the weight and value of their testimony; and this is the function of the jury, and not of the court.
The witness Grange, who is by no means hostile toward the defendant, says the custom was for the company to take care of the entry to a point about 15 feet from the "face — a point which, in this instance, would be considerably to the east of the rock fall in front of Room 7; and that' miners, daymen, and drivers, in using the entry, “would rely upon the company’s having taken care of the roof of the entry. It was not customary for miners or teamsters or the like to sound the roof in the entry, or to inspect the roof. It was the custom for all of them to depend upon the company keeping the entries safe.” Speaking of the time and place of the accident, Grange says:
“Owens had no pick, that I saw, and he did not stop and sound the roof. It was not his duty, nor was it necessary for him to do that.”
“No employee about the mine, other than the timber-man, had anything to do with the roofs of the entries, and the timberman would go through the entries in the morning and inspect the roof; later on, the miners would go through to their various places of work. And they have nothing to do with inspecting or looking after the roof, as they pass through the entries. * * * The duties of detecting faults, slips, flaws, and dangerous places in the roofs of entries is not the same with timbermen and their help. It was Grange’s duty to look after that, and it would not be any of the business or duty of the helper.”
II. The other inquiry, whether plaintiff made a case for the jury upon his plea in avoidance of the release, is perhaps more debatable, though the proper answer is hardly less certain.
The physician does not seem to have discovered the most serious injury, the breaking of the thigh at or near the hip socket, or, if he did discover it, he did not so inform the plaintiff, nor did plaintiff know of this condition until after he had executed the release. His injury had rendered him physically helpless, and he was still in bed, suffering much pain, when the settlement was made.
There is much of doubt, if not something of mystery, as to the exact relation of the physician to the parties. It is undisputed that Dr. Cokenower treated the plaintiff until a short time after the release was executed. He says he was called into the case by telephone, but is unable to say from whom the call came. The plaintiff and his wife say he was called by neither of them, nor at their request or direction; that he was not, at that time, their family physician, a sick member of their family being at that time under the care of another physician. Plaintiff further says that, in one of his interviews with the defendant’s claim agent, the latter, speaking of the physician, said, “Dr. Cokenower does our doctoring.” The claim agent and the physician were together at the hospital where plaintiff was first taken for treatment. Whether they went there together is not stated, but it does appear that they there discussed plain
Concerning the latter fees, the agent told' plaintiff that the doctor was charging $5.00 per visit, and that, for the treatment already had, and the few visits which might still be necessary, his bill would be nearly $100. He further stated, according to plaintiff, that he, Woodbridge, was himself a lawyer, having considerable experience in that line; that he had looked into the facts in this case; and that plaintiff had no cause of action; and that, if plaintiff brought suit, the company would refuse to treat with him at all, and would defeat him in the end.
Plaintiff further says that he was impressed with the
It further appears that plaintiff has been a miner from boyhood, having very little education and little business experience, supporting himself and family on his daily earnings ; that, at the time he executed the release, he was still suffering much pain, and, because of his pain and weak and nervous condition, he was unable to obtain normal sleep or rest.
Dr. Cokenower, as a witness on the trial, denies that he told Woodbridge plaintiff had no broken bones and no serious injuries, or that he would be able to return to work in six weeks, or that he was charging plaintiff $5.00 a trip for his services. He admits that he said to Woodbridge, at the hospital, that, so far “as the blood tumor was concerned, it would heal in about six weeks, but as far as the hip was concerned, I did not know. * * * I never at any time told Woodbridge I was charging Owens $5.00 a trip from my office to his house. I charged $2.00 per trip. During the conversation at Owens’ house, nothing was said by me about Owens’ getting back and at his work in six weeks. I did not, in any conversation with Woodbridge, tell him that, in substance.”
It is also to be said that the doctor admits that defendant paid for his services; and, on the other hand, it is to be conceded that this fact, while consistent with plaintiff’s
As we have before said, the evidence as to the real relation of the physician to these parties is by no means satisfactory ; but we think a jury could properly infer from tho testimony that, even if Dr. Cokenower was not in any way representing the defendant’s interests, he was at least exercising care to avoid placing any obstacle in the way of Woodbridge’s securing a settlement with plaintiff on the most favorable terms possible. The most which need here be said is that, upon the record as made, it cannot be said, as a matter of law, that Dr. Cokenower was the representative or agent of the plaintiff in whatever statements he, in fact, made to Woodbridge.
The foregoing, while not including all the evidence, is sufficient to indicate the substance and general nature of plaintiff’s showing in support of his claims that, in the transaction which resulted in the execution of the release, he was not dealing on equal footing with the defendant, and that undue advantage was taken of his weak and enfeebled condition and of his ignorance and lack of experience, to secure his signature to the instrument for a grossly inadequate consideration.
Oases of this class are frequently before the courts, and the general rule is well settled that such a release by an injured servant in favor of his employer will be set aside as void, when shown to have been obtained by fraud.
In this connection, it is quite important to note that the inquiry and the issue of fraud upon the former trial were restricted within a very narrow compass. In the first place, the plaintiff’s claim and evidence to the effect that Woodbridge told him he was a lawyer, and experienced in such cases, and had examined into the circumstances of. plaintiff’s injury, and that plaintiff had no cause of action against the company, and, if he brought suit, the company would surely defeat him, were all taken out of the case by the charge of the trial court to the jury (see 157 Iowa 408,
The reversal upon that appeal and the order for new trial leave all these questions of fact an open field for investigation; and, as we have already said, it was the duty of the trial court, and, upon appeal, becomes the duty of this court, to say whether, in its judgment, the evidence now presented should have been submitted to the jury.
It is an elementary proposition that the law favors settlements, fairly obtained, of disputed claims. It is no less true that contracts of settlement may be vitiated by fraud or inequitable advantage by either party thereto. To hold otherwise is to offer a premium for the encouragement of fraud and inequitable advantage, which it is the time mission of the courts to prevent. In considering a claim or allegation of fraud in such cases, the court will inquire, not alone into alleged false or deceitful or misleading representations, but into the circumstances attending the transaction, tending to show whether the parties were dealing at arm’s length, and upon equal footing. This is especially
Without deciding, by any means, that expressions of opinion by the employer or its agent may not, in some cases, and under some circumstances, be evidence of fraud or. fraudulent purpose, we will pass without further consideration all those alleged statements by Woodbridge which may fairly be said to be a mere statement of his private opinion as to the plaintiff’s injuries, and confine our attention to those which may not be thus classified. Among the things shown in the plaintiff’s evidence in this respect is to be found the following: that, as we have already said, when
“Woodbridge was not a doctor, and was not undertaking to give his own opinion, but was attempting to repeat a statement said to have been made to him by plaintiff’s own physician; and, if he falsely and fraudulently misrepresented what the doctor said to him, and plaintiff believed his statements to be true, and acted thereon, this would amount to such a fraud as would- nullify the receipt and settlement.”
Now, the doctor, as a witness, distinctly denies having made either of the statements so attributed to him, and testifies that his mention of a period of six weeks was expressly limited to the period required for the healing of the blood tumor. He says:
■“I told him the tissues of the back, the haematoma (blood tumor), ought to heal up in about six weeks, without any after effects; but, so far as the hip joint was concerned, I did not know.”
This, by no liberality of construction can be made the equivalent of a statement that there are “no broken bones,
Quite in point is Haigh v. White Way Laundry Co., 164 Iowa 143, a recent case decided by this court. There, the plaintiff, while in defendant’s service, sustained a severe injury to her hand, and thereafter defendant obtained from her a Written release of her claim for damages, at a small consideration. Later, she brought suit, and was permitted to avoid the settlement, upon a showing that she was misled by the representations of the employer and its agents. These representations were to the effect that her hurt was trifling; that the tendons of her hand were not injured; and that she would soon recover therefrom, and be as well as ever. The court, stating that an expression of an honest opinion could not constitute a fraud, proceeds to say that, while the expression of an opinion as to the length of time required for plaintiff to recover from her injuries necessarily partakes of speculation, and an “honest opinion upon that subject given upon that matter , would not constitute fraud,” yet the representation that the injury was trifling, and the tendons of the hand were not injured, were “substantive facts,” and their assertion, as an inducement to obtain a settlement, had direct bearing upon and relation to the extent of the defendant’s liability to the plaintiff. If this be a correct proposition, as we think it is, it must be true in this case that a statement to the plaintiff that his injury had resulted in no broken bones, and was not of a permanent character, when, in truth, he had sustained a broken thigh or hip, one of the most serious fractures which the human frame can suffer, were representa-
“The fact that the statement made by Stewart was not intentionally false does not affect the right of the appellee to have the release set aside, if he was misled by the statement, and executed the release believing the statement was true. In such a case, innocent misrepresentation may as well be the basis of relief as' where such statements are intentionally false.”
We also said that:
“Though the release is general, covering injuries of ev-ei*y kind and nature, and extending until doomsday, inquiry concerning the nature of the consideration and for what computed was permissible, and, as we think, was not prechided by the terms of the release.” Malloy v. Chicago G. W. R. Co., 185 Iowa 354.
The Haigh case, supra, is also in line with this principle. To the same effect is McCarty v. Houston & T. C. R. Co., 21 Tex. Civ. App. 568 (54 S. W. 421).
The case of Jacobson v. Chicago, M. & St. P. R. Co., 132 Minn. 181 (156 N. W. 251), affords another pertinent illustration of the principle. Plaintiff, a passenger on defendant’s railway, was injured in a wreck, and, as in the present case, the injuries so sustained included an impacted fracture of the thigh and dislocation of the sacroiliac joint, and, as in this case, also, this feature of the injury was not discovered until after plaintiff had released the company on payment of $150. In securing this release, both the physician and the claim agent told plaintiff that he had no broken bones, and that he was suffering only from bruises of. a temporary character. In ruling that a release so procured may be set 'aside, whether the representations to the plaintiff were made with or without fraudulent intent, the court says:
“In such cases, the courts grant relief either upon the
In support of its conclusion it cites our own case of Haigh v. White Way Laundry Co., supra.
In Marple v. Minneapolis & St. L. R. Co., 115 Minn. 262 (132 N. W. 333), the same court had to deal with another case, quite analogous to the one at bar, in that the' fraud and misrepresentation charged were in reporting to plaintiff that his physician said he would be well, and able to go to work in three weeks, and there was testimony tending to show that such representation was untrue, and that plaintiff, relying thereon, was misled. This was held to be sufficient ground for impeaching the settlement. The same ruling was had in the similar case of Peterson v. Chicago, M. & St. P. R. Co., 38 Minn. 511; also in Fleming v. Brooklyn Heights R. Co., 95 App. Div. 110 (88 N. Y. Supp. 732).
Referring to this subject on the former appeal, we said that, where such settlements are made with injured and necessitous persons who have not had the aid of coun-' sel, they should be closely scrutinized.
In Mensforth v. Chicago Brass Co., 142 Wis. 546, the plaintiff had been in the hospital 10 days or more when a release was obtained from him upon payment of $100. In reversing the ruling of the trial court directing a verdict for defendant, it is mentioned as an important circum
“Where such unseemly haste is made in obtaining settlements with parties who have sustained such serious injuries, and where the amount paid is so trifling and utterly disproportionate to. any just compensation, it seems like wasting time to nicely discuss questions of evidence bearing on plaintiff’s capacity to transact business.”
See, also, McLean v. Equitable Life Assur. Soc., 100 Ind. 127, and Stone v. Chicago & W. M. R. Co., 66 Mich. 76 (33 N. W. 24).
So, too, in Platt v. American Cement Plaster Co., 169 Iowa 330, where a release by an injured employee was set aside, this court held it not error for the court to expressly instruct the jurors that, in determining whether plaintiff fully comprehended the nature and effect of the instrument, they could consider the evidence tending to show that he was lying in bed, prostrated, and distracted by the pain which came to him from the injury he had received.
The rule to be deduced from the precedents is not that, in order to justify an avoidance of a release, it must be established that he was, at the time, a mental incompetent. It is sufficient if it appears that, by reason of bodily injury or infirmity, or mental distraction occasioned thereby, he is, to use the language of the Wisconsin court, supra, unable to “carefully consider his rights in the matter,” and if it further appears that advantage was taken of that condition by the other party, to obtain a settlement for a very inadequate consideration. Inadequacy alone, if so great as to shock the conscience, has been held enough to require
We have already said that mere expressions of opinion, honestly entertained, do not amount to fraud; but the statement of a fact must be construed as such, even though it partakes in some degree of the nature of an opinion. The physician who says that his patient is or is not afflicted with tuberculosis or with typhoid fever asserts a fact, and not a mere speculative opinion, and the lawyer who informs his client that a given act constitutes a public offense states an alleged fact, even though his statement is based upon his opinion, as to the effect of a statute. Even the same language which, under some circumstances, would clearly be classed as an opinion merely, may, under other conditions, be substantive statements, on which, if the hearer rely to his injury, a right of action may be based.
We have held, as is illustrated in the cases cited, supra, that the assurance by the employer and by the surgeon that the injured person has recovered from his hurt, and is in physical condition to resume work, is a representation of fact, though having its foundation in opinion, and that a settlement obtained upon such representation will be invalidated, if it later appear that such assurance was false or mistaken. The justice and propriety of this rule is too apparent to require argument.
The principle was applied by us in Rauen v. Prudential Ins. Co., 129 Iowa 725, where the defendant, by its agent, denied liability on an insurance policy, because of an alleged forfeiture, and obtained a release upon payment of a mere fraction of the insurance. The agent’s statement to Mrs. Rauen that she had no cause of action, and that the company had a perfect defense, though, on the theory of appellant in this case, a statement of his legal opinion, was, nevertheless, a representation of an alleged existing fact, sufficient to avoid a release so procured. The same rule was applied by the New York Court in a similar case. Berry v. American Cent. Ins. Co., 132 N. Y. 49. In the latter case, the court says:
“The defendant .must be presumed to have known that it was liable for the whole loss, and, by falsely representing that, under the law applicable to the case, the policy was
See, also, Nelson v. Chicago & N. W. R. Co., 111 Minn. 193 (126 N. W. 902) ; Kelly v. Chicago, R. I. & P. R. Co., 138 Iowa 273.
It is true, of course, that, if an injured person, asserting a right to damages, acting freely, and without being in any manner deceived or misled by the other party, sees fit to compromise or surrender his claim for a small consideration, he will not, after executing a release, be permitted to avoid its effect, simply because, on later reflection, he repents his action. . It is only where such release has been procured by1 fraud or by mistake, or under circumstances showing such superior advantage on the part of the releasee as taints the transaction with constructive fraud, that the settlement will be treated as void. When, however, there is any evidence fairly tending to show that it ought to’ be avoided on any of these grounds, or to justify such finding by a jury, the question so presented is for the jury; and this, we are convinced, is the nature of the case presented by the record. Such being our conclusion, it follows that the judgment of the trial court must be reversed, and eausd remanded for a new trial. — Reversed.