64 Wash. 370 | Wash. | 1911
On the 5th day of August, 1906, while plaintiff was upon one of defendant’s cars proceeding from Columbia station southerly to Rainier Beach, at or near Dunlap station, the car upon which plaintiff was, collided with another car upon defendant’s railway line, and plaintiff was injured. This action was brought by plaintiff to recover damages alleged to have been sustained by him, in the sum of $5,000, less the sum of $600 acknowledged to have been paid to plaintiff by the defendant. Defendant by answer alleged affirmatively, that on the 3d day of October, 1906, and prior to the commencement of this action, plaintiff
“Know all men by these presents: That O. A. Pattison, of Columbia, in the county of King, and state of Washington, in consideration of the sum of six hundred dollars and treatment till cured of this trouble by C. L. Norbom, medical gymnast, to him paid by Seattle, Renton & Southern Ry. Co., a corporation, duly organized under the laws of the state of Washington, the receipt whereof is hereby acknowledged, do release, acquit and forever discharge the said Seattle, Renton & Southern Ry. Co. of and from all claims and demands, actions and causes of action whatever, for damages, costs, loss of service, expenses and compensation, on account of or in any way growing out of, and hereafter to grow out of accident at Atlantic City on August 5, 1906, and do hereby for my heirs, executors and administrators, covenant with said Seattle, Renton & Southern Ry. Co. forever to indemnify and save harmless the said Seattle, Renton & Southern Ry. Co. against all claims and demands of all persons for damages, costs, expenses, or compensation for, or on account of, or in any way growing out of said accident. (Duly signed and witnessed)
that, at the time of the making of the delivery of said release, defendant paid to the plaintiff the sum of $600, and at various times between the 3d day of October, 1906, and the £4th day of March, 1908j the defendant paid to C. L. Norbom the sum of $771, for treatment of plaintiff by said Norbom as mentioned in said release, and also that the defendant had paid to divers physicians for medical examinations of said plaintiff the sum of $17.50.
Plaintiff’s reply alleges that, immediately after the injury to the plaintiff as set forth in the complaint, defendant sent to plaintiff a physician and the said C. L. Norbom, medical gymnast, and the said physician and medical gymnast examined the plaintiff as to the extent and nature of his injuries, and then and there advised plaintiff that his injury was not of a serious nature and would not prove permanent; that they could and would effect a cure of said injury within six months, and that plaintiff’s only loss by reason of such
This case was before this court once before, and is reported in 55 Wash. 625, 104 Pac. 825, where the circumstances are stated at length. Upon the close of the evidence in that case, counsel for defendant moved for a nonsuit, which was granted; from' which disposition of the case an appeal was taken to this court, the judgment of the lower court was reversed, and the cause sent back for trial. An
It is, however, contended by the appellant that, under a contract of settlement and release, the defendant company was compelled to make the payments to Norbom for his services, and did so only in furtherance of and in carrying out its agreement under the contract. It is confessed that the $600, paid by the defendant to the plaintiff at the time the release was signed, was, under the instruction of the court, taken into consideration by the jury, and defendant was allowed a credit therefor under the verdict of the jury. But the contention is that anything that the defendant was called upon to pay, and did pay under the terms of the contract, if the contract is to be repudiated, should be credited to defendant; that, as it is admitted that the defendant paid out $788.50 under the terms of the contract, the defendant should have been credited with that amount; that, being allowed and credit given on the verdict, defendant would be entitled to a judgment against the plaintiff for the sum of $38.50 as asked for by motion; and that it was error to deny such motion and enter judgment on the verdict of the jury for $750, or in any other sum.
There seems to us to be no merit in this contention. The
Finding no reversible error, the judgment is affirmed.
Ellis, Crow, Morris, and Chadwick, JJ., concur.