338 Mass. 178 | Mass. | 1958
This action of tort was brought under the Federal employers’ liability act, 45 U. S. C. (1952) § 51 et seq. (hereinafter called the act). The plaintiff’s bill of exceptions presents the question whether the trial judge correctly directed a verdict for the defendant.
The case was referred to an auditor whose report, together with certain documentary evidence, was introduced in evidence at the jury trial. The facts, in their aspect most favorable to the plaintiff, are stated below.
The plaintiff was a track worker, subject to the act, employed by the defendant. On September 12, 1952, he was
The four men moved several rails with difficulty. Before moving another rail, the plaintiff “instructed his coworkers on the other end of the rail not to drop their end until he gave them a signal to do so.” While carrying this rail, “suddenly without warning the two men on the other end of the rail dropped their end .... To avoid being struck by the rail, the plaintiff jumped and as he did his left foot ... went into a hole . . . [about six inches deep and twelve inches square] recently . . . dug . . . causing the plaintiff severe injury.”
The plaintiff received hospital treatment and thereafter remained under regular treatment by a physician in the employ of the defendant. In June, 1954, he was again admitted to the hospital. “The diagnosis of a ruptured disc was arrived at and on July 27, 1954,” he underwent an operation. His aggregate hospital and medical bills amounted to $1,420.60.
From October 9, 1952, to March 20, 1953, the defendant made a number of payments to the plaintiff amounting in the aggregate to $2,400. On March 20, 1953, the “plaintiff signed a general release prepared by the defendant releasing the defendant ‘ on account of damages of whatever ... description now existing or which may arise . . . out of the injuries . . . received by me at . . . Worcester . . . on . . . 12th . . . September, 1952.’ . . . [T]he plaintiff also wrote on the release . . . ‘ I have read this release and understand it.'"
Despite the release, the auditor found for the plaintiff and assessed damages in the sum of $12,400 from which the sum of $2,400 already paid was to be deducted. Further findings of the auditor about the release are discussed below in connection with the consideration of its validity.
1. Federal law, and not the law of Massachusetts, applies to the issue under the act whether the evidence warrants a finding that the defendant was negligent. Labonte v. New York, N. H. & H. R.R. 333 Mass. 420, 421-422, cert. den. 351 U. S. 974. Ellis v. Union Pac. R.R. 329 U. S. 649, 653. Rogers v. Missouri Pac. R.R. 352 U. S. 500, 507, note 13. Federal law also controls the determination whether the release of liability under the act is valid. Dice v. Akron, C. & Y. R.R. 342 U. S. 359, 361-364. See South Buffalo Ry. v. Ahern, 344 U. S. 367, 372. See also McCarthy v. New York, N. H. & H. R.R. 285 Mass. 211, 215.
2. The subsidiary findings of the auditor would warrant a jury in finding that the defendant was chargeable with negligence under the act. “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. . . . The statute expressly imposes liability upon the employer to pay damages for injury or death due 'in whole or in part’ to its negligence”. Rogers v. Missouri Pac. R.R. 352 U. S. 500, 506-507. 45 U. S. C. (1952) § 51. The act expressly makes the employer liable, to persons entitled to benefits of the act, for the negligent
The presence of a newly dug hole (six inches deep and twelve inches square) in a railroad yard, where minor changes in conditions and slight irregularities in ground surface might well be expected, by itself hardly seems sufficient basis for a finding that the railroad provided the plaintiff with an unsafe place to work. Labonte v. New York, N. H. & H. R.R. 333 Mass. 420, 424, cert. den. 351 U. S. 974. The jury, however, would have been warranted in finding that the sudden dropping, without warning and despite the plaintiff’s instructions to his coworkers, of one end of the rail was negligent conduct for which the defendant was responsible under the act. See McCurry v. Thompson, 352 Mo. 1199, 1204-1206; Cules v. Northern Pac. Ry. 105 Wash. 281, 285. See also New York Cent. R.R. v. Marcone, 281 U. S. 345, 349-350. Tins conduct could be found to have caused the plaintiff to jump to avoid being hit, without opportunity to select his landing place carefully. See Kane v. Worcester Consol. St. Ry. 182 Mass. 201, 202; Rollins v. Boston & Maine R.R. 321 Mass. 586, 589; Holmes v. New York Cent. R.R. 330 Mass. 155, 160; Chicago Great West. Ry. v. Scovel, 232 F. 2d 952, 957 (8th Cir.), cert. den. 352 U. S. 835; Prosser, Torts (2d ed.) 137-138; Harper and James, Torts, § 16.11. See also Rogers v. Missouri Pac. R.R. 352 U. S. 500, 502-504.
The pertinent findings of the auditor with respect to the release were as follows: (1) Weekly payments of $100 each were made to the plaintiff, over a period of twelve weeks. A $300 payment was made on March 1, 1953. The claim adjuster ‘ ‘ told the plaintiff that he was paying him the wages which he would have earned if . . . employed ” and the plaintiff believed this. (2) The claim agent “represented” that a payment of $900 to the plaintiff, made on March 20, 1953, when the general release was signed, “was likewise for additional wages.” The plaintiff was “not aware that he was signing a release of all claims.” (3) “At the time that the plaintiff signed this release, he believed that it was for back wages due to him.” (4) The plaintiff then “was not aware of the extent or nature of his injuries . . . nor did the defendant’s physician who attended him at that time tell him to what extent . . . the plaintiff was injured.” (5) "On the day that the plaintiff signed the release he did not read” it and he “was under the influence of intoxicating liquor.” ‘(6) The plaintiff underwent substantial medical treatment after March 20, 1953, for spinal injuries, the true nature of which appears to have been diagnosed in June or July, 1954. The auditor found that, in addition to the aggregate of $2,400, in fact paid, the plaintiff should receive $10,000. As the validity of the release must be determined under Federal law, we do not consider, and express no opinion, whether the release could have been disregarded under our Massachusetts decisions.
The decisions of certain of the Federal courts of appeals apply much less definite standards for determining whether releases may be avoided for fraud than are expressed in the Supreme Court’s opinions in the Callen case and the Dice case. See Graham v. Atchison, T. & S. F. Ry. 176 F. 2d 819, 826 (9th Cir.), where the court suggests that even “an innocent misrepresentation” would be "ground for voiding a release induced by it”; Purvis v. Pennsylvania R.R. 198 F. 2d 631, 633 (3d Cir.); Camerlin v. New York Cent. R.R. 199 F. 2d 698, 701-702, 703-704 (1st Cir.); Marshall v. New York Cent. R.R. 218 F. 2d 900, 905-906 (7th Cir.). See also cases, where there was apparently evidence of affirmative misrepresentations by the defendant, like Brown v. Pennsylvania R.R. 158 F. 2d 795, 796 (2d Cir.), and the somewhat analogous decisions like Irish v. Central Vt. Ry. 164 F. 2d 837, 839-840 (2d Cir.), and Gifford v. Wichita Falls & S. Ry. 211 F. 2d 494, 496-497 (5th Cir.). The cases just cited, because of the vagueness of the standard which they state,
The auditor’s findings comprise the principal evidence placed before the jury. Because of the introduction at the jury trial of certain correspondence, releases, and other documentary material, the findings on the issue of fraud are deprived of the “compelling” effect which they might otherwise have under the principles stated in Cook v. Farm Serv. Stores, Inc. 301 Mass. 564, 566-567. See Ball v. Williamson, 336 Mass. 547, 551; Institute for Maintaining Drycleaning Standards Model Plant, Inc. v. Wm. Filene’s Sons Co. 336 Mass. 573, 574; G. L. c. 221, § 56; Rule 88 of the Superior Court (1954). Compare Salter v. Leventhal, 337 Mass. 679, 696-697.
Examination of the findings reveals that, on the issue of fraud, they are incomplete and indefinite in respects in which positive and clear findings should have been made one way or another. There was no explicit finding whether the claim agent misrepresented that the general release was only a receipt for wages. The auditor did find that the claim agent represented that the several payments were for wages, but the significance of this is uncertain in view of the plaintiff’s letter of March 2,1953. That letter gives at least strong basis for an inference that, several days prior to the signing of the release, the parties had been discussing settlement in terms of a payment equivalent to a certain number of months’ wages. A jury could not reasonably infer, upon the basis of (a) the statement that the payments were for wages, and (b) the finding that the plaintiff “believed” that the release “was for back wages,” that the claim agent made any separate affirmative representation about the contents of the release. If the auditor concluded that any such representation had been made, he should have said so clearly.
The fact, if found, that the plaintiff was drunk or seriously intoxicated would be, like impairment of mental faculties, “a factor . . . to be considered in determining whether he has been imposed upon by the fraudulent representations of another.” See Shaw v. Victoria Coach Line, Inc. 314 Mass. 262, 266-269; Bowman v. Illinois Cent. R.R. 11 Ill. 2d 186, 202-203, 205-211. So, under the Federal cases, would be the finding that the plaintiff did not read the release (if that finding be believed despite the plaintiff’s written statements to the contrary). See Marshall v. New York Cent. R.R. 218 F. 2d 900, 903-904 (7th Cir.); Humphrey v. Erie R.R. 116 F. Supp. 660, 661, 663 (S. D. N. Y.). See also Graham v. Atchison, T. & S. F. Ry. 176 F. 2d 819, 826 (9th Cir.). Neither of these circumstances, however, even if accepted as true, would seem, standing alone, to be sufficient proof of fraud or ground for avoidance of the release. See Shaw v. Victoria Coach Line, Inc., supra, at pp. 266-267.
Fraud, of course, is not to be presumed. See Stow v. Commissioner of Corps. & Taxn. 336 Mass. 337, 341. In the light of this principle, it would be hard to view as warranted a finding that the release was procured by “deliberately false and material statements . . . made to deceive” (see Dice case, 342 U. S. 359, 362) without an unduly elastic construction of the auditor’s equivocal findings and without permitting unreasonable inferences from those findings. Accordingly,' we rest upon another ground our decision that it was incorrect to direct a verdict for the defendant.
The record does contain findings which might give rise,
In Callen v. Pennsylvania R.R. 332 U. S. 625, 627-629, the issue whether a release was executed in mutual ignorance of the permanency of an injury was held to be for the jury and it was assumed that, in circumstances similar to those here present, there might be found to be a mutual mistake. Other Federal cases recognize that a mutual mistake about the extent of injuries is ground for avoiding a release under the act. Graham v. Atchison, T. & S. F. Ry. 176 F. 2d 819, 821-825 (9th Cir.); Chicago & N. W. Ry. v. Curl, 178 F. 2d 497, 501-502 (8th Cir.); Humphrey v. Erie R.R. 116 F. Supp. 660, 665-666 (S. D. N. Y.); Cleghorn v. Terminal R.R. Assn. of St. Louis, 289 S. W. 2d 13, 21-22 (Supr. Ct. Mo. 1956). Cf. the different rule in Massachusetts found in Tewksbury v. Fellsway Laundry, Inc. 319 Mass. 386, 388, where Dolan, J., speaking for the court said, “It is settled in this Commonwealth that one who executes a release for consideration for the injuries then known cannot, on the subsequent discovery of injuries not known or suspected at the time of settlement, obtain a cancellation of the release on the ground of mutual mistake, and that the release is binding in the absence of fraud or concealment.” The Federal decisions, of course, are applicable here.
The auditor’s subsidiary findings affecting the issue of mistake are general and provide only slight basis for concluding
4. We have noted above various respects in which the auditor’s report should have been more specific and informative. The purpose of such a report is to clarify difficult issues for the jury. The present case is clearly an instance in which recommittal of the report to the auditor for clarification and amplification of the findings would be within the discretion of a judge of the Superior Court, before submitting the case to another jury. See W. R. Grace & Co. v. National Wholesale Grocery Co. Inc. 251 Mass. 251, 253; J. W. Grady Co. v. Herrick, 288 Mass. 304, 310; Staples Coal Co. v. Ucello, 333 Mass. 464, 467. See also Lombardi v. Bailey, 336 Mass. 587, 595-596.
Exceptions sustained.
See eases collected in Tupper v. Hancock, 319 Mass. 105, 107-108, and Century Plastic Corp. v. Tupper Corp. 333 Mass. 531, 533-535; Abrain v.