210 N.W. 762 | Iowa | 1926
I. The accident in question happened at 5:15 P.M. on October 21st, at the intersection of Independence and Irving Streets in the city of Waterloo. Independence is an east and west street, and Irving is a north and south street. Both parties were traveling on Independence Street, — the plaintiff going east, and the defendant going west. The plaintiff rode a bicycle, and the defendant drove an automobile. The defendant approached Irving Street from the east, and turned south on Irving. The plaintiff approached Irving Street from the west, and proceeded on Independence Street across Irving Street. He had nearly crossed the intersection with Irving Street when the collision occurred. His claim is that the defendant, in turning from Independence Street into Irving, cut the southeast corner of the intersection, and failed to keep to the right of the center of the intersection. The collision occurred at the southeast corner of the intersection. The automobile struck the plaintiff and ran over him for its full length. He was picked up ten feet behind the automobile. Both bones of his left leg were broken near the ankle. The fracture was compound, — the *187 broken bones protruding through the skin of the leg above the ankle. He suffered injuries to the head and shoulders and wrist, also. He was taken to the hospital, and came under the care of a physician. The settlement pleaded by the defendant was had at this hospital on the evening of October 23d. The contract of settlement was procured by the agent of an 1. PLEADING: insuring company. The fraud pleaded in avoidance issues, was that the settlement was obtained from the proof, and plaintiff under a condition of helplessness on variance: his part, and by false representations made by similar the agent to him. The petition charged these representa- representations to be that the doctor's charges tion. incurred would not exceed $10, and that his hospital bill would be $5.00 a day for three or four days. The evidence was that the agent said to the plaintiff that the doctor's charge would "be about $10." The grounds of appeal presented by the defendant, as appellant, are concentrated upon this evidence. Two points are raised: (1) That there is a fatal variance between evidence and pleading; (2) that the alleged false representations testified to were mere expressions of opinion, and furnished no actionable basis.
As to the first proposition, the petition alleged that the agent represented that the doctor's bill would "not exceed $10." The evidence in support of this allegation was as already stated. Was the variance necessarily material? That question depends upon still other evidence. If the doctor's bill had been in fact $10 or less, the variance would be clearly immaterial. If the doctor's bill had been approximately $10, but slightly in excess thereof, the variance might be deemed material. At the time this representation was made, the doctor's bill amounted in fact to $64. For the purpose of this case, therefore, we think that a statement that the doctor's bill would "not exceed $10," and a statement that it was "about $10," amount to the same thing, and present no material variance. The fact that the court submitted the issue to the jury as it was pleaded, rather than as it was proved by the testimony, could not work any prejudice, in view of the fact that both statements were so nearly identical, as compared with the true fact. We hold, therefore, that this assignment of error is not available to the appellant.
II. The question whether the statements proved, constituted false representations, within the meaning of the law, is *188 more difficult, and involves a consideration of evidence other than the representations themselves. If the 2. RELEASE: evidence of the representations stood alone, fraud: jury unaided by the circumstances under which they question. were made, we should hesitate to hold them sufficient. The plaintiff is a colored man, reared in Arkansas, and brought to Waterloo by his employer a year or two before the accident. His education was limited, but he was able to read and write in some degree, and was an intelligent and industrious laborer, who commanded a wage of $5.00 a day at a particular job for the round year. The fracture of his leg was a very serious injury. It was some days before the doctor was able to get a successful reduction thereof. We purport only to recite facts which plaintiff's evidence tended fairly to prove. The defendant, Meek, called to see the plaintiff on his first evening at the hospital, which was Tuesday. He assured him at that time that his expenses would be cared for. On Thursday evening, he came again, bringing with him the insurance agent. They came without any previous appointment, and without any declared purpose. The conversation in the first instance was the casual conversation of visitors. The plaintiff was suffering great pain. His leg was in a splint, and was held in an elevated position, from which a weight was suspended over a pulley. His head had been injured, and he was suffering from great headache and from roaring in his head. Sleeping tablets had been administered to him, and a "shot in the arm." This was his physical condition. He had no one present to advise or assist him. He had no warning that he would need any advice or assistance. The conversation was one-sided. The defendant assured him that his expenses would all be cared for. He appears to have been appreciative of defendant's solicitude. The record discloses that the plaintiff assented to everything that was said or proposed to him. After making the representations testified to, the agent said to him, "I will give you $125. Will that be all right?" The plaintiff answered, "I guess so." The agent immediately wrote out the contract of settlement. When he found that the plaintiff could not read it, because of his condition, he read it to him. The plaintiff testified that he could not understand him because he read so fast. The settlement appears to have been accomplished in a very brief time. No objection was *189 made by plaintiff to the offer; no counter proposition was suggested by him. The agent executed the check, and left it upon a little table at the side of plaintiff's bed, and directed him to give it to his wife in the morning. This he did. It does not appear that a copy of the contract was left with him. Shortly thereafter, and after he had opportunity to obtain advice, he purported to rescind the settlement, and served notice accordingly, and tendered the return of the money. The plaintiff testified concerning the representations as follows:
"When the insurance adjuster and Mr. Meek first came out to the hospital that night, they asked me how the accident happened, and I told them, as near as I could, and he finally asked me about $125. He said the doctor charged me about $10 for setting a leg,and I would be in the hospital three or four days, and that would be about $5.00 a day. Then I would be ready to go home; and he asked me again about $125, and I told him I reckoned so. * * * Q. Did the insurance adjuster read it to you? A. Yes, sir; he read it so fast, and did not talk very loud, and I could not understand what he said. I did not understand what he said, because I had such an awful headache and roaring in the head; and I had been given some rest tablets by the doctor, and the sister gave me a shot in the arm; and I did not understand what he said."
The doctor's bill incurred up to the time of the trial amounted to $507, and the hospital bill to $215. The plaintiff had not yet recovered, and had no prospects of recovery within less than two or three months. The trial was had about six months after the accident. It is evident from the foregoing that the plaintiff was under a considerable degree of disability, and that he was not in a condition to transact important business or to protect himself in the proposed settlement. His condition was necessarily apparent to the parties dealing with him. Though the contents of the writing were read to him, they were read so rapidly that he could not understand the same. He did understand the conversation preceding, but there was nothing said in that conversation to indicate that there was to be a writing. Nor was anything said in the conversation which would advise him that the acceptance of $125 would be an absolute bar against his demanding more, in case his doctor's bill and hospital bill exceeded the amount pressed upon him by the agent. On the *190
contrary, the defendant assured him that his expenses would be cared for. The helpless condition of the plaintiff was pleaded in the reply, as an incident of the fraud. Without holding that the mere representations herein set forth were of themselves sufficient to impeach this settlement, if they had been made under different circumstances from those indicated herein, we reach the conclusion that the question of fraud and fraudulent representations, in the light of plaintiff's then physical and mental condition and capacity, was fairly one for the jury. InKilmartin v. Chicago, B. Q.R. Co.,
"Settlements made with an injured party by a claim agent of a railroad, who is rushed to the scene, and who deals with the injured person before he has had time to realize what he has suffered, or is likely to suffer, and without opportunity for consultation, may well be looked upon with suspicion; but in this case we think there is no evidence of fraud or imposition."
In Kilby v. Charles City W.R. Co.,
"This is not a case where an adjuster for a company rushes to a recently injured party, and hastily secures a settlement, without giving the injured party opportunity for reflection or to obtain counsel. * * * The amount of the settlement was not unsubstantial or trivial, and not such as to shock the conscience or be indicative of fraud."
The foregoing statements are quite descriptive of the situation in the case at bar. No other assignment of error is argued than the foregoing.
The judgment below must be affirmed. — Affirmed.
De GRAFF, C.J., and ALBERT and MORLING, JJ., concur.