233 F. 900 | 6th Cir. | 1916
(after stating the facts as above).
In the charge to the jury, the trial court stated that the issue joined upon the replication was one of fraud or mutual mistake, and, after submitting the question whether plaintiff was or was not in fact ruptured, said:
“I sliall liolct and charge you that If you find that this rupture proximately resulted from the accident and the man didn’t know that he was hurt there, or if he knew that he had some trouble in that region and was misled by the statements of the agents of the defendant company, then he would be entitled to recover for the injury to his side. But the burden is on him to prove that he was hurt; that is, that he had the. rupture, and that he was misled by the doctor or the agent, and that his uneasiness in that direction was allayed by their statement that it would soon pass away. That they may have done either honestly or on purpose. That is to say, they may have known or believed that it would not pass away and that it was not eause(d) by the mere shaking up and mei;e matter of nausea, and if they did know it was not so caused, then they misled him; or they may not have known that the injury had been sustained in the side and may have said to him and in good faith that it was a merely temporary ailment and would soon pass away. But, if they did either one, in point of fact, and they didn’t intend to include for that injury in the side in the settlement they made with him, then they would still be liable, if the man was so injured. I don’t know whether I am making myself very clear or not, but I am trying to present the case here so that you will understand that the settlement made would not bar this plaintiff from recovering for the injury to the side unless the parties intended and understood that they were including the injury in the side within the terms of that settlement and the plaintiff was not misled about it to any extent by the defendant.”
It is urged that the trial judge misinterpreted the issue and submitted the case to the jury on the theory that the question presented by the pleadings was whether the parties intended to make a full settlement or only one for the damages arising from injury to plaintiff’s ankle; counsel’s insistence being that no issue was tendered except the question, “Was the plaintiff at the time he signed the release capable of making a valid contract?” The court, as we have seen, stated the issue to be one of fraud or mutual mistake, the exact language being:
“The defense is that of not guilty, the general issue, and further a special defense that the defendant had settled with the plaintiff for whatever injury he had sustained by reason of the derailment of this train, and that the defendant is not liable to him for anything further.
“There is a replication filed by the plaintiff to that plea, in which he sets up that it was obtained by fraud or mutual mistake, and upon that replication, the 'defendant joins issue.”
It was not necessary to restate the issue, but its alternative character — fraud or mistake — appears to have resulted in some confusion in the course of the charge. For example, the plaintiff was declared entitled to recover for the injury to his side, if at the time the release was given he did not know of such injury, or if the intention was not to include that injury in the release, or if the understanding was so to include the injury and plaintiff was not misled in that respect. The real meaning of all this, however, seems to have been made clear by a special instruction which was given at defendant’s request after the general charge was concluded; it was stated in this instruction that:
*903 “If the plaintiff understandingly settled his claim and was not misled or deceived by the defendant in any way, his action is barred, even though at the time of the settlement he was hurt more seriously than he thought.”
It is true that this instruction as submitted ended with the following clause, which was stricken out: “and in a particular that he did not know.” But that clause did not, while the next preceding and granted clause did, describe plaintiff’s condition; for the record stands as a practical admission that shortly before the settlement plaintiff told the physician of the pains he was suffering in his loins and groin. The excluded words, therefore, were not applicable; and, moreover, the granted clause “even though at the time of the settlement he [plaintiff] was hurt more seriously than he thought,” qualified and rendered harmless the words of the general charge, “if you find that this rupture proximately resulted from the accident and the man didn’t know that he was hurt there”; for the special instruction as given is bottomed on the idea that the action was barred unless plaintiff had in some way been “misled or deceived by the defendant,” whether at the time of the settlement he knew or did not know the nature or extent of the injury of which he had complained. Again, plaintiff’s “intention” concerning this injury, as well as his concurrence in any “understanding” had in reference to it, might well have been brought about by the representation of the physician and its repetition by the claim agent. This instruction was the last expression of the court’s view of the situation and also that of the parties in regard to the controlling issue of fact to be submitted to the jury; it was indicative of the very atmosphere of the trial and was calculated to clarify the situation; its effect was distinctly to reduce the issue to that of the alleged fraud. We may therefore assume that but for this instruction the judgment would have to be reversed; but we are convinced that any error occurring in the respects pointed out was thus substantially cured. We are strengthened in this view by the fact that the dominant issue traceable through the general charge and practically applied was the feature of fraud; this is shown by the frequent and purposeful use which was made of the word “misled,” in stating the different hypotheses upon which the jury should consider the evidence; and the few omissions strictly to observe and apply this issue were effectively supplied by the special instruction denying the right of recovery “if the plaintiff understandingly settled his claim and was not misled or deceived by the defendant in any way.” When considered in connection with the evidence and the instructions as an entirety, the true interpretation of the verdict is that the release was procured by misrepresentation and fraud; and, unless the evidence does not as counsel claims tend to support such an issue, we must conclude that the errors complained of in the charge were formal rather than material.
“To say to him [Lumley] that the pain of -which he complained was sympathetic, and was caused by the fracture below his elbow, was a positive misrepresentation of the truth, and an operative fraud.”
We call attention to this only for the evidential weight that was there attached to the physician’s statement; .it was not regarded simply as an “erroneous opinion,” as counsel claim in respect of the statement now under consideration. The form of release in the Lumley Case differs from the present one in this, that the injuries settled for in that case were specified in the release, while here the injuries covered by the present form of release were not; and the settled rule there followed in substance is that general language following injuries mentioned in a release will in its scope and effect be restricted to those particular injuries. Lumley Case, 76 Fed. at page 71, 22 C. C. A. 60; Texas & Pacific Ry. Co. v. Dashiell, 198 U. S. 521, 527, 528, 25 Sup. Ct. 737, 49 L. Ed. 1150; Union Pacific Ry. Co. v. Artist, 60 Fed. 365, 367, 9 C. C. A. 14, 23 L. R. A. 581 (C. C. A. 8). This rule, however, cannot impair the evidential character and weight that should be accorded to the statement made by the physician and repeated by the claim agent in the instant case. The settlement here occurred shortly after the accident happened, and on a relief train which seems to have been sent for the purpose of continuing the trips of those who were on the derailed train to their destinations as far at least as Memphis; the claim agent was on this relief train and engaged in securing settlements with passengers in addition to the plaintiff; and when it is recalled that the agent appears to have known what the physician had said to plain
“If the release had in fact been procured by fraud, he (the plaintiff) could have shown this at law, if the fact that the release was under seal Lhad been] out of the way.”
And this was approved in the Wagner Case, 90 Fed. 404, 33 C. C. A. 121.
We appreciate the claim of counsel that the rule of this court as thus pointed out is in conflict with the rule of the Supreme Court, and that it has not met with entire approval in some of the other federal courts. It is sufficient for present purposes to refer to the Supreme Court rule alluded to,, as Mr. Justice Swayne stated it, in George v. Tate, supra, 102 U. S. 570, 26 L. Ed. 232:
“It is well settled that the only fraud permissible to be proved at law in these eases (the procurement of a bond in that case) is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give. * * * The remedy is by a direct proceeding to avoid the instrument.”1
We think the decision in that case and the decisions in other cases of a kindred character are sufficiently distinguished by the fact that they deal with sealed instruments, and so, for that reason alone, the rule in the Wagner Case cannot be said to be in conflict with those decisions. Indeed, after reviewing many decisions concerning the rule
“Except for the peculiar sanctity anciently attaching to a sealed writing at common law, which is now disappearing, it is difficult to see how there could be any doubt about the right id an action at law to avoid a release by a reply of fraud. The release or surrender is a contract (and in the case at bar not under seal), in which, for a valuable consideration, the releasor agrees to give up all claim and interest in his right of action. In the case of a contract of sale of personal property, a party may, by tendering back either the money or the property, as the case may be, rescind the sale for fraudulent misrepresentation as to any material fact inducing him to enter into the contract, and, if sued on the contract, may plead such rescission and justify it. Why may not one on the same ground and in the same way rescind a release, or, when it is produced against him as a bar to an action, avoid it by showing the fraud? * * * This is an ordinary remedy as to all other contracts. Leake, Cont. 320, 321. Why not as to this? On page 802 Mr. Leake says: ‘In the case of a releasing creditor having been induced to give the release by the fraud of the debtor, he may avoid it at his election without the aid of the court, and he may meet a plea of release ih an action by replying that the release was obtained by fraud.’ ”
While the release involved in the instant case is in form a sealed instrument, yet long prior to its execution the use of such seals was abolished in Tennessee by statute, which declares that:
“The addition of a private seal to an instrument of writing hereafter made, shall not affect its character in any respect.” Shannon’s Code (Ed. 1895) § 3213.
Clear and positive enactment like this cannot be aided by construction; its intent was at once to abolish the private seal and to destroy the accustomed effect of such a seal; the statute is more sweeping than that of Michigan, which was under consideration by this court in Wabash Western Ry. Co. v. Brow, 65 Fed. 941, 952, 13 C. C. A. 222.
Further discussion is unnecessary. After careful consideration of all the assignments we are satisfied that none of them presents reversible error. The judgment is affirmed, with costs.
We assume that tho act passed March 3, 3915, providing that “in all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing, a bill on tho equity side of the court,” etc. (38 Stat. 956, c. 90, § 274b), is not applicable here, for the reason that the instant case was commenced October 27, 1913.
«=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes