Viallet v. Consolidated Ry. & Power Co.

84 P. 496 | Utah | 1906

McCARTY, J.,

after stating the facts, deivered the opinion of the court.

As the record now stands the negligence of respondent must be conceded. Therefore, the only question before us is, was there sufficient evidence tending to show that the release in question was obtained under such circumstances as to make it fraudulent and void, to entitle the appellant to have the case submitted to a jury? We think this question must be answered in the affirmative.

When respondent’s physician took charge of appellant at the drug store soon after the accident occurred which caused his injuries, set and bandaged his shoulder, and otherwise treated his injuries in a professional capacity, the confidential relation of physician and patient was created, and continued to exist thereafter, as shown by the record, for several weeks after the release in question was signed and delivered by appellant to respondent. The law is well settled that from the time the relation of physician and patient is created until it ceases to exist, the physician is not only legally bound to act in the utmost good faith in his treatment of his patient professionally, but he is inhibited from taking advantage of the confidence growing out of this relation, reposed in him by his patient, and, by misrepresentations, or other unfair means, or by the exercise of undue influence, induce his patient to convey, transfer, or otherwise dispose of, to such physician, or to other parties whom the physician may represent in other capacities, valuable property rights for a wholly inadequate consideration as appears from the record was done in this case. (9 Cyc. 456-458; Woodbury v. Woodbury [Mass.], 5 N. E. 275, 55 Am. Rep. 479; Unruh v. Lukens, 166 Pa. 324, 31 Atl. 110; Pomeroy’s Eq. Jur., sections 956, 963.)

It appears from the record that appellant is a man of limited experience and meager education, and, at the time of the injury complained of, was wholly without experience respecting this class of injuries, or of any other matters pertaining to medical science; and there is evidence in the record which tends to show that he not only had faith in the skill and ability of respondent’s physician as a doctor but had the utmost confidence in his integrity and uprightness as a man. And the evidence also tends to show that appellant not only believed the representations made to him by the physician respecting the nature and extent of his injuries and their probable duration, but that he acted upon them when he signed the release in question. The record as it now stands tends to show that the physician, during the three days that he attended appellant in a professional capacity, before the release was obtained, not only professed great solicitude for him as a patient, but his demeanor and whole course of conduct was such as would tend to disarm appellant of all suspicion and distrust, if any he had, of his lack of good faith, and lead him to believe that he, the doctor, desired — in fact was anxious — to have the railway company, respondent herein, pay appellant a sum of money commensurate with the damages he had sustained by reason of his injuries, even going to the extent, in his apparent solicitude for appellant’s welfare, of offering to pay a part of a stipulated sum “out of his own pocket” in order that a settlement might be made on what he claimed to be a just and fair basis. And we think the evidence fairly tends to show that the physician acted in a dual capacity of both claim agent and doctor, and, while attending and waiting upon appellant as his patient, recklessly made statements and gave assurances respecting the nature and probable duration of appellant’s injuries that had a tendency to deceive and mislead him, for tbe purpose of inducing plaintiff to sign tbe release in question, and make tbe settlement complained of.

It is urged by respondent that appellant’s own testimony shows that wben be signed tbe release be bad some doubt of tbe correctness of tbe statements made and opinions expressed by tbe doctor respecting tbe extent of bis injuries, and therefore be must be held to have acted upon bis own judgment and not that of tbe doctor. Some detached portions of appellant’s testimony on cross-examination, considered by themselves, would seem to support this contention; but, taking bis testimony in its entirety, we think that it reasonably shows that be relied almost implicitly upon tbe representations made and assurances given by tbe physician as to tbe extent of bis injuries. But even if it be conceded that plaintiff, notwithstanding tbe repeated assurance of tbe physician that bis injuries were slight, and that tbe disability caused thereby would be of short duration, still bad some doubts as to their absolute correctness, be is not necessarily bound by tbe release, provided be was induced to sign it because of such representations and assurances. Tbe rule is, that it is not necessary, in order to avoid a contract of this kind, wben tbe transaction is between physician and patient, to show that tbe patient bad unquestionable belief in tbe infallibility of the judgment of tbe physician to- whom be has given bis confidence, and to accept, without question or - doubt, tbe statements and representations made, by which be is induced to part with bis property. It is sufficient, if tbe statements made and assurances given by tbe physician induce tbe patient to part with bis property, even though be may have some doubt as to their absolute correctness. (Peterson v. Chicago Ry. Co., 38 Minn. 511, 39 N. W. 485.)

Counsel for respondent cite and rely upon tbe case of Eccles v. Railway Co., 7 Utah 335, 26 Pac. 924, as decisive of this case. In that case tbe plaintiff was attended and waited on by her own physician, who in no way, in tbe interest of tbe railway company or otherwise, used any influence to induce her to sign tbe release therein mentioned. By an examination of the opinion in that case, it will be seen that the company’s physician called to see plaintiff about twenty hours after she was injured, and found her sitting up, and said to her, “Oh, there is nothing wrong with you at all, etc.” The doctor then went away, and she never saw him afterwards. Eleven days after the company’s doctor called to see her, she, at the solicitation of the railway company’s claim agent, and on the advice of her husband and father-in-law, signed the release therein mentioned. It also appears from the opinion that from the time of her injury, until she signed the release, “she had a physician of her own in constant attendance with whom she could, and doubtless did, consult as to the probable effect of her injuries.” It will be observed that in that case the relation of physician and patient was not created, and did not exist between the plaintiff and any physician who represented the railway company. Nor was it shown that her own physician used, in the interest of the railway company, any undue influence to induce her to sign the release therein mentioned. In other words, the plaintiff in that case dealt with the company and its representative at arm’s length. Whereas, in the case at bar, the evidence as it now appears tends to show that soon after appellant was hurt-, and while in an unconscious condition, and while he was being treated for his injuries by another physician, he was taken in charge by respondent’s physician, who set and bandaged his shoulder, and thereafter made regular visits to his home, and waited upon him there, ostensibly, for the purpose of giving him medical treatment, but the main and principal object being to procure as favorable settlement for his company as he could induce appellant to make; and his apparent solicitude for appellant’s welfare, as heretofore observed, was only a cloak to remove whatever doubt or suspicion he might have had respecting the good faith of the doctor, and to quiet his (appellant’s) fears and apprehensions as to the gravity or seriousness of his injuries. It will thus be seen that there is but little, if any, similarity in the facts of the respective cases. Therefore the decision in the Eccles Case is notdecisive of the case under consideration.

Respondent cites Nelson v. Minneapolis St. Ry. Co. (Minn.), 63 N. W. 46, and Houston, etc., Ry. Co. v. McCarty (Tex. Sup.), 60 S. W. 429, 53 L. R. A. 507, 86 Am. St. Rep. 854, as authority in this case. By an examination of these cases, it will be seen that the relation of physician and patient did not exist between plaintiff and defendant’s agent in either of them. Nor was there anything said or done by the agent of defendant in either case calculated and intended to deceive and mislead the plaintiff as to the extent of his injuries, for the purpose of inducing him to sign a release for a sum which afterwards proved to be inadequate and out of proportion to the injuries received; the most serious of which were unknown to either party when the settlement was made. In the case of Nelson v. Minneapolis St. Ry. Co., the court, in the course of the opinion, say :

“There is not a particle of evidence tending to show that either of the physicians intentionally misrepresented the extent of plaintiff’s injuries or that the statements made by them were not their honest opinions according to their best professional judgment based on existing symptoms.”

And the court further observes:

“These physicians were not sent to settle plaintiff’s claim, or to advise her. The extent of their authority was to ascertain the nature of her injuries and report the result to the defendant for its information.”

Iu the case of Houston, etc., v. McCarty, supra, the plaintiff, while a passenger upon one of defendant’s passenger trains was injured in a wreck caused by the actionable negligence of defendant. At the time plaintiff appeared to have sustained no injury except a sprained ankle, and, as stated in the opinion.

“Neither the appellant’s [defendant’s] agent nor appellee knew or suspected injury to any other part of appellee’s person, and appellee exercised reasonable care to ascertain if he was otherwise injured.”

The plaintiff accepted $450, as settlement in full for all damages sustained by him in the wreck in which his ankle was injured, and signed a release by which he “released and forever discharged” the defendant from all liability because of any injuries received by Him in the wreck. Afterwards, plaintiff discovered that He Had received other injuries, which were unknown to him at the time of the settlement referred to, and that the $450 received by him from the company was inadequate and out of proportion to the injuries of other parts of his body, and he brought suit to set aside the release and recover damages for the additional injuries. Neither fraud nor misrepresentation was alleged or relied upon as a basis for setting aside the release. The court, in a well-considered opinion in which many cases are cited and reviewed, and properly so, that plaintiff, under the circumstances, was was barred by his contract. The court, after observing that “the appellee [plaintiff] . . . had at least the same knowledge and the same means of obtaining knowledge as the appellant, and if there was no fraud in the transaction, the settlement was binding upon him,” correctly states the general doctrine as follows:

“That where a party, who has a claim against another for personal injuries, agrees 'upon a settlement of his claim, and accepts a sum of money or other thing of value in settlement of such claim; he is, in the absence of fraiid or concealment, concluded in the settlement, is a proposition sustained, as we think, by one unbroken line of authority]” citing numerous cases.

In each of the two cases last referred to, the facts were equally within the knowledge of the plaintiff and defendant, and no relation of confidence and trust existed between the parties. In the case before us the. jury might well have found from the evidence, as it now appears in the record, that respondent’s physician knew or had reason to believe that plaintiff’s injuries at the time he signed the release, were much more serious than he (the doctor) represented them to be, and that he intentionally concealed from plaintiff his real condition, and that plaintiff, on account of the doctor’s superior knowledge, accepted and acted upon the representations and assurances made by him respecting the condition and probable duration of His (plaintiff’s) injuries.

Tbe case is reversed, witb directions to the trial court to set aside the judgment, and to grant a new trial. Costs on this appeal are taxed against respondent.

BARTCH, 0. J., and STRAUP, J., concur.