111 F. 435 | U.S. Circuit Court for the District of Northern Iowa | 1901
This is a suit in equity brought for the purpose of securing the rescission and cancellation of a written agreement of settlement entered into, under date of March 1, 1898, between the complainant, and the defendant railway company, whereby, in consideration of the payment of $600, the complainant released the railway company from all claims or demands “by reason of in
"They offered me $300 to settle with them, and I asked them about,—If X was to get well; when I was to get well; and I wanted to get well. I told them that was the main thing. He asked me what my occupation was. I didn’t know the extent of my injuries, and they seemed to think I would get well without any trouble, and asked my occupation. I told them I was a nurse, and X had $.10 a week when I was able to do anything. That is what X had. Q. Well, did they tell you when you would he well? A. They said there was no doubt hut X would he well within a year. Q. Who said that to you? A. The agent. Q. Did the doctor say anything? A. They asked the doctor, and he said, ’No doubt of it.’ ”
Dr. Thompson testifies that:
“The question was asked me of how long I thought that she would he Incapacitated, and I said .she would not be able to do anything at least for a year; the injury was very slow to repair, if it did repair; and that she could not expect to be able to do anything inside of that time, and that there was no certainty of her ever entirely recovering; that those injuries resulted generally in a permanent disability.”
What the witness meant by the statement that injuries of that character resulted generally in a permanent disability is shown by ihe statement subsequently made, “That the cases that I have treated have all resulted in recovery, with a partial halt in the gait.” In other words, the statement of the doctor was to the effect that a complete or entire recovery was not probable, in that she would suffer from a partial halt in her gait, and that she could not expect to be able to do anything inside of a year.
The agent of the company, E. W. De Moe, who procured the execution of the release, testifies that:
“To the best of my recollection, it was conceded by all of us present there that the injury was a serious one, and the principal objection Mrs. Wilcox seemed to have against signing a release was the fact that she would probably lie laid up for a long period of time. The matter was referred to I)r. Thompson in an indefinite sort of way, and just what was said by him at that time X don’t remember. The drift of the conversation was that in all probability Mrs. Wilcox would he laid up at least a year,—he Incapacitated for work,—and I made the suggestion that I didn’t want to wait that long to adjust the case; and we figured, in a general way, about what she could earn, taking a year as a basis, and I think it amounted to something like $500.”
From the evidence it fairly appears that the paramount thought in the mind of Mrs. Wilcox was how long would she be incapacitated for work. She was a widow, dependent on her own work as a nurse for her support. Naturally during the week that had intervened since her injury the thought ever present with her was, “How soon can I hope or expect to be about again?” so as to resume her occupation as a nurse. This was the query which she anxiously
The plaintiff has tendered back to the defendant the money paid upon the settlement, and has therefore done all that is necessary to secure a rescission of the contract of settlement, and a decree of rescission as prayed for will be entered-in the case.