it from her was an agent of the company. It also tended to show that defendant's doctor had told her that she would be "up and around in ten days or two weeks," but that it was three months before she could walk as well as usual. There was no evidence that the doctor's remark was made to deceive her as to the extent of her injuries, which she admitted were properly described in the release. She also testified that the doctor had told her that "parties usually didn't get anything" when they sued the company, but offered no evidence to show the falsity of the statement. Held, that the evidence failed to establish fraud which would entitle plaintiff to avoid the release.
In banc. Appeal from circuit court, Henry county; James H. Lay, Judge.
Action by Minnie Lee McFarland against the Missouri Pacific Railway Company for injuries. Plaintiff on the circuit recovered judgment for personal damages in the sum of $3,750. Defendant appealed. Reversed.
The petition alleges negligence in the management of defendant's railway. The answer sets up a settlement of plaintiff's claim, and payment of an agreed amount in discharge of plaintiff's cause of action.
The reply contains the following:
"Plaintiff admits that on the 30th day of June, 1890, while she was sick, sore, and feeble, both in body and in mind, as a result of the injuries complained of in her petition, and therefore in no condition whatever to know, and did not know, her real condition, nor how badly she was hurt, nor what amount of damages she had sustained by reason of her said injuries, and while she was ignorant of her rights in the premises, of all of which the defendant was fully advised and well knew, she was induced by the officers, agents, and servants of the defendant to accept in full satisfaction of her damages, on account of the facts pleaded in her petition, the meager sum of one hundred dollars, which amount she tendered back to the defendant as soon as she was sufficiently recovered to know and realize her true condition, and became advised of her rights in the premises, and which amount she now brings into court, and here tenders back to the defendant. Plaintiff now says that as soon as the same could be done, after she was injured, as stated by her in her petition, she was by the officers and servants of defendant taken back to the city of Nevada, and there placed in a hotel, where she was an entire stranger, and there kept until after defendant had procured the pretended settlement pleaded by it, and obtained her signature to some receipt purporting to release defendant from liability to her on account of her said injuries, all of which was done and procured by defendant for the purpose of defrauding her out of her just demands against said defendant, and defeating her of her lawful action against it to compel the payment of the same; and, in making said pretended settlement, defendant, through its officers and servants, purposely and knowingly took advantage of the absence of the family advisers of this plaintiff, when they knew that plaintiff was in no proper condition to know what was proper to do, or to make any settlement about the matter of her said injuries; that the defendant, for the purpose of preventing the friends and family of plaintiff from being present and preventing any such settlement being made, and plaintiff thereby overreached, through its officers and servants, on the day before said pretended settlement was made, to wit, on June 29, 1890, in the afternoon of that day, through its officers and servants stated to her brother and business agent and adviser that the plaintiff was in no condition to settle with defendant the matters now in dispute in this action, and that as soon as plaintiff was sufficiently recovered to be removed safely to her home at Butler, and to make a fair and just settlement of her said claim against defendant, the said servant and officer of defendant would come to Butler, and make a satisfactory and fair settlement of the same with the plaintiff and her brother; all of which facts were unknown to this plaintiff, and by defendant's servants and officers purposely kept from the knowledge of plaintiff, but they, upon the other hand, then and there represented to her at the time of said settlement that the said brother of this plaintiff had been consulted about the terms of the proposed settlement, and had consented to the same, all of which was false, and by said servants known to be at the time of making the same, and were made for the wicked purpose of deceiving and overreaching plaintiff in her then helpless condition, which said settlement, in the great haste of defendant to overreach plaintiff, was made in her room, where she was confined to her bed in a helpless condition, even before she was permitted to have her breakfast, on the morning of June 30, 1890. Defendant's officers and servants then represented to her falsely that all other persons who had been injured in said wreck had settled with defendant, and she alone was the remaining one that had not been settled with, and induced the plaintiff to believe that there was no legal obligation upon the part of the defendant to pay her anything, and studiously avoided informing her of her rights or her true condition, as was their duty to her while in the custody and care of defendant, as she was at the time; all of which was for the purpose of overreaching and defrauding this plaintiff out of her just demands against said corporation. Wherefore the plaintiff prays that said pretended settlement be disregarded, and for naught held, and that she may have judgment as prayed in her petition, and for all proper relief."
The passages from the testimony of plaintiff, referred to in the opinion, are the following:
"Q. What doctor came to see you? A. Dr. Rockwood and the two doctors Callaway and Wilson. Q. Dr. Callaway and Dr. Wilson
represented the railroad company? A. Yes, sir. * * * Q. When you first came there, did Dr. Rockwood tell you that he had orders from the railroad company to provide for you and take care of you until you were able to leave? A. Some one told me he was to take charge of us. Q. For the railroad company? A. Yes, sir. * * * Q. Now, on Monday morning, what time did you eat breakfast? A. Between eight and nine o'clock some time, I think. I don't remember just the time. Q. Between eight and nine o'clock? A. Yes, sir. Q. How long had you been to breakfast before Dr. Rockwood and Dr. Rogers came up to see you? A. About half an hour, I think. Q. They came up about half an hour after you had been to breakfast? A. Yes, sir. Q. Have you read over your testimony taken at the last trial of this case? A. No, sir. Q. Have you seen it? A. No, sir. Q. Will you state to the jury what took place when Dr. Rockwood and Dr. Rogers first came in your room on Monday after you had been to breakfast? A. Well, they came in the room, and Dr. Rockwood introduced Dr. Rogers as claim physician, and as he walked around the bed he said, `He is also a doctor.' And they sat down, and Dr. Rogers examined me, and I think Dr. Rockwood did too. Q. What kind of an examination did Dr. Rogers make? A. He only examined my chest. He didn't examine my limb. Q. How did he come to examine your chest? Did you tell him that it was hurting you? A. No, sir; Dr. Rockwood told him about my injuries; how I was injured. Q. Did he tell him in your presence? A. I think he had told him before they came there. Q. Did you hear him tell him? A. I heard him say something about it. Q. You heard him describe how you were injured, — that you were injured in the chest? A. Yes, sir. Q. And that you had spit up blood? A. Yes, sir. Q. And that your leg was hurt? A. Yes, sir. Q. And he then examined your chest? A. Yes, sir. Q. How did he examine it? A. He listened to it — put his ear down. Q. That is the only examination he made? A. Yes, sir. Q. He didn't undertake to prescribe? A. No, sir. Q. He put his ear down to see what he could hear? A. Yes, sir. Q. That is all he did? A. Yes, sir. Q. Did he make an examination of your limb? A. No, sir. Q. Did Dr. Rockwood make an examination in the presence of Dr. Rogers? A. I think he examined my lungs, too. Q. He put his ear down? A. Yes, sir. Q. Was there any other examination made of your body at that time? A. No, sir. Q. Is that all that took place in regard to an examination of your person on Monday? A. Yes, sir. Q. You say that when Dr. Rogers first came in he was introduced by Dr. Rockwood as claim physician of the Missouri Pacific Railway Company? A. Yes, sir. Q. Might he not have been introduced as claim agent, and also stated that he was a doctor? A. No, sir. Q. You are certain about that? A. Yes, sir. Q. Might you not be mistaken about the language that he used? A. No, sir. Q. Were you listening? A. Yes, sir. Q. Don't you think it possible that you might be mistaken? A. No, sir. Q. Well, then, what occurred after that — after Dr. Rogers and Dr. Rockwood put their ears down, and listened to your chest? Then what conversation followed? A. I don't remember just what was said next. Q. Didn't Dr. Rockwood state to you that he (Rogers) was claim agent of the Mo. Pac. Ry. Co., and that he had come down to settle with yourself and other persons who were injured in the wreck? A. I don't remember whether Dr. Rockwood did or not. Q. Did Dr. Rogers say so? A. He said something about it. Q. You understood that he...
