Southwest Pump & Machinery Co. v. Jones

• Citation: 87 F.2d 879
• Decision Date: 18 February 1937
• Docket Number: No. 10622.,10622.
• Parties: SOUTHWEST PUMP & MACHINERY CO. et al. v. JONES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

87 F.2d 879 (1937)

SOUTHWEST PUMP & MACHINERY CO. et al. v. JONES.

No. 10622.

Circuit Court of Appeals, Eighth Circuit.

February 18, 1937.

Paul Barnett, of Kansas City, Mo. (I. N. Watson, Henry N. Ess, and Carl E. Enggas, all of Kansas City, Mo., on the brief), for appellants.

W. F. Woodruff, of Kansas City, Mo. (Spencer A. Gard, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, THOMAS, and FARIS, Circuit Judges.

GARDNER, Circuit Judge.

This action was instituted by appellee as an action at law to recover damages on account of personal injuries alleged to have been suffered by her as the result of an automobile accident. The parties will be designated as they appeared below.

Plaintiff alleged specific injuries, some of which constituted permanent scarrings and disfigurements; alleged a displacement of the left sacroiliac joint and an exostosis on the left side of the sacrum, rendering her lame. The answer, among other things, pleaded a settlement and a release of damages executed by plaintiff for the consideration of $250, for which she released and discharged defendant from "all my claims and causes of action I now have or hereafter may have on account of injuries sustained, etc." Plaintiff, by way of reply, alleged, among other things, that this release had been executed by her at a time when she did not know of the extent of her serious and permanent injuries and at a time when she and the representative of the defendants believed that her injuries were temporary, and that both she and the defendants were mistaken and misinformed as to the extent and character of her injuries. The facts as to which it was alleged there was a mutual mistake were (1) that plaintiff had no injuries save cuts, multiple bruises, and muscular strain, whereas there were numerous pieces of glass remaining in her face and head which it required surgery thereafter to remove, and (2) that she suffered no serious injury of a permanent nature, whereas she suffered a displacement of a sacroiliac joint. Plaintiff then asked that the release be canceled and set aside, she having, prior to the commencement of the action, tendered and offered to repay the consideration received by her, which tender she renewed in her pleadings. The equitable issue thus raised was thereupon set down for hearing on the equity side of the docket and resulted in a decree in favor of plaintiff, canceling the release. From the decree so entered, defendants prosecute this appeal.

No question is raised as to the regularity or propriety of the proceeding of the court in transferring this issue to the equity side of the docket and disposing of it in advance of the trial of the other issues.

The court found on the evidence produced, practically all of which was oral testimony, that, "Before the release sought to be set aside was signed, plaintiff had been examined and was under treatment by her own physician, Dr. Henry J. McKenna; had been examined by Dr. S. E. Haynes, a physician engaged by defendants' insurance carrier, both of whom had the benefit of X-ray examination of plaintiff's face and head made at St. Mary's hospital. Neither the examination of Dr. McKenna or Dr. Haynes or the X-ray examination at the hospital disclosed the fact that one very large piece of glass and numerous smaller pieces of glass remained in plaintiff's temple, nor did the examinations disclose the sprain or displacement of the sacro-iliac joint, which conditions were unknown to the plaintiff and unknown to Mr. M. D. Campbell, Jr., the insurance adjuster, at the time the release was signed."

The court also found that, "The unknown facts that the glass remained in plaintiff's temple; and that she had a sacro-iliac displacement were material facts affecting the character and extent of plaintiff's injuries and bearing on the settlement for her injuries; and these unknown facts were not in contemplation of the parties at the time of the settlement and at the time the release sought to be set aside was signed."

The judge, in his opinion, made a part of his findings, said: "It is obvious that the parties acted upon what they believed to be the facts as they existed at the time. They were both mistaken about them. The testimony was clear and convincing both that the settlement was made with the thought that there was no glass in plaintiff's body and that the wounds suffered in the accident would heal in regular course. The evidence was clear and undisputed that many pieces of glass were in fact in plaintiff's face and head at the time. Under such circumstances, she would be entitled to have the release cancelled."

The chief contention of defendant on this appeal is that the findings of the court were not sustained by substantial evidence, or at least that the evidence was not so clear, cogent, or convincing as to warrant the court in finding that the release was induced by the mutual mistake of the parties. The findings of the trial court on issues of fact are presumptively correct, and will not ordinarily be disturbed, except for obvious error in the application of the law or serious mistake in the consideration of the proof, and this is particularly true where the evidence upon which the findings are based was oral testimony. Lion Oil Refining Co. v. Albritton (C.C.A.8) 21 F.(2d) 280; Drake v. Thompson (C.C.A. 8) 14 F.(2d) 933; Karn v. Andresen (C. C.A.8) 60 F.(2d) 427; United States v. Grass Creek Oil & Gas Co. (C.C.A.8) 236 F. 481; United States v. United Shoe Machinery Co., 247 U.S. 32, 38 S.Ct. 473, 62 L.Ed. 968; Butte & S. Copper Co. v. Clark-Montana Realty Co., 249 U.S. 12, 39 S.Ct. 231, 63 L.Ed. 447.

It appears from the evidence that plaintiff was injured while riding in an automobile...