Alabama & V. Ry. Co. v. Turnbull

Citation71 Miss. 1029,16 So. 346
PartiesALABAMA & VICKSBURG RAILWAY CO. v. HENRY TURNBULL
Decision Date02 April 1894
CourtMississippi Supreme Court

FROM the circuit court of the first district of Hinds county. HON J. B. CHRISMAN, Judge.

Action by appellee, Henry Turnbull, against the Alabama & Vicksburg Railway Company, to recover ten thousand dollars damages for personal injuries. At the time of the injury plaintiff was a laborer in the employ of a compress company, and was engaged about his duties in trucking cotton on the platform of said company, and within its inclosure. A spur track of defendant's railroad enters the compress building, and was used for placing cars within the same, convenient for loading and unloading. On the day in question, according to plaintiff's testimony, a train of cars was either negligently pushed or kicked or allowed to roll on said track without any warning, and plaintiff, who was on the track adjusting a gangplank between the platforms, was caught by the cars and very severely crushed. As the opinion has no reference to the circumstances attending the injury, it is unnecessary to further state the facts as to this.

Defendant pleaded a release of damages by the plaintiff, and to the plea plaintiff filed replications, which, as stated in the opinion, raised the question of its validity, plaintiff contending that it was obtained through fraud and undue influence. The testimony in behalf of plaintiff throwing light on this question, which is held to be decisive of the cause as presented on this appeal, tended to show the following facts: When injured, plaintiff was found to have been caught between the gangplank and the backing cars, and his stomach was crushed into the space of four or five inches. He was taken up from the track in an unconscious condition, and the superintendent of the compress at once telephoned for Drs Wirt Johnston, a physician, who came in response to the call, and, on his advice, plaintiff was taken home, and thereafter said physician continued to attend him no arrangement or any mention having been made as to who was responsible for his fees. Plaintiff was very badly hurt, but grew better, and after a few days Dr. Johnston told him that he had mentioned to the agent of the railroad company that it ought to pay him something on account of his injuries, as he was a poor colored man without means and having a wife and family to support, that the agent had sent him to offer twenty-five dollars. To this plaintiff replied, that he would not consider twenty-five dollars, and that he had not consulted with any one on the subject, not even his wife. To this the doctor replied that it was immaterial to him, that he was acting merely out of kindness to plaintiff because he was a poor colored man. Further conversation was had, during which the doctor sought to get him to agree to compromise and during which plaintiff stated that he had no idea that the company would start with an offer less than one hundred dollars. A few days later, Dr. Johnston and E. L. Stevenson claim agent of the defendant, went together to plaintiff'S home, and found him sitting up, but complaining of feeling somewhat worse. After inquiring as to his health, the agent expressed pleasant surprise at his improved condition, and told him he had come to settle with him for his damages; that he was prepared to give him seventy-five dollars. Turnbull stated that he was not ready to make a settlement, and that he had so told Dr. Johnston to which the agent replied that it would save a great deal of trouble, and that if he sued he would get nothing, that the lawyer would get it all. He told Turnbull that he had only brought seventy-five dollars, and after some time asked Dr. Johnston if he had any money, and borrowed from him twenty-five dollars, and threw it into plaintiff's lap. Turnbull persisted in his refusal to accept it, saying that the doctor had been coming every day, that he was not nearly well, and that by the time he finished paying the doctor and other expenses there would be nothing left. The latter them told him that he had nothing to do with the doctor's bill, as the compress would settle it. Turnbull said no, that if he got any thing out of the railroad, he would have to get all from it. Then Stevenson proposed that he would give Turnbull one hundred dollars, and that Dr. Johnston should look to him for all the other bills. Turnbull again referred to his not being well yet, and Dr. Johnston told him he would be as well as ever in the course of three or four weeks, and able again to labor at the compress. Stevenson then said: "I don't know what to think of a man who will have a doctor who gets him up and he don't have any confidence in him;" and Dr. Johnston remarked, "I told you coming out here that he wanted a lawsuit." The conversation was continued about twenty minutes or half an hour, and finally Turnbull accepted the one hundred dollars, and signed, by his mark, a release, previously prepared by Stevenson, by which he relinquished all claim for damages consequent on the injury. His signature, a mark, was witnessed by his wife and by Dr. Johnston.

The foregoing is substantially the testimony of plaintiff and of his wife as to what was said and done in reference to the settlement before and at the time the release was signed. In some important particulars they are contradicted by the testimony of Dr. Johnston and of Stevenson, who agree in testifying that the settlement was freely and voluntarily made by Turnbull. It was shown that Dr. Johnston was the regularly retained local surgeon of the defendant company at Jackson; that he was not paid a salary, but paid under an agreed fee-bill for cases attended. His duties were to attend to cases of persons injured by the company whenever called on by the superintendent; to report injuries and receive instructions as to whether he should take charge of them. But sometimes he attended cases in an emergency without waiting for instructions. In this case he had no instructions from the superintendent, and, when called to wait on Turnbull, opened an account on his books against the compress company. However, while attending to the case, and before the release was given, he heard from the company that it was perhaps liable, and after that supposed it would pay his bill, but did not feel authorized to make out a bill against the railroad company until the same was definitely assumed by Stevenson for the company at the time of the settlement. Dr. Johnston admitted undertaking the negotiation for a compromise, but says he did so on his own responsibility, and, also, that neither he nor Stevenson ever mentioned the fact that he was surgeon of the railroad company, his own reason being that he deemed the fact immaterial. He denied loaning Stevenson the money to make out one hundred dollars paid plaintiff, and denied that any unfair advantage or any misrepresentations were made to Turnbull, and also denied that he assured him that he would shortly be well. Dr. Johnston says that Turnbull had authorized him to offer to the company to accept one hundred dollars, and had named that amount as what he would agree to take. He admitted that he urged plaintiff to accept the one hundred dollars, and, when he refused, told him he had thought he was a man of his word.

The testimony of Stevenson, who was an attorney, and the claim agent of defendant, and who was a witness on the first trial, corroborated that of Dr. Johnston in most particulars. He stated, however, that in his negotiations and conversations with Dr. Johnston he considered him as acting in the capacity of the company's surgeon, who had been called in by the compress company to attend plaintiff; that Dr. Johnston had never before aided him in effecting a settlement, but the surgeons of the company were expected to keep the interest of the company at heart; that when he came from his home in Vicksburg to make the settlement, he considered that it had all been arranged and agreed on, and took the doctor to the home of plaintiff merely to show him the way.

After executing the release, plaintiff grew worse, and, after some months, was furnished by defendant with a pass to New Orleans, to enable him to go to the charity hospital in that city, where he remained a short time, without obtaining relief, and returned to Jackson. About ten months after the accident, having been confined at home a great part of the time because of the injury, he took advice of attorneys as to his rights, and then, for the first time, was made aware that Dr. Johnston, when he attended him and promoted the compromise, was the retained surgeon of the railroad company. On their advice, he at once tendered back the one hundred dollars, the amount...

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