Atchison v. Missouri Pac. R. Co.
| Decision Date | 11 January 1932 |
| Docket Number | 17,352 |
| Citation | 46 S.W.2d 230 |
| Parties | Fred Atchison, Respondent v. Missouri Pacific Railroad Company, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Pettis County Circuit Court.
Opinion by Campbell, Commissioner. Boyer C., concurs. All concur.
Plaintiff, while working for the defendant as a section laborer, sustained personal injuries. He brought this action to recover damages therefor, had judgment, and the defendant has appealed.
The sufficiency of the petition is not questioned. Neither does the defendant question the sufficiency of the evidence to sustain the allegations of the petition.
The reply is a general denial and a plea that the cause of action stated in the petition was compromised and settled before the institution of the suit, and that plaintiff executed a written release to the defendant by the terms of which the defendant was released and discharged from all claims and demands resulting from the injuries mentioned in the petition.
The sufficiency of the answer is not questioned.
In the reply plaintiff pleaded that the release was obtained by fraud. The sufficiency of the plea in that respect is not challenged.
The assignments of error are: (1) That the court erred in refusing to give defendant's instruction in the nature of a demurrer, (2) in giving plaintiff's instructions numbers 1, 2, 3 and 4, and (3) in failing to properly reprimand plaintiff's counsel for improper and prejudicial argument to the jury.
The first assignment of error challenges the sufficiency of the evidence to show that the release was obtained by fraud.
If there was any substantial evidence, though slight, tending to show that plaintiff was induced by false representations upon which he relied, to sign the release, it was incumbent on the court to submit the issue to the jury. Knapp v Hanley, 108 Mo.App. 353, 83 S.W. 1005.
Plaintiff testified that he sustained injuries which rendered him unconscious; that thereupon defendant employed a doctor to treat him; that shortly thereafter defendant sent him to a hospital in Kansas City, thence to a hospital in St. Louis that four or five days later he returned to his home and went to see the "company doctor," Dr. Postum, who thereafter dressed the wound on his head six or eight times; that after talking with defendant's superintendent he again went to see the doctor. "I say 'Doctor, I want to know about my conditions; I want to know whether I am all right or not?'" He says "Why sure, you are all right, make your settlement and go back to work;" that he relied upon that statement; that "I knew I didn't feel all right * * * I thought I would be all right;" that thereafter defendant's claim agent came to see him and "told me he had talked to the doctor (Postum), and the doctor told him I was all right;" that thereupon he signed the release and received the sum of $ 60; that in a few days thereafter he returned to work. "Worked possibly a week and a half or two weeks * * * then I was laid off."
There was evidence that plaintiff's injuries were severe and that he was suffering from them at the time of the trial.
Dr. Postum testified that he had not examined plaintiff "except I dressed his head;" that he did not say anything to plaintiff about his physical condition.
If Dr. Postum made the statement attributed to him, plaintiff had the legal right to rely thereon.
The claim agent testified that he did not say anything to plaintiff about his physical condition nor did he say that Dr. Postum had told him that plaintiff "was all right;" that "I never had seen the doctor."
The jury could believe all the testimony of the claim agent or none of it, or accept it in part and reject it in part. Under the rule stated the jury...
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