Barnard v. Cedar Rapids City Cab Co., 51555

CourtUnited States State Supreme Court of Iowa
Citation257 Iowa 734,133 N.W.2d 884
PartiesFlora BARNARD, Appellee, v. CEDAR RAPIDS CITY CAB CO., Jack L. Cupp, John F. Schloeman and Myrna Schloeman, Appellants.
Docket NumberNo. 51555,51555
Decision Date09 March 1965

Page 884

133 N.W.2d 884
257 Iowa 734
Flora BARNARD, Appellee,
CEDAR RAPIDS CITY CAB CO., Jack L. Cupp, John F. Schloeman and Myrna Schloeman, Appellants.
No. 51555.
Supreme Court of Iowa.
March 9, 1965.
Rehearing Denied May 4, 1965.

[257 Iowa 739]

Page 889

Tom Riley, of Simmons, Perrine, Albright, Ellwood & Neff, Cedar Rapids, for appellants Cedar Rapids City Cab Co. and Jack L. Cupp.

Wayne C. Collins, of Shuttleworth & Ingersoll, Cedar Rapids, for appellants John F. Schloeman and Myrna Schloeman.

David M. Elderkin, of Barnes, Wadsworth, Elderkin, Locher & Pirnie, and Fred Fisher, of Fisher & Yarowsky, Cedar Rapids, for appellee.

THORNTON, Justice.

Plaintiff's action is for injuries received in an intersection collision between the cab of defendant City Cab Co., driven by defendant Cupp, in which she was a passenger, and the car driven by defendant John Schloeman and owned by him and his wife, defendant Myrna Schloeman. The collision occurred at the intersection of 3rd St. and 8th Ave. in Cedar Rapids on December 20, 1961. Traffic at the intersection wad controlled by automatic signal lights. The cab approached the intersection from the south, the Schloeman car from the west. The light was red for Schloeman, green for the cab. From the testimony the jury could find both drivers were negligent. Defendants pleaded a release given by plaintiff to the Schloemans for $100 in bar, plaintiff, by way of reply, pleaded the release was executed as the result of a mutual mistake of fact as to the nature and extent of her injuries. This issue, together with the issues of negligence and damages, was submitted to the jury. A verdict was returned for plaintiff for $17,500. From the judgment entered thereon both defendants appeal. Both defendants urge the question of mutual mistake as to the release should not have been submitted to the jury. Each of them separately urges errors in the reception

Page 890

and rejection of evidence and in the instructions.

I. The release issue is common to both defendants, as is a related question of evidence. They will be considered first. Also the propriety of the instructions on this issue and the refusal of the trial court to submit interrogatories requested by defendants Schloemans bearing on the release issue.

At the time of the collision plaintiff was thrown from her seat in the cab, her head struck a handle on the side of the cab, she became nauseated at the scene and was taken by another cab to the hospital. There plaintiff was X-rayed. She was examined by her doctor, Dr. Barthel, at his office. He gave her a sedative and headache pills and sent her home. When she got home, Mr. Lyons, an adjuster representing Schloeman's insurance carrier, called on her. She gave him a statement of the accident and her condition. Plaintiff next saw the adjuster on January 16, 1962, when she and her husband signed a release running to Mr. Schloeman for $100. The release provides:

[257 Iowa 741] 'For The Sole Consideration of One Hundred and no/100 Dollars, the receipt and sufficiency whereof is hereby acknowledged the undersigned hereby releases and forever discharges John Scholeman * * * who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 20th day of December, 1961, at or near Cedar Rapids, Iowa.

'Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.'

Our cases have long held a contract may be set aside for a mutual mistake of a material fact and a release is no different than any other contract. In the following cases we have held or recognized a release for personal injuries may be set aside where the release was given and taken under a mutual mistake as to the nature and extent of the releasor's injuries. Reed v. Harvey, 253 Iowa 10, 110 N.W.2d 442; Wieland v. Cedar Rapids and Iowa City Railway Company, 242 Iowa 583, 46 N.W.2d 916; Jordan v. Brady Transfer & Storage Company, 226 Iowa 137, 284 N.W. 73; Pahl v. Tri-City Railway Company, 190 Iowa 1364, 181 N.W. 670; Malloy v. Chicago, Great Western Railroad Company, 185 Iowa 346, 170 N.W. 481; Seymour v. Chicago & Northwestern Railway Company, 181 Iowa 218, 164 N.W. 352; Reddington v. Blue & Raftery, 168 Iowa 34, 149 N.W. 933; and citations in each. See also Annotation, 71 A.L.R.2d 82; Sloan v. Standard Oil Co., 177 Ohio St. 149, 203 N.E.2d 237; Cole v. Lumbermens Mutual Casualty Company, La.App., 160 So.2d 785; Smith v. Broscheid, 46 Ill.App.2d 117, 196 N.E.2d 380; Collier v. Walls, 51 Tenn.App.[257 Iowa 742] 467, 369 S.W.2d 747; Evans v. S. J. Grovers & Sons Company, 315 F.2d 335 (2nd Cir.1963); Warren v. Crockett, 211 Tenn. 173, 364 S.W.2d 352; and Hall v. Strom Construction Company, 368 Mich. 253, 118 N.W.2d 281.

Our question here is, is there sufficient substantial evidence to warrant submitting the question of mutual mistake to the jury?

Plaintiff's position is there was a mutual mistake as to the nature and extent of her injuries in that she and the adjuster at the time she gave the release thought that she had only received a bump on the head causing a headache which would shortly disappear,

Page 891

when in fact she had received a permanent injury, a 'whip-lash' injury to the occipital nerves on both sides of her head. She returned to her doctor about four weeks after the release was signed. The neurosurgeon testified his final diagnosis was 'greater occipital neuralgia.' On March 17, 1962, to correct this condition a three-hour operation was performed on plaintiff, between the nape and mid-portion of her neck, for which surgical and hospital expenses of $1,371.81 were incurred.

Plaintiff's evidence is, she was X-rayed at the hospital, checked by her doctor, returned home, she was questioned by the adjuster on the day of the accident. She later called her doctor and was assured the X-ray was negative. When the adjuster called on her January 16, 1962, she was still suffering from headaches but thought they were due to the bump on her head. The bump was still tender. She thought the headaches would go away. She did not know she had received an injury to the occipital nerves and was permanently injured. She stated she would not have signed a release for $100 if she had known of her true condition. The adjuster, called by the plaintiff, testified he investigated the accident, took statements from most, if not all, of those involved including Mr. Schloeman and plaintiff, and he obtained a medical report from plaintiff's doctor on a form furnished by his company. This report showed, under description of the nature and extent of injury, 'Contusion of left side of head and low back.' Under surgical procedure or treatment, 'Examined--X-rays ordered--dismissed.' To the question, 'Is further treatment necessary?' the answer was, 'not expected.' [257 Iowa 743] To the question, 'Do you anticipate a complete recovery?' the answer is, 'yes.' X-ray findings were, 'Negative for fracture.' The adjuster acted on this report by contacting plaintiff the evening of the day he received it. The adjuster's testimony is clear he was not aware plaintiff had sustained an injury to the occipital nerves, that her injury was permanent or she would require surgery and future hospitalization. From the statement he took from plaintiff he knew she did not consider her injury to be permanent. From the statements in the adjuster's file it was clear the defendant Schloeman had run the red light and plaintiff was a rear-seat passenger in the cab. He testified on cross-examination Mr. Schloeman told him that he, Schloeman, did not really slide through the light but made a quick decision to go through after the light changed hoping to get out of the way. Also that he took into consideration the nature and extent of plaintiff's injuries in making the settlement. Both plaintiff and the adjuster testified they discussed plaintiff's hospital and doctor bills, her lost time, her apparent injuries, and her torn overshoes and hose. The amounts of these items total $71.30. Neither of them state the difference between $71.30 and the $100 paid for the release was for pain and suffering to the date of the release. Plaintiff did state the $100 was to cover all expenses whatever she had. The adjuster on direct examination in answer to a question as to what he based the $100 on, refers to X-ray and hospital bills, cab fare and 'one or two other small items,' and, 'Consequently, this does not predicate so much of a settlement regardless of whether you are figuring whether your man is wrong or whether you are simply figuring on a bunch of other factors and attempting to buy your peace. These factors definitely entered into my thinking on this particular occasion. The rest of it was for the inconvenience she may have suffered, and, of course, to obtain a settlement of this case.'

In the course of a rather extended answer on cross-examination he stated, 'we felt under the circumstances the settlement was fair,' and he was sure the Barnards did too, 'there was no reason for them not to under the circumstances,' On redirect the adjuster was asked whether he would consider such a settlement fair if he had known at the time plaintiff had a [257 Iowa 744] stretched or crushed greater occipital nerve on each side of her...

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