Barrett v. Lewiston, B. & B. St. Ry. Co.

• Decision Date: 21 December 1912
• Citation: 110 Me. 24,85 A. 306
• Parties: BARRETT v. LEWISTON, B. & B. ST. RY. CO.
• Court: Maine Supreme Court

85 A. 306

110 Me. 24

BARRETT

v. LEWISTON, B. & B. ST. RY. CO.

Supreme Judicial Court of Maine.

Dec. 21, 1912.

On Motion and Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

Action by John W. Barrett against the Lewiston, Brunswick & Bath Street Railway Company. Verdict for plaintiff, and defendant excepts, and moves for a new trial. Motion for a new trial sustained.

See, also, 80 Atl. 1130.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, and HALEY, JJ.

Oakes, Pulsifer & Ludden, of Auburn, for plaintiff.

Newell & Skelton, of Lewiston, for defendant.

SAVAGE, J. Case for negligence. The plaintiff was a passenger on one of the defendant's cars, and was injured in some way. The manner is not described in the case, for the defendant admitted at the trial that it was originally liable. The plaintiff sustained a compound comminuted fracture of the bones of the right leg, near the ankle. The accident occurred in Topsham, October 11, 1906. The plaintiff was taken at first to the office of Dr. Palmer, in Brunswick, and from there to St. Mary's Hospital, in Lewiston; Dr. Palmer accompanying him. On November 21, 1906, his leg was amputated below the knee, and later it became necessary to amputate it above the knee. He remained in the hospital 141 days. On October 27th, 16 days after the accident, the defendant's superintendent paid him, on account of the company, $500, and agreed to pay all his hospital and surgical expenses, and the plaintiff, in turn, by a general release, released the defendant from all claims and demands. The defendant relies upon that settlement as a complete defense. To this the plaintiff replies that the settlement was fraudulently obtained, and not binding. The case has been tried twice before; each trial resulting in a verdict for the plaintiff. At those trials the question of fraud was eliminated by the court, and the only question submitted to the jury was the mental competency of the plaintiff to make the settlement, at the time he made it. Those verdicts were set aside, one after the other, by the law court. It appeared clearly to the court that the plaintiff was mentally competent to make the settlement, that he well understood at the time what he was doing, and fully appreciated the effect of the settlement.

At the third trial, the presiding justice was of opinion that the evidence on the question of competency was no more favorable to the plaintiff than it had been at the other trials, and instructed the jury, in effect, that they would not be authorized to find a verdict for the plaintiff on the ground that he was mentally incompetent to make the settlement, but that, if they found certain facts to be true, they would be authorized to find that the settlement was fraudulently procured; and the jury so found. The case comes up on the defendant's exceptions to the instructions of the presiding justice on the question of fraud, and on a motion for a new trial.

To understand the instructions, and the contentions of the plaintiff, it is necessary to state other facts. Two or three days after the accident Dr. Palmer was employed by Mr. Farr, the defendant's superintendent, to visit the plaintiff at the Lewiston Hospital. He was directed, so he says, to "see that everything is done to save that man's leg." He says Farr told him to look out for him until he got out. He visited him at intervals, generally of three or four days, as long as he stayed in the hospital, and particularly, as relates to this case, October 14th, 18th, 22d, and 26th. The plaintiff did not know that Dr. Palmer was employed by the defendant. He had not himself employed him. It does not appear that he gave the matter any thought. The plaintiff testified that Dr. Palmer at one time told him that he thought the leg would be saved, but he was unable to fix the time the statement was made. Binette, a hospital nurse, testified that Dr. Palmer told the plaintiff every time that he was going to save his leg. Dr. Palmer testified that he never told the plaintiff that he would save his leg, but he says he had some hope of saving it; but on cross-examination he said that at one of the first two or three visits he might have told him that "he hoped to save the leg." He also said that he reminded him that Dr. Russell, the surgeon in charge of the hospital, told him at the start that he "thought the leg would have to come off." He further testified that on October 26th, the last time he saw him before the settlement, he thought there was "some chance of saving the leg," and that he talked with him that day about the leg, and the plaintiff said, in connection with some talk about a settlement, that he was "going to have the money and keep the leg." Binette testified that the plaintiff asked him several times if the leg could be saved, and that he told him "No." Dr. Russell testified that he advised amputation at the first, and that, although he talked with him about it, he never gave the plaintiff any encouragement that the leg could be saved. It appears that the plaintiff and Farr agreed upon the terms of settlement in a room in the hospital to which the plaintiff had been removed for that purpose, and that no one else was present; but nothing was said by either as to the prospects of saving the leg. But before the release was executed, Dr. Russell was called in by Farr, and the terms of settlement were stated to him. Dr. Russell testified that he read the release to the plaintiff, and explained to him that he would not get any more money, even if the leg had to be amputated. This is all the testimony that bears on the probabilities, on October 27th, of saving the leg, or on the plaintiff's expectations.

Upon the evidence in the case, we think the jury would have been warranted in finding that Farr's purpose in employing Dr. Palmer was not alone to secure his professional services in the treatment of the case, but that he might be of some assistance either in making a settlement, or, failing that, in litigation which might ensue on the question of damages, which in itself was not an unlawful purpose. It does not appear, and should not be inferred, that Dr. Palmer was asked to say anything to the plaintiff about a settlement. Nor does the case warrant the inference that, if Dr. Palmer encouraged the plaintiff to think that the leg could or might be saved, he did so for the fraudulent purpose of inducing him to settle for a less sum than he would otherwise have insisted upon.

But Farr asked him to let him know if the plaintiff wanted to see him, or said anything about a settlement. On October 20th, as the doctor testified, the plaintiff said he thought "it would be better to effect a settlement with the road, and not be bothering with lawyers," that he would like to talk with somebody about it, and that he said he did "not want to see any of his folks" about it. Dr. Palmer communicated the fact of this conversation, and, we think it fair to assume, the substance of it, also, to Farr, who had been called to the hospital that day by Dr. Russell to see the leg dressed. He also advised Farr that the plaintiff was in a suitable condition physically to make a settlement. An arrangement was made for Farr to see the plaintiff...