Bass v. Seaboard Air Line R. Co.

• Decision Date: 12 May 1949
• Docket Number: 16629.
• Parties: BASS v. SEABOARD AIR LINE R. CO.
• Court: Georgia Supreme Court

53 S.E.2d 895

205 Ga. 458

BASS v. SEABOARD AIR LINE R. CO.

No. 16629.

Supreme Court of Georgia

May 12, 1949

Rehearing Denied June 16, 1949.

Syllabus by the Court.

1. If one innocently, by mistake, misrepresents to another a fact which is material, and in which the other confides, it is fraud in law, and a release executed by such other party to the first, in reliance upon such misrepresentation, may be set aside in equity.

(a) Ordinarily an injured party has a right to rely upon the statements of the attending physician of the releasee as to the nature and seriousness of his injury.

(b) The rule as to misrepresentations, though innocently made constituting fraud in law where confided in, does not apply 'where the fact affirmed is of such a nature that the other party has no right to place reliance on it, and it was his own folly to give credence to it, for courts of equity will not aid parties who will not use their own sense and discretion. This exception contemplates a case where both parties have equal opportunities and means of knowing the truth of the statement, and where, in the very nature of the transaction, it is unreasonable to believe that a sensible man would act upon the statement of the other side, and where, if he does, he must be considered as reposing a confidence not necessary, and not expected, and without ordinary sense and discretion.'

2. The allegations of count two of the petition as amended were sufficient to authorize a jury to find that the petitioner's injuries, sustained by him while performing his duties as a switchman, in attempting, as directed by his foreman, to mount and stop a string of three cars which had been separated from other cars and an engine and were moving under their own momentum, were caused in part by the violation by the defendant railroad of the Federal Safety Appliance Act, 45 U.S. C.A. § 11, in using cars with defective hand brakes, which, failing to function when the petitioner sought to apply them in the usual, customary, and ordinary manner on two of the cars, prompted and required him in the emergency thus created to dismount to the ground, by using handholds and grab irons on one of the cars, in order to stop the cars by mounting the third car and using the hand brakes thereon, with the result that the petitioner, in attempting to avoid a switch stand on the ground as he dismounted was forced to suddenly wheel, and thereby injured and damaged his back in described particulars. The allegations were sufficient to state a cause of action against the defendant, and the court erred in sustaining its general demurrer.

R. L Bass filed in the Superior Court of Fulton County, Georgia, a petition against Seabord Air Line Railroad Company in two counts. In count 1 as amended it was sought to recover $60,000 damages on account of injuries sustained to his back at the lumbar region, on February 18, 1947, while engaged in the performance of his duties as a switchman in its yards at Hamlet, North Carolina, the suit being brought under the Federal Employers' Liability Act, 45 U.S. C.A. § 51, and alleging a violation of the Federal Safety Appliance Act, 45 U.S. C.A. & 11. The petition also sought in this count to set aside a certain release from liability which had been executed to the defendant, and as to which the petition as amended alleged as follows: Immediately following the petitioner's injuries as described in the petition, he was sent to the Hamlet Hospital in North Carolina, where he was given an opiate of some kind to relieve his pain and directed to come back the next day for X-rays and examination by the company's physician, Dr. W. D. James Jr. He returned to the hospital the following day as directed, and after examination by the physician aforesaid was informed by him that there was not much the matter with him and that a few heat treatments would put him right and to return to his home. Thereafter the petitioner was given heat treatments by the said physician, and eight days thereafter, on or about February 27, 1947, he advised the petitioner that he was able to return to work, that his injuries were not serious or permanent, and advised the petitioner that he was cured of his injuries and hurts aforesaid; telling him at the time that he had essentially recovered, and that he had only to exercise himself to get the pain and stiffness out of his hurts. The petitioner being unskilled and unschooled in the art of medicine and surgery, thought at the said time that his injuries were neither serious nor permanent, and accordingly believed that the injured parts of his body would all become usable and that the pain would subside upon exercise, and he thereupon returned to work on February 27, 1947, although still suffering great pain; the said physician advising him that he would by following his employment, overcome the said pain. On that date the said physician advised him that he would call the defendant's claim agent, Mr. Vuncannon, and tell him that the petitioner was o. k. for work and for the petitioner to report to Mr. Vuncannon and go ahead and mark up for duty. At that time the said physician advised the petitioner that he could safely settle his difficulties with the defendant upon the basis of no permanent injuries; and accordingly, on or about February 27, 1947, in that belief the petitioner executed a written release to the defendant, covering all of his injuries received on the said occasion, for an amount which the petitioner now believes to be $97, the exact amount of which he does not at this time know, and the exact wording of which he does not remember, but of which the defendant is well apprised, the release being in its possession. Before executing the said release the petitioner was further assured by the defendant, through its agent, servant and employee, Vuncannon, its claim agent, who told him at that time that he had no permanent injuries of any kind, he said Vuncannon stated to the petitioner at that time that he had been advised by the defendant's physician, Dr. W. D. James Jr., that the petitioner was then cured and ready to return to his employment. The said Vuncannon, on behalf of the defendant at the said time, paid to the petitioner the sum of money aforesaid. The said official, agent and employee of the defendant, Vuncannon, and the said physician, James, were laboring under a mutual mistake as to the seriousness and permanency of the petitioner's injuries, and because of the said mutual mistake the said release, accord and satisfaction, was signed and entered into by the parties as aforesaid. It now transpires that the petitioner's injuries are serious, permanent, and incapacitating, and the small amount of money paid by the defendant through its agent Vuncannon to the petitioner was grossly disproportionate to his injuries and was so should not be allowed to stand in view of all the circumstances herein related, and the release is null and void and of no effect for the said reason. After signing the said release, the petitioner returned to his work as a switchman in the defendant's yards. Thereafter, on or about April 16, 1947, the petitioner went back to see Dr. James, who informed him that he did not know anything more to do, but suggested that the petitioner see a chiropractor. Thereafter on or about August 1, 1947, the petitioner again called on the defendant's claim agent, Mr. Vuncannon, and told him that on account of his condition something had to be done for him immediately. The said claim agent made arrangements for the petitioner to go to the Charlotte Memorial Hospital and on November 26, 1947, he was admitted therein, at the instance of the defendant, for treatments. On or about November 26, 1947, the defendant had its physician and surgeon, Dr. Rapp, make an examination of him and thereafter treat him in the said hospital at Charlotte, North Carolina. The said physician applied a plaster jacket to the petitioner's back, and on December 13, 1947, the petitioner was discharged from the said hospital but continued to wear the said plaster jacket. He was advised by the said Dr. Rapp not to try to work for quite a while. The petitioner went back for check-ups every thirty days to the said hospital, and on April 15, 1948, the defendant's surgeon, Dr. Rapp, informed the petitioner that he could go back to his job and start work. On or about May 1, 1948, the petitioner returned to work for the defendant at its yard aforesaid and worked until the morning of July 5, 1948. During said time the petitioner performed his usual duties as switchman as aforesaid, the said work being the same kind of work he was performing prior to his injuries. On or about July 7, 1948, approximately seventeen months after signing the said release, the petitioner learned for the first time his true condition, namely, that he had received a permanent injury to his back as aforesaid, when Dr. Rapp, the defendant's surgeon, after examination, advised the petitioner that he could never do the same kind of work again and could not return to work. Thereafter, on or about July 12, 1948, and before the filing of this suit, the petitioner tendered to the defendant the sum of $125 in lawful money of the United States to cover the amount paid to him by the defendant's agent, Vuncannon, claim agent in charge of the office of the defendant through which the said settlement was effected when the release was signed as aforesaid, and demanded the return of the release which tender and demand were refused. The petitioner stands ready and willing to return the said sum paid to him by the defendant as aforesaid at any time the defendant will accept the same.

The prayers were: (a) that the said release be set aside on the ground of mutual mistake and on the ground of...