Baumann v. Hutchinson

• Decision Date: 09 December 1932
• Docket Number: 28142
• Citation: 245 N.W. 596,124 Neb. 188
• Parties: ADAM BAUMANN, APPELLEE, v. AMOS T. HUTCHINSON, APPELLANT
• Court: Nebraska Supreme Court

245 N.W. 596

124 Neb. 188

ADAM BAUMANN, APPELLEE, v. AMOS T. HUTCHINSON, APPELLANT

No. 28142

Supreme Court of Nebraska

December 9, 1932

APPEAL from the district court for Madison county: CHARLES H STEWART, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The record discloses that the verdict is supported by the evidence.

2. The operator of a motor vehicle, in backing the same onto a public alley, must look backward, not only before he begins his operation, but while he is in the act of backing, and must give a signal of his intention to back, in order that he may not collide with or injure those lawfully using such alley.

3. Release of a claim for personal injuries may be avoided if it is executed in reliance on misrepresentations as to the nature or extent of the injuries, amounting to fraud, on the part of releasee, or his agent.

4. Where a releasee, or his agent, communicates to the releasor the professional opinion of releasor's physician, it is the duty of the releasee, or his agent, to repeat the opinion with entire correctness.

5. If the one responsible for a personal injury, or his agent falsely represents to the injured person what a physician or surgeon thinks or has said about his injuries, it is a fraud which may justify the rescission of a release, executed in reliance upon such false statement.

6. " When the amount received in settlement is grossly inadequate to compensate for the injuries sustained, that fact may be considered, with other evidence, as tending to show unfair practice, that the party has been overreached, and that the minds of the parties never met in the consummation of a valid contract." Perry v. Omaha Electric Light & Power Co., 99 Neb. 730, 157 N.W. 921.

7. It is not error for the court to refuse defendant's request for additional instructions, where it has, on its own motion, fully and fairly instructed the jury on defendant's theory of the case. Blado v. Draper, 89 Neb. 787, 132 N.W. 410.

8. The court is not required to state the whole of the law applicable to the case in a single instruction. It is sufficient if the charge, as a whole, fully and fairly instructs the jury with reference to all the issues in the case.

Appeal from District Court, Madison County; Stewart, Judge.

Action by Adam Baumann against Amos T. Hutchinson and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

Rosewater, Mecham, Burton, Hasselquist & Chew, for appellant.

Lawrence W. Rice and E. T. Hayes, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

GOOD, J.

This is a personal injury action in which plaintiff recovered judgment, and defendant has appealed.

The errors relied on for reversal are that the evidence is insufficient to sustain the verdict, and the giving and refusing of instructions to the jury. The record reflects the following facts:

Plaintiff was thrown from a ladder and received the injuries of which he complains. He was standing on the ladder, washing a second-story window of a business building in the city of Norfolk. The building abutted on the south side of a paved public alley, 16 feet in width. The ladder was placed in the alley, the upper end against, and the lower end about four feet from, the building. The alley extends east and west, and on the north side thereof, opposite the building on which plaintiff was working, was another business building, known as the Killian building. The west part of the Killian building abutted on the north side of the alley; the eastern part of the building lacked about 25 feet of reaching to the alley.

At about 9:30 a. m., on May 23, 1930, defendant, whose automobile had been parked in the rear of the east part of the Killian building, got into his car and backed it southwesterly into the alley and against the ladder on which plaintiff was working, knocking the ladder down and precipitating plaintiff to the pavement. Plaintiff sustained a fracture of the radius of the right arm; a fracture of the os calcis bone of the left foot, and also a fracture of the tubercle of the astragalus bone in the same foot. He also received injuries to his back which at the time were not believed by his physician to be serious. The evidence on behalf of plaintiff tends to prove that some months later it was discovered that he had sustained a compressed fracture of the twelfth dorsal vertebra, and a fracture of the processes of the first lumber vertebra. The evidence on behalf of defendant respecting the injuries to the vertebrae conflicts sharply with that on behalf of plaintiff.

Immediately after the injuries plaintiff was removed to a hospital in Norfolk, where he was put under an anaesthetic, and the then-known fractured bones were set, a splint being placed on the right arm and a cast on the left foot and leg. Morphine was also administered to him hypodermically, but the precise time when it was administered is not disclosed. On the following day defendant, together with the local agent and adjuster, respectively, of defendant's insurance carrier, called upon plaintiff at the hospital and discussed with him a settlement for his injuries and the damages sustained thereby. At the time of this conversation plaintiff was not represented by counsel, or by any relative or friend of the family. Near the close of the conversation, plaintiff's wife and children came into his room at the hospital. Very little was said after she entered. Apparently there was a statement made that the three men were going to see plaintiff's surgeon. This they did, and they had a conference with the surgeon, who exhibited to them the X-ray pictures, taken the day before, of the injured parts of plaintiff's body. Some of these had been taken before and some after the fractures were reduced. The surgeon also informed the three men of the nature of the then known injuries, and that plaintiff would probably be disabled for a year or more. About an hour later they returned to the hospital, at which time the plaintiff's wife and children had departed, and took up with plaintiff the question of a settlement of any claim which he might have for his injuries. They informed him that the doctor's bill would be about $ 200 and the hospital bill about $ 20, and that they were willing to give plaintiff $ 400, as a settlement of any claim he might have. Thereupon releases were drawn and presented to plaintiff for his signature. He was then lying in a hospital bed, with his right hand in a splint and his left foot and ankle in a cast. They requested his signature, and he informed them that he could not write because of his injured right hand. It was suggested that he could put his thumb print upon the releases which would answer for his signature. Thereupon an ink pad was procured; his left thumb was inked, and the releases were placed on a paper or magazine and held for him while he placed his thumb thereon.

The evidence on behalf of defendant is to the effect that plaintiff voluntarily placed his thumb upon the ink pad and also voluntarily placed it upon the releases. Evidence on behalf of plaintiff tends to show that he had to have assistance in putting his thumb upon the pad, and that he was assisted in putting his thumb print upon the releases. Evidence on behalf of plaintiff tends to show that defendant and the insurance adjuster and agent did not fully and correctly inform the plaintiff with respect to his injuries and give to him the full information which they had received from plaintiff's doctor, but made it appear that his injuries were much less, and that his disability would be of much shorter duration than as told them by the doctor. The evidence on behalf of plaintiff tends to prove that at the time of the first conversation and the second conversation, an hour later when the releases were supposedly executed, plaintiff did not desire to talk and appeared to be somewhat dull or stupid; whether from the effect of the shock or the morphine, or a combination of them, is not fully disclosed. After the thumb prints were placed upon the releases, a check for $ 400 was given to plaintiff. Plaintiff never cashed or indorsed the check, and later he took the check to the office of the local agent, and gave it to him, telling him that he was not satisfied with the settlement. Two days later this suit was begun, and three or four days later the agent returned the check to plaintiff in a registered letter, and it remained in his possession until the trial of this cause in the district court, when it was tendered back to defendant.

In Vandervert v. Robey, 118 Neb. 395, 225 N.W. 36, it was held: "Backing out from private property onto a public highway is an operation demanding a high degree of...