Bjorklund v. Seattle Elec. Co.

• Decision Date: 21 July 1904
• Citation: 77 P. 727,35 Wash. 439
• Parties: BJORKLUND v. SEATTLE ELECTRIC CO.
• Court: Washington Supreme Court

77 P. 727

35 Wash. 439

BJORKLUND v. SEATTLE ELECTRIC CO.

Supreme Court of Washington

July 21, 1904

Appeal from Superior Court, King County; Geo. C. Hatch, Judge.

Action by John Bjorklund against the Seattle Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hughes, McMicken, Dovell & Ramsey, for appellant.

Geo. F Aust and G. Meade Emory, for respondent.

HADLEY J.

This is an action for damages for personal injuries received by respondent while traveling as a passenger upon one of appellant's cars. Respondent was at the time, and for several years prior thereto had been, an employé of appellant, engaged in rendering services about the car barn of the railway company; but when he received his injuries he was a passenger on his way to his home, after completing a day's work, and he says he had paid his fare, as the other passengers had done. The question of what of original liability is not urged upon this appeal, but it is contended that respondent had, prior to bringing the action, for a consideration, fully released appellant from all claims for damages. In reply to the answer setting up the release respondent alleged: That, by reason of his long employment by appellant, he had a great confidence in the company's agents, physician, and representatives. That he understands very imperfectly the English language, and can, with great difficulty, only read the simplest English words and phrases. That at the time of signing the alleged release he did not obtain legal advice, and was entirely ignorant of his legal rights and of the extent of his injury. That appellant, well knowing the above facts, did, by its agents, to wit, its superintendent, claim agent, and physician, with the intent and purpose of intensifying respondent's ignorance as to his legal rights and physical condition, falsely and fraudulently represent to him that it was inadvisable for him to consult a lawyer; that his injuries were such that, without doubt, he would be entirely well within six weeks' time, at most, and that he was even then able to return to work; that appellant was willing to pay him his wages until he was able to return to work, and was also anxious to have him continue in its service; that it would give him a good, easy job, soon raise his wages, and give him ample opportunity for promotion. That appellant's claim agent and superintendent then informed him that, in order to carry out said arrangement for him to draw his wages and get an easy job, it was necessary for him to sign a writing, which was then for the first time produced. That respondent could not read it, and that said claim agent then pretended to read it to him, but that he could not understand its meaning, and the claim agent knew he could not understand it. That he then told the claim agent that he could not understand it. That the claim agent thereupon told him that the only purpose of the paper was to have respondent go to work again for appellant; to give him a good, easy job, with promise of promotion and raise of wages and to enable him to draw his wages for the time he had been off duty. That appellant, its agent, servants, and physician, well knew of respondent's ignorance of his rights, and of the extent of his injuries. That he was relying upon their representations, and that, but for such false representations, he would not have signed any paper--a release or otherwise. That he was ignorant of the fact that he was signing any purported release for injuries of any extent or duration contrary to said representations or any purported representations whatever, and that he never intended to release appellant. That the aforesaid promises made by appellant's agents have not been carried out. That respondent did not recover from his injuries within six weeks, had not yet recovered, is now unable to work by reason thereof, and is informed and believes that his injuries are of a permanent nature, and that he will always remain crippled and deformed. A trial was had before the court and a jury, and a verdict was returned for respondent in the sum of $2,500. Motion for new trial having been denied, judgment was entered upon the verdict, and the defendant has appealed.

It is assigned that the court erred in overruling appellant's challenge to the legal sufficiency of the evidence. Respondent was injured in a 'head-on' collision between two of appellant's cars, and his hand was severely cut, and his thigh was struck in such a manner as to cause a bad bruise to the muscles and to the bone, accompanied with subacute inflammation of the periosteum. Such was shown to be his condition by a letter in the record, written by the company's surgeon. This letter was written January 23, 1903, a short time before this suit was begun. The injury occurred April 23, 1901, near two years prior to the writing of this letter. In the course of the testimony of the doctor upon the witness stand, he said that he, as the company's surgeon, examined respondent's injuries soon after they were received, and that he then told respondent that he thought he would be well in a short time. It is easy for us to believe, from a personal standpoint, that the doctor was originally simply mistaken in his judgment; but, in view of the fact that his letter stated that 'there was a bad bruise to the muscles and to the bone,' and in view of his entire testimony upon the stand, we think it became a question for the jury whether the doctor as surgeon of the company knew at the time that respondent was seriously injured. He admits that he did not so inform respondent. If he knew the fact, and if his failure to so inform respondent misled the latter, to his injury, it amounted to a legal fraud upon his rights. Appellant suggested that respondent had no right to rely upon the physician's statement, and that it is not bound thereby. We think, the relation of employer and employé having long existed between appellant and respondent, the latter had the right to place trust and confidence in the statements of the company's surgeon, who had examined the injuries at the instance of the company. It therefore became a question for the jury, even if they found that respondent knowingly signed a release, whether he did so as the result of being fraudulently misled by appellant's agents as to the extent and character of his injuries.

The testimony of respondent as to what occurred at the time of the signing of the alleged release is in substantial accord with the allegations of the reply hereinbefore set out. The chief negotiations leading up to the signing of the paper aside from the statements of the physician heretofore discussed, were between the claim agent and respondent. The sum of $70 was paid by the claim agent to respondent at the time the paper was signed. That was the amount of wages, at respondent's rate, for the time he had been unable to work; and he says he was informed by the claim agent and that he understood that he was simply signing a receipt for the wages, so that he could go to work again, and get his easy job. The paper signed contained a release provision. It was prepared upon a printed blank, and contained technical words, both in the printed and written matter, and bore evidence of careful and skillful preparation, with a view to making it an effective release. In view of respondent's testimony as to his inability to read and understand English, and particularly such technical words and phrases as were contained in this paper, it became a question for the jury whether he did understand it, and whether the claim agent had intentionally and fraudulently misrepresented to him what it contained, and thereby purposely misled him into signing what he would not have signed if its actual contents and legal effect had been fully made known to him. The jury could reasonably find, under the evidence, that appellant and respondent did not stand upon an equal footing, by reason of the latter's imperfect understanding of English, and the legal effect of what he signed, or the nature and extent of his injuries, while the agents of the former were fully informed. They could also reasonably find that respondent was justified in placing confidence in what appellant's agents told him, because of his...