Broad v. Kelly's Olympian Co.

• Citation: 156 Or. 216,66 P.2d 485
• Parties: BROAD v. KELLY'S OLYMPIAN CO. [*]
• Decision Date: 30 March 1937
• Court: Supreme Court of Oregon

66 P.2d 485

156 Or. 216

BROAD v. KELLY'S OLYMPIAN CO. ^[*]

Supreme Court of Oregon

March 30, 1937

Department No. 1.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by Eugene Broad against the Kelly's Olympian Company for damages in the sum of $10,000 for personal injuries received when plaintiff was an employee of the defendant. From an order of the circuit court which granted the plaintiff a new trial after the court had entered a judgment based on a directed verdict in favor of the defendant, the defendant appeals.

Reversed.

Louis A. Recken, of Portland (Senn & Recken, of Portland, on the brief), for appellant.

Harry G. Hoy, of Portland (Hoy & Doxey, Wm. P. Lord, T. Walter Gillard, and Arthur E. Prag, all of Portland, on the brief) for respondent.

ROSSMAN Justice.

The appeal presents two assignments of error which are based upon the following contentions: (a) The record contains no evidence that plaintiff's signature to the release, which he admitted signing, was obtained through fraud; and (b) the record indicates that the plaintiff assumed the risk of the condition which resulted in his alleged injury. We shall now consider the first contention.

The defendant operates an establishment in Portland where the plaintiff, a former boxer, 62 years of age, who referred to himself as "Kid Broad," was employed as night janitor. May 23, 1933, while he was discharging his duties he mounted a 10-foot ladder, and when it gave way he fell to the floor. The nature and extent of his injury was the subject of dispute at the trial. He stressed especially an injury to his right arm; apparently his other injuries were minor.

The complaint describes the injuries thus: "Severe injuries to his spine, sacrum, right hand and right wrist, right leg near the ankle, and the right foot and heel, and plaintiff was severely bruised and contused about various parts of his body and head, and suffered severe nervous shock, and plaintiff was thereby caused to suffer severe pain and suffering." As a witness, the plaintiff swore that after the accident, "my hand seemed to be hanging down and I couldn't move it, I couldn't do nothing with it. *** I was in pretty bad shape *** and my arm was hanging down." While he was thus testifying, his counsel stated "The evidence will show that he has had both bones of the arm near the wrist broken. ***" The trial judge then inquired, "In this injury?" and received the reply "I don't know, but that is a question for the jury." He then asked, "Doesn't he know whether it happened in this accident?" and plaintiff's counsel replied, "No, he knows this, Your Honor, and I wanted to say I was going to show by this witness that he never before had had an injury to his arm, to his knowledge, there above the wrist, and that he never had his arm in a cast or in a sling before this time *** I think the jury will have a right from that evidence to infer that his break near the wrist occurred at that accident. ***" At this point the plaintiff called as a witness Dr. Alan Welch Smith who first saw the plaintiff two days before the trial, which was almost three years after the accident. As a result of his examination by X-ray, he found that the plaintiff "had an old fracture, an old, probably unreduced fracture of his radius and ulna." He swore that any discomfort or disability that the plaintiff was experiencing in his right arm and hand was "brought about, in my opinion, by this old fracture." The witness swore, "That is an old break," but declined to estimate how long ago it had occurred until he was shown an X-ray photograph of the plaintiff's arm, taken 13 days after the accident, and was asked, "Isn't it a fact that break occurred more than a year before the picture was taken?" He replied, "Yes. It would have to be sufficiently long to have that bony tissue become solid." To the inquiry, "Would you say that it would be at least a year before that was taken?" he replied, "Yes." After Dr. Smith had left the witness stand, the plaintiff was recalled and the following occurred:

"Q. Now, Mr. Broad, at any time prior to the time you had this fall on the 23rd day of May, 1933, did you ever have an injury to your right forearm near the wrist? A. No.

"Q. Was your arm ever bandaged there before? A. No. ***

"Q. You want this jury to understand that prior to this time you had never had your arm broken? A. I am saying yes, that I never had it broken.

"Q. Never had it in a cast before? A. No, sir, never had a cast on me body at no time.

"Q. Never had a doctor for this right arm before? A. No, the only cast I ever had on me body was me nose."

He claimed that he was still experiencing a disability in his right arm and attributed it to the fall in defendant's establishment. He swore that Dr. Carl J. Hollingsworth, his physician, "told me the hand was broken" in the fall, and stated positively that Dr. Hollingsworth did not tell him that the X-ray plates showed an old break.

The plaintiff swore that in September, 1933, he suffered what he termed "a relapse," which caused him to be confined for nine weeks in Good Samaritan Hospital, Portland, and, finally, to resort to the use of crutches. He testified that Dr. W. E. Gregson attended him upon that occasion, and described the treatment which was then given him thus: "They put both my legs and both my arms in a cast and they gave me dope and I blew up like a balloon."

Sometime after the plaintiff's fall from the ladder, he decided to see whether he could obtain compensation for his injury, and called upon Alfred P. Kelley, a capable member of the Oregon bar, for the purpose of securing Kelley's professional skill in pressing his claim. After a conference, the two called upon one J. F. Gill, adjuster for the insurance company which had written a policy of casualty insurance in defendant's favor. They asked for $300 as satisfaction of the claim, which Gill refused to pay. Later the plaintiff returned to Kelley's office. Kelley then told him that his only alternative was litigation, but when the plaintiff replied that he was unable to advance the costs, Kelley suggested, according to the latter's uncontradicted testimony, "I don't know, but under all the circumstances here it seems to me as though perhaps you could work out a settlement with those people just as well by yourself as you could be represented by counsel, and my suggestion to you is that if you wish to go ahead and work out a settlement with them, don't feel obligated to me. I am perfectly willing to release you without any charge for the services I have performed, and, not having to pay me for any services, you perhaps can work out a more moderate settlement with them and not have to give any of that money to me, and in the long run you will be better off." That ended the relation between the two men. Later the plaintiff returned "three or four times," according to his estimate, to Gill's office and, finally, on July 20, 1933, signed a document entitled "Release." At the time he signed this paper he was given a check of $99.84 which he cashed. Gill stated that this sum represented eight weeks' compensation, computed upon the tables of the State Industrial Accident Commission. The uncontradicted testimony of Gill indicates that his insurance company also paid the plaintiff's medical bills amounting to $40.50, as it had agreed to do when the release was signed. The latter, which is upon a single sheet of letter-size paper, is typewritten and states: "I, Eugene Broad, for the sole consideration of $ One hundred Forty and 34/100 to me in hand paid by Kelly's Olympian and/or The Metropolitan Casualty Insurance Co., the receipt whereof is hereby acknowledged, have released and discharged *** said Kelly's Olympian" by reason of the injury of May 23, 1933.

The plaintiff now claims that the release was fraudulently obtained. His pleading avers that he and Gill had agreed at the time the release was signed that ten weeks' compensation was then due to the plaintiff and "that further compensation checks would be issued to this plaintiff as time went on and during his disability." The pleading avers that the plaintiff was unable to read the document because he had no spectacles, and that Gill described it to him as "simply a formality required by the headquarters 'in Frisco' and a receipt for compensation for a certain time (eight weeks to plaintiff's present belief and recollection) which was all that he was at that time able to obtain from his company" for the plaintiff. The pleading avers that the plaintiff signed the document believing that it was merely a receipt for eight weeks' compensation and that he also believed that payment of compensation would continue until his complete recovery.

The plaintiff did not call Dr. Hollingsworth as a witness. He claimed that the latter was in the employ of "the insurance company." As a witness for the defendant, Dr Hollingsworth swore: "I am the doctor for the cooks' local here in Portland, the cooks' and helpers' local, and whenever any of their members are ill or injured I am called upon to see them, and in that capacity I was called to see Mr. Broad the day following his injury." He denied that he had ever been employed by the defendant or the Metropolitan Casualty Insurance Company. After the injury, Dr. Hollingsworth took the plaintiff to the Good Samaritan Hospital for the purpose of having X-ray pictures taken of his right arm. Dr. Hollingsworth swore that after the photograph had been taken, "My diagnosis was that the man had sustained numerous bruises and a laceration on the right shin, but that there were no broken bones." He declared that the picture showed a fracture of bones of the right arm which must have occurred at least ...