Chi., R I. & P. Ry. Co. v. Burke

• Decision Date: 30 July 1918
• Docket Number: Case Number: 9253
• Citation: 73 Okla. 258,1918 OK 419,175 P. 547
• Parties: CHICAGO, R I. & P. RY. CO. v. BURKE.
• Court: Oklahoma Supreme Court

1918 OK 419

175 P. 547

73 Okla. 258

CHICAGO, R I. & P. RY. CO. v. BURKE.

Case Number: 9253

Supreme Court of Oklahoma

Decided: July 30, 1918

Syllabus

¶0 1. Release--False Representation--Rescission.

The settlement and release of a cause of action brought about by false representation of material facts on the part of a surgeon, the servant of the defendant, upon which plaintiff relied as to the injuries received by plaintiff, notwithstanding the falsity of said representation was unknown to the surgeon making it, may be rescinded and avoided, although there was no fraud or other wrongful intent to deceive or defraud.

2. Same.

Plaintiff was injured while employed as a brakeman on one of defendant's trains. Soon thereafter defendant's physician, who treated plaintiff, made a physical examination of plaintiff's person, represented to plaintiff that his injuries were not permanent, which information was communicated by the surgeon to the claim agent of the defendant making the settlement, prior to the making thereof, and afterward it developed that said injuries were permanent. Held, that such representations were material, and plaintiff had a right to rely thereon in effecting a settlement with defendant, and since the representations were untrue in fact, although the falsity was not known to the physician at the time they were made and were not made with intent to deceive, plaintiff had a right to rescind the settlement; such fact constituting fraud in law.

3. Same--Cause of Action--Defense.

Such settlement and release of cause of action, brought about by false representation of material fact upon which plaintiff relied, cannot be successfully set up as a defense to the action.

Error from District Court, Seminole County; J. W. Bolen, Judge.

Action by J. E. Burke against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Affirmed.

C. O. Blake, R. J. Roberts, W. H. Moore, and J. W. Willmott, for plaintiff in error.

Ledbetter, Stuart & Bell and Cobb & Cobb, for defendant in error.

COLLIER, C.

¶1 In this action the defendant in error seeks recovery of $ 40,000 damages from the plaintiff in error for personal injuries suffered by him. Hereinafter the parties will be styled as they were in the trial court. The defendant answered and set up that consideration of the sum of $ 2,500 paid to the plaintiff by the defendant had compromised said claim and released and forever discharged the defendant from any and all liability for all claims, for all injuries including those that may hereafter develop, as well as those apparent, and attached to said answer, as an exhibit, copy of said written release in settlement, which is as follows:

"Whereas, I, J. E. Burke of the county of Pottawatomie, state of Oklahoma, was injured at or near Shawnee, Oklahoma, on or about the 1st day of October 1913, on a line of railway owned or operated by the Chicago, Rock Island & Pacific Railway Company, while employed as a switchman at Shawnee, Oklahoma, at which time I injured my left knee, and again on January 30, 1914, I was injured at Shawnee, Oklahoma, while employed as a switchman, at which time I injured my right knee or leg under circumstances which I claim rendered such company liable in damages, although such liability is denied by such railway company, and the undersigned, being desirous to compromise, adjust and settle the entire matter:

"Now, therefore, for the sole and only consideration of the sum of two thousand five hundred dollars ($ 2,500.00) to me this day paid by the Chicago, Rock Island & Pacific Railway Company, in behalf of itself and other companies whose lines are owned or operated by it, I do hereby compromise said claim and do release and forever discharge the said the Chicago, Rock Island & Pacific Railway Company, and all companies whose lines are leased or operated by it, their agents and employes, from any and all liability for all claims for all injuries, including those that may hereafter develop, as well as those apparent, and also do release and discharge them of all suits, actions, causes of actions and claims (15) for injuries and damages, which I have or might have arising out of the injuries above referred to, either to my person or property, and do hereby acknowledge full satisfaction of all such liability and causes of action.

"I further represent and covenant that at the time of receiving said payment and signing and sealing this release I am of lawful age and legally competent to execute it, and that before signing and sealing it I have fully informed myself of its contents and executed it with full knowledge thereof.

"I further represent that I have read the above release and that I fully understand the terms thereof.

"Given under my hand and seal this 26th day of February, A. D. 1915.

"[Signed] J. E. Burke.

"Paid by draft No. 35634, drawn by Chas. Hardcastle. State of Oklahoma, Pottawatomie County.

"I, Verna Whitesell, a notary public in and for said county and state, hereby certify that I have read the above and foregoing release to J. E. Burke and he states that he fully understands the same and that the facts therein contained are true. Witness my hand this February 26, 1915.

"[Signed] Verna Whitesell, N. P."

¶2 The plaintiff, "by reply, alleges that the said release and settlement were obtained by false and fraudulent representation made to him by the doctors and claim agents of defendant, to the effect that he would soon be well and that injuries were not permanent, and that he relied upon said representation and made settlement relying on the same; that injuries were really permanent; that said representations were untrue, and that the plaintiff tendered back to the defendant the $ 2,500 received in settlement and asked that said release be held null and void."

¶3 It is argued in brief of defendant "that this appeal presents but one question, and that is that there was no evidence of fraud in procuring the release executed by the plaintiff," and consequently it is unnecessary to recite any of the evidence given in the case other than the evidence bearing upon said release.

¶4 The evidence is that the plaintiff made a settlement with Mr. Morrison, the general claim agent, and Mr. Copley, the general superintendent, and that Mr. Morrison and Mr. Copley stated that a history of the case from Chicago showed that Dr. Porter claimed there was no permanent injury.

¶5 We quote from testimony of Mr. Burke on this line as follows:

"A. When I assured them that Dr. Porter had assured me that I would fully recover from this injury, they said in words to that effect that the communication showed that too; that they did not talk to them personally about it, but the communication showed that. Q. Now, Mr. Burke, after you made the settlement, after you signed up with Mr. Hardcastle over at Shawnee, tell the jury what you next did? A. I did not sign up at El Reno. I went over to Shawnee, and Mr. Morrison and Mr. Copley were quite busy, and it was agreed they would send those papers over to Shawnee for me to sign; that I signed the release."

¶6 Dr. Porter, who was the surgeon and servant of the defendant, and who treated the plaintiff, testified there was nothing in the joint to cause permanent injury; that the leg was going to be all right and would fully recover. Dr. Byrum testified by deposition as follows, as to whether or not the injury left a permanent defect:

"Q. State whether or not in your judgment, Doctor, from your examination of the leg, the injury to the leg is permanent. A. I don't know how to answer that question; I don't want to give anything which is hypothetical. The dislocation and removal of semilunar cartilages will leave permanent defects in the knee. Q. What is your judgment as to whether that leg will ever be as good as new, or as good as it was before the injury? A. A knee with semilunar cartilages misplaced and removed, the ligaments lacerated, tenderness with the accompanying inflammation, will leave a knee with its function permanently impaired. However, the inflammation may subside, nature replace the cartilage with new tissues, these tissues never completely fulfill the functions of the original."

¶7 Plaintiff further testified that Dr. Porter said it was the injury and that he thought the semilunar cartilage was injured or thrown out of place; that he operated upon the plaintiff about the 8th day of August; they made an incision from here to here, an incision of 2 1/2 inches on the inside of the knee, from the kneecap to the back part of the knee; that the puncture he received on his left knee occurred right in the joint on the inside of the knee; that it has never gotten so that it is as good as it was before this injury; that it pops when it is thrown out; that upon working the left and right knees he could tell that there was not the same lubrication in the knee injured as in the other knee; that he knew this by grating and grinding and more of a mechanical move; that he has to force the move in this left limb and the other comes natural and gradual; that nerves from here down have been severed in the leg; that in the last six months, or in the last year, there has not been any improvement in his leg; that, if anything, it seems to be getting worse; that he has given it treatment and went to Hot Springs and just recently returned, and has given it massage and treatment thoroughly; that since receiving the injury he has been able to work about one-half the time; and that he is not able to perform his duties of a brakeman. Plaintiff further testified that Mr. Redding, the division superintendent, shortly after he had made settlement and signed the release, came over to Shawnee and stated to plaintiff, "You are incapacitated for yard service," and at that time plaintiff turned to him and said, "You got the release through fraud," and that when he made the settlement he relied upon Dr. Porter's statement,...