Cogswell v. Boston & M. R. R.

• Decision Date: 03 April 1917
• Citation: Cogswell v. Boston & M. R. R., 101 A. 145, 78 N.H. 379 (N.H. 1917)
• Parties: COGSWELL v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

101 A. 145

78 N.H. 379

COGSWELL

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

April 3, 1917.

Exceptions from Superior Court, Merrimack County.

Bill by Edward N. Cogswell, executor of Josiah W. Emery, deceased, against the Boston & Maine Railroad.On exceptions by plaintiff and defendant to the orders of the judge.Plaintiff's exceptions overruled, and bill dismissed.

Bill in equity in aid of an action at law.The plaintiff brought action against the defendants, claiming the death of his testator, Josiah W. Emery, was occasioned by the defendants' negligence.The defendants pleaded the general issue, with a brief statement setting up a release, under seal, of all claims against the defendants in consequence of the accident and injury referred to in the plaintiff's declaration and executed by the plaintiff's testator, December 26, 1913.Thereupon the plaintiff brought this bill to have the release set aside upon the ground that it was executed upon a mutual mistake as to the identity, character, and extent of the injuries which had been received by Emery, and in entire ignorance of the principal injuries which resulted in his death and on account of which the action was brought.The defendants answered, denying the allegations of the bill.The plaintiff then claimed in an amendment to the bill that the release executed by Emery before his death was not a bar to the suit brought by his executor, claiming damages for the death resulting from the injury.The cause was heard upon the pleadings by Branch, J., who found the following facts: December 24, 1913, Josiah W. Emery was struck upon a grade crossing by the defendants' motor section car, and thrown out of the sleigh in which he was riding.The only injury of which he complained was a lame shoulder, side, and back.He drove home; and then drove to Henniker village, a mile and a half, for liniment and alcohol, which his wife applied for several days.There was a large black and blue spot below his right shoulder and a small one in the small of his back above his right hip.The deceased did his farm work as usual the day of the accident and the following day.On December 28th, as he was driving to Henniker, he met the claim agent of the railroad, who drove with him to the railroad station, and on the way talked about a settlement.The only claim of personal injury then made by Emery was a little lameness of the shoulder.Twenty-five dollars was agreed upon to settle the claim for both personal and property damage.A release was drawn up, which was read by Mr. Emery, was read over to him, and was fully understood by him.There was no fraud.

Some time in January, Mr. Emery began to be troubled with shortness of breath.About the middle of February, he gave up all work, and died March 1, 1914.February 16th he first consulted a doctor, who thought him afflicted with Bright's disease, a diagnosis which was subsequently confirmed.The plaintiff claimed that Bright's disease resulted from the injury.From the medical testimony the court found that Emery's death was caused by chronic Bright's disease, which he must have had for a considerable time before the accident, and that the accident could in no way be regarded as the cause of the disease, but the effect of the fall was to accelerate the course of the disease and to hasten death.

Neither Emery nor the claim agent had knowledge of Emery's bodily condition, which rendered the results of the accident more serious to him than they might otherwise have been.The claim agent, for the purpose of avoiding litigation, intended to settle once and for all every claim which Emery had or might have in the future growing out of this accident.The release so stated, and it was so understood by Mr. Emery.The railroad intended to buy its peace.

The court ruled that these facts present a case where a contract was fairly entered into by both parties, and where the terms of the contract were themselves fair, in view of the facts which the parties knew at the time, but a case where both parties contracted in ignorance of an important fact which, if known, would have materially altered the terms of the agreement, and found that this is not a case where the parties"negotiated upon a mutual understanding that it was doubtful who was to blame for the accident and what the plaintiff's injuries might turn out to be," and where "both parties intended to take the risk of loss as it might thereafter appear," but that it is rather a case where without reference to the question of liability the amount paid depended upon, and was intended "In some degree to be commensurate with, existing injuries," and made the following orders: (1) That the prayer of amended bill be denied as matter of law, and the plaintiff excepted.(2) That the release be set aside upon the ground that it was executed by reason of a mutual mistake of fact, and the defendants excepted.Tine defendants also excepted to the denial at their motion for the dismissal of the bill made at the close of all the evidence, and to the findings as to the character of the case upon the ground that they were unsupported by the evidence and were inconsistent with prior special findings.

Joseph S. Matthews and Martin & Howe, all of Concord, for plaintiff.Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

PARSONS, C. J.The plaintiff's testator, Emery, was thrown from his sleigh December 24, 1913, by a collision with the defendants' motor section car upon a highway grade crossing of the defendants' road.He died March 1, 1914.The plaintiff brought suit against the defendants, claiming the death was caused by the collision, which was alleged to have been due to the defendants' negligence.In answer, the defendants pleaded a release under seal executed two days after the accident.This purported to be a release and discharge of all causes of action arising out of the accident.Thereupon the plaintiff, in accordance with the procedure suggested in Mclsaac v. McMurray, 77 N. H. 466, 93 Atl. 115, L. R. A. 1916B, 769, brought this bill to set the release aside.

The bill alleges that the injuries which resulted in Emery's death were unknown to both parties when the settlement evidenced by the release was made, and that the contract of settlement then agreed upon was only intended as compensation for the damage to Emery's sleigh, and the only personal injury of which Emery then complained, "a little lameness in the shoulder."The allegations are sufficient to authorize a decree for the plaintiff within the rules laid down in Mclsaac v. McMurray, in which the subject of reformation or rescission for mistake is fully considered.It was there pointed out that a release under seal was the written evidence of a contract made by the parties, and that if by mistake in a material matter the documentary evidence failed to state accurately the intention of the parties—i. e., the contract—equity had power in a proper case to give relief.In that case, which was also a suit for personal damages caused by negligence, it was claimed that the real contract between the parties was not for the settlement of all controversy between them in reference to the defendants' liability for the plaintiff's injuries, but was merely to give the plaintiff compensation for certain known injuries, and that at that time plaintiff had received a serious injury, a broken hip, of which injury both parties were in ignorance at the time of the contract of settlement.It was held that these facts, if so proved as to overcome the weight of the written document as evidence, would authorize the rescinding of the release so far as it was in conflict with the contract of the parties.

The mistake claimed being mutual ignorance at the time of the contract of the serious injury to the plaintiff's hip, it was said:

"Upon these facts, the question arises whether the mistake related to a matter that was material to the contract of settlement.The fact that the parties were justiliably ignorant of the serious injury to the plaintiff's hip does not alone show that the mistake was in respect to a material matter.Whether it was or not depends upon the intention of the parties in making the contract.If their purpose was to terminate all dispute and litigation between them in reference to the defendant's liability for negligence in causing the plaintiff's...