Collins v. Hughes & Riddle
| Decision Date | 01 April 1938 |
| Docket Number | 30132 |
| Citation | 278 N.W. 888,134 Neb. 380 |
| Parties | HENRY S. COLLINS, APPELLEE, v. HUGHES & RIDDLE ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. A " caret" is a definite character of the English language clearly defined and established by immemorial usage.
2. " Where a written instrument shows upon its face a material and obvious alteration, the presumption of law is that such alteration was made before the instrument was finally executed and delivered." Dorsey v. Conrad, 49 Neb. 443, 68 N.W. 645.
3. " Such an instrument may go in evidence in the first instance, leaving the parties to such explanation of the alteration as they may choose to offer." Dorsey v. Conrad, supra.
4. " The value of testimony where the witness refuses to testify positively to the facts, is for the jury to determine, and will vary with the surrounding circumstances and the manner and appearance of the witness." 14 Encyclopedia of Evidence, 142.
5. In the instant case, as there was presented evidence of the facts surrounding and attending the actual execution of the release in controversy, the presumption that the alterations appearing on the instrument were made before its execution was removed, and the question as to how, or when, or with what motive the alterations were made and the five typewritten words inserted was for the triers of fact to determine under all of the evidence.
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. Where parties fairly and honestly intend to and do settle their controversy for known injuries received, but there are injuries wholly unknown to the parties, of a serious character, which are not taken into consideration, a release given in settlement of the injuries, although purporting to be a release of all damages that may thereafter accrue, will be set aside, on the ground of mutual mistake, as inequitable, unjust, and not complying with the intention of the parties.
8. 12 C.J. 356.
9. A verdict so clearly excessive as to induce the belief on the part of the reviewing court that it must have been found through passion, prejudice, mistake, or some means not apparent in the record, will be set aside and a new trial awarded.
Appeal from District Court, Douglas County; Sears, Judge.
Action by Henry Collins against Hughes & Riddle and others, to recover for injuries sustained in an automobile collision. From a judgment for plaintiff, defendants appeal, and plaintiff cross-appeals.
Reversed and remanded.
Gaines, McLaughlin & Gaines and Harold A. Palmer, for appellants.
McGan & Burbridge, contra.
Heard before GOSS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ., and ELDRED, District Judge.
This is an action at law to recover damages for personal injuries received by plaintiff on November 28, 1934. On that day plaintiff was riding as a passenger in a Chevrolet coupe, proceeding west on Maple street in Douglas county on the paved highway, about 2 o'clock p. m. on a bright, clear day, when the defendants, driving a large refrigerator truck proceeding west, overtook and negligently struck the automobile in which plaintiff was riding in its rear and knocked the same a considerable distance. In his original petition plaintiff alleges that as a result of the collision he suffered a severe sprain of the sacroiliac joint, a severe concussion of the brain, and a severe sprain of the right shoulder and of the neck. Later plaintiff amended his petition by stating that as a result of this accident plaintiff also suffered a compression fracture of the third lumbar vertebra and a subluxation of the fourth lumbar vertebra, commonly called a broken back, and alleged further the results of the injuries so received.
Defendants, in their answer, put in issue the claims of the plaintiff, and denied the negligence by him alleged. They further set forth that, "on December 10, 1934, negotiations were entered into between plaintiff and defendant for a compromise and a settlement and as a result thereof a compromise and settlement was made of all claims of whatsoever character the plaintiff may have had against this defendant and the alleged partnership for the sum of $ 15, which said sum by way of settlement and compromise was paid to plaintiff."
To this answer, plaintiff's reply, in addition to a general denial, in substance, alleged that the settlement actually made embraced only an adequate compensation for his damaged pipe, his injured watch, and the payment of his doctor bill, and that, as to the release pleaded by defendants, the same was the result of mutual mistake of all parties, and fraud exercised by defendants in the procurement thereof.
There was a trial to a jury, and a verdict was returned for plaintiff for $ 15,000. The trial court directed a remittitur of $ 10,000 by plaintiff. This order being complied with, the motions of defendants for a new trial and for judgment non obstante veredicto were each denied, and judgment was entered for the sum of $ 5,000 against defendants, from which they prosecute this appeal. Plaintiff Collins prosecutes a cross-appeal.
It may be said that the occurrence of the accident on November 28, 1934, and the infliction of severe injuries on plaintiff are amply sustained by the evidence. Plaintiff was taken home from the scene of the collision, treated by a physician, and remained in bed some three days. About the last of December following he went to see a physician. At this time he had a lump on his back that had never been there before. His evidence is that after this accident he could not do any lifting or heavy work; that he was restless, and had pains in his back and legs all of the time. The attending physician at the time testifies that the condition of Collins' back in December, 1934, was different than when he had seen him in the spring of 1934; that there was now a lump on his back about the third vertebra; that Collins, who was on relief, did not have any money to pay for X-rays and none were taken until March 30, 1936, which were introduced in evidence. Plaintiff's experts testify that these photographs disclose that the third lumbar vertebra had been crushed, and the fourth partly dislocated, which is called subluxation; that the vertebra which was crushed is about one-third of its normal width; that it is a permanent injury; that the fracture had been present less than two years because the healing was not complete when the picture was taken. Indeed, this crushed condition of the third vertebra does not appear to be a matter of dispute. The evidence in the record, notwithstanding its conflicting nature, considered as an entirety, if believed by the jury, forms ample support for a verdict in favor of plaintiff.
The defendants contend that the execution of a release and assignment by the plaintiff on December 10, 1934, and the acceptance by him of the sum of $ 15, operated as a complete settlement and discharge of all liability on their part.
The following is a photostatic copy thereof:
[SEE PHOTOGRAPH IN ORIGINAL]
It will be noted that we have here an ordinary printed blank which has been completed with pen and ink, but that between the third and fourth lines appear in typewriting the words "known and unknown," and likewise between the tenth and eleventh lines the typewritten words "injuries, known & unknown."
The record fails to disclose the presence of a typewriter, portable or otherwise, at the scene where this instrument was made out and the signatures thereto affixed. The evidence is also uncontradicted that Ed Fagen, shown as a witness on the above instrument, was wholly absent from the entire transaction, and that he affixed his signature at a place some miles distant from where the negotiations of settlement were had.
In their brief appellants treat the inserted typewritten words as regularly interlined and regularly connected with the printed portion of the instrument by "carets."
The "caret," it may be said, is a definite character of the English language, clearly defined and established by immemorial usage. While, at some time not now definitely appearing, the typewritten words "known and unknown" and "injuries, known & unknown" were typed on the face of this instrument, it would seem that no proper "carets" indicate where the same should be inserted, or incorporate these words in the body of the instrument.
The following constitute the definitions of the term "caret" as given by the leading lexiocographers, viz.:
Oxford Dictionary: ...
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