Conklin v. Mo. Pacific Railroad Co.

• Citation: 55 S.W.2d 306
• Decision Date: 16 December 1932
• Docket Number: No. 30089.,30089.
• Parties: ROSCOE CONKLIN v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 306

ROSCOE CONKLIN v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 30089.

Supreme Court of Missouri.

Court en Banc, December 16, 1932.

Appeal from Jefferson Circuit Court. — Hon. E.M. Dearing, Judge.

REVERSED.

Thomas J. Cole and Dearmont & Russell for appellant; D.A. Butler, David A. Smith and Ralph D. Walker of counsel.

The court should have sustained the demurrer to the evidence on the ground the plaintiff had fully settled all claims against the defendant. Wingfield v. Wabash Railroad, 257 Mo. 364; Carroll v. United Rys. Co., 157 Mo. App. 267; Davis v. Ins. Co., 81 Mo. App. 264; Hardister v. St. Louis I.M. & S. Ry. Co., 177 S.W. 981, 119 Ark. 95; Hall v. K.C. So. Ry. Co., 209 S.W. 582; Thompson v. Kansas City C.C. & St. J. Ry. Co., 27 S.W. (2d) 58.

C.O. Inman and C.R. Cravens for respondent.

(1) In passing upon the demurrer to the evidence the appellate court should give plaintiff the benefit of all the evidence favorable to him and of all reasonable inferences to be drawn therefrom. State ex rel. Brown v. Trimble, 23 S.W. (2d) 162; Buesching v. Gas Co., 73 Mo. 219; Gratiot v. Railroad Co., 116 Mo. 450; Gettys v. American Car & Fdry. Co., 16 S.W. (2d) 85. (2) Where a party is induced to enter into a contract by the positive and fraudulent misrepresentation of the other party, the misrepresentation is not excusable upon the ground that the injured party might have discovered the fraud by the exercise of diligence. In all business dealings each party has the right to presume honesty and fair dealing on the part of the other. Cottrill v. Krum, 100 Mo. 397; State ex rel. Union Pac. Ry. Co. v. Bland, 23 S.W. (2d) 1029; Christensen v. Koch, 85 Wash. 472, 148 Pac. 585; State ex rel. Brown v. Trimble, 23 S.W. (2d) 162; Rabenau v. Harrell, 213 S.W. 92; Laird v. Keithly, 201 S.W. 1138; 26 C.J. 1145-46-47-48, secs. 65, 66. (3) The alleged statement of the doctor to the effect that plaintiff would be well, etc., in four months, while, perhaps, merely an expression of an opinion, would have been actionable fraud, inasmuch as the doctor did not honestly entertain any such opinion. The statement of the claim agent to plaintiff that the doctor had given him such an opinion, which was untrue, was, therefore, the misrepresentation of a material fact. Yeagor v. St. Joseph Lead Co., 12 S.W. (2d) 520; Green v. St. Louis-S.F. Ry. Co., 30 S.W. (2d) 784; Carroll v. United Railways Co., 157 Mo. App. 247; Tattershall v. Yellow Cab Co., 37 S.W. (2d) 659; Macklin v. Fogel Const. Co., 31 S.W. (2d) 14; Atchison v. Mo. Pac. Railroad Co., 46 S.W. (2d) 230.

RAGLAND, J.

This is an appeal by defendant from a judgment against it for $12,500, the amount assessed by a jury as the damages sustained by plaintiff as the result of personal injuries. Defendant pleaded a full release in bar of the action. Plaintiff in his reply alleged that the release was obtained through the false and fraudulent representations of defendant's claim agent. Whether the evidence with respect to the matters set up in avoidance of the release was sufficient to make a submissible case for the jury is the decisive question in the case.

Plaintiff was in the employ of defendant as a machinist. On November 17, 1924, as he was preparing to get down from the cab of an engine, where he had been engaged in making repairs, he was caused through the negligence of other employees of defendant to fall backward to the ground, falling across an iron pipe. The physician who examined him immediately after his fall was unable to discover anything in the way of injury other than sprains and bruises; he advised merely that plaintiff make applications of liniment. Plaintiff thereafter continued in the same work for defendant until on or about the 15th day of April, 1928, a period of more than three and a half years. During that interval he suffered severe pain from time to time — in the lower part of his back and in his left leg, causing him to lose considerable time. His ailment grew progressively worse, causing him to give up work entirely on the date last mentioned. About that time he went to the Missouri Pacific hospital where he was examined by one of its staff surgeons, Dr. Stewart. Dr. Stewart caused X-ray pictures to be made of his back and hips. These disclosed, among other abnormalities, a slight separation of the sacroilliac joint on the left side, a fracture of the transverse process of the twelfth dorsal vertebra and a compression of the fifth lumbar vertebra. Following this disclosure plaintiff's body was put in a plaster paris cast. A few days later, on May 25, 1928, the release in question was executed at the hospital.

Shortly before entering the hospital as a patient plaintiff filed with the claim department of defendant a claim for his injuries, and made one or more visits there in an effort to negotiate a settlement. After his entrance into the hospital, his wife visited defendant's claim agent on one or more occasions, urging an immediate settlement, on the ground of her pressing need of money. Finally they tentatively agreed upon the terms of a settlement and went together to the hospital where her husband was. As to what occurred there and as to other matters touching the execution of the release we will let the plaintiff speak:

"Q. Now, just tell the jury what happened, and if he asked you any questions, tell the jury what transpired in that room from the time he entered it until he left and you got six hundred dollars? A. Well, I think he came on the 23rd or 24th, at first. Mr. Butler was out there and talked to me about five hundred dollars. When he entered the room, he got there around 12:30 or 1:00 o'clock, and my wife was with him, and there were two patients in the room, two bed-patients. They were patients that were allowed to get up and walk around, and the patient in the bed next to me had two broken ankles and a broken leg. He told this man to get out of the room and close the door and he pushed the door shut and after that he talked to me. He came over to the bed and said they had decided to raise that amount from five hundred dollars to six hundred dollars and he asked me if I wouldn't take six hundred dollars, and release them from any suit. I said no, I wouldn't take that amount because I didn't know what my injuries were, and he said he had talked with Dr. Stewart that morning and Dr. Stewart told him I would be well and out of the hospital in three or four months, and that I would be back at work in four months at the very least. I had asked Dr. Stewart three or four times, and he told me — after he assured me that Dr. Stewart had assured him that I would be well and out of the hospital in four months and be back at work on my old job, he fixed up this paper for $150 a month for four months, and I signed it. I thought if I would be well and back to work on my old job in three and one-half or four months, I would settle the matter and accept the six hundred dollars, under the agreement that I was to have my old job back.

"Q. What was it that induced you to take the six hundred dollars? A. Mr. Butler had assured me that I would be well and out of the hospital in four months.

"Q. That was Dr. E.J. Stewart he was talking about? A. Yes, sir... .

"Q. That is the one that had been treating you right along? A. Yes, sir.

"Q. Did Dr. Stewart ever tell you what your condition was? A. No, sir. I asked him several times and he never would give me any definite answer.

"Q. Did you try to get any other information from any other doctor? A. I did from the interne. These were the only two doctors that attended me.

"Q. Did you ever ask the other doctors how long it would be before you could work? A. I did, and they wouldn't give me any information... .

"Q. You finally signed a release there for $600? A. Yes, sir; I did... .

"Q. Did they give you money or a check? A. A draft for $600.

"Q. Did you cash that? A. I signed it and my wife deposited it in the bank... .

"Q. You knew that when you signed it (the release) — you knew this was a settlement of this case? A. Yes, sir.

"Q. The only reason you are trying to set that aside is because Mr. Butler told you that Dr. Stewart said you would be well in three or four months? A. Yes, sir.

"Q. That is the only reason you want it set...