Davis v. Higgins
| Decision Date | 03 April 1923 |
| Docket Number | Case Number: 13088 |
| Citation | 95 Okla. 32,217 P. 193,1923 OK 196 |
| Parties | DAVIS v. HIGGINS. |
| Court | Oklahoma Supreme Court |
¶0 1. Contracts--Presumptions--Fraud.
Fraud is never presumed, and when a written contract is attacked on that ground, the contract will be upheld unless the allegations of fraud are established by clear and convincing evidence, and the fraud must be predicated upon existing facts, and cannot consist of mere promises as to future action.
2. Release--Right to Set Aside for Fraud.
Where a release for personal injuries has been executed, and the party executing the release seeks to set aside the same because of fraudulent representations, it must be shown that such representations were (1) material, (2) false, (3) known by the party making them to be false or that such party made them recklessly without any knowledge of their truth and as a positive assertion, (4) that they were made with the intention that they should be acted upon by the party to whom they were made, (5) that such party acted in reliance upon them, and (6) that he thereby suffered injury.
3. Same--Ground of Mutual Mistake.
A release may be set aside for mutual mistake, but in such case there must be mutual mistake of a past or present fact material to the agreement, and must not be a mistake in prophecy, opinion, or in belief relative to an uncertain event, such as probable developments from and permanency of a known injury.
4. Same--Rescission for Fraud--Damages for Personal Injuries.
A person who executes a release for a claim for damages for personal injuries received, and who acted deliberately and intelligently, cannot rescind it for fraudulent representations upon discovering that the injuries did not heal as rapidly as he supposed at the time of signing the release, even though the attending surgeon told him he would be all right in six months, where no fraud, deceit, or imposition was practiced upon him and the opinion of the surgeon was given in good faith.
5. Same--Insufficiency of Evidence.
Evidence examined, and held insufficient to show fraudulent representations in procuring release.
Error from District Court, Marshall County; Geo. S. March, Judge.
Action by J. C. Higgins against James C. Davis, agent provided for in the Transportation Act of 1920, for damages for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed, and remanded, with directions.
C. O. Blake, W. R. Bleakmore, A. T. Boys, and W. F. Collins, for plaintiff in error.
Ledbetter, Stuart, Bell & Ledbetter and A. G. Morrison, for defendant in error.
¶1 Defendant in error, hereinafter referred to as plaintiff, commenced this action to recover damages for an injury sustained when he was thrown from a car, and while the plaintiff was employed as a brakeman by the plaintiff in error, hereinafter referred to as defendant.
¶2 The injury occurred on the 26th day of July, 1918, and the plaintiff sustained a fracture of both bones of the right leg just above the ankle. On the 24th day of April, 1919, the plaintiff made a settlement with the defendant and executed his written release and received from the defendant the sum of $ 5,250. On May 7, 1920, plaintiff filed a suit for recovery of damages against the defendant for such injury in the sum of $ 35,000. The defendant in its answer pleaded the settlement and release, and the plaintiff in his reply alleged that the release was obtained by fraud. The case was submitted to a jury and verdict returned for the plaintiff for $ 12,750, less the $ 5,250 which had previously been paid to the plaintiff. From this judgment, the defendant has appealed.
¶3 The only question which is necessary for us to consider is as to whether the evidence introduced was sufficient to render the written release invalid because of fraud in its procurement.
¶4 In Lusk v. White, 58 Okla. 773, 161 P. 541, the second paragraph of the syllabus is as follows:
"It is a well-settled rule that fraud is never presumed, and that, where a written contract is attacked on that ground, the contract will be upheld, unless the allegations of fraud are established by clear and convincing evidence, and the fraud must be predicated upon existing facts, and cannot consist of mere promises as to future action."
¶5 In the instant case, the plaintiff relies upon alleged false and fraudulent misrepresentations of the company's physicians and claim agent in procuring the execution of the release. In this connection, the material facts shown by the testimony are that the injury occurred on July 26, 1918; plaintiff was immediately placed under the care of the company's surgeons; thereafter, about the first of April, 1919, he testified that he had a conversation with Dr. Oderholt in which he told the doctor that the claim department had kept after him for a settlement and that he would like to be fair with them and if his leg was going to be all right he would settle with the company, and the doctor said: "Your leg will be all right inside of six months." He testified, also, that Lewis made practically the same statement and at about the same time. The testimony shows that the settlement was not made at that time, and that, the leg having failed to heal and some slivers of bone having worked through the skin, the plaintiff was taken to Chicago on the 22nd day of April, 1919, to Dr. Plummer, a company surgeon. Dr. Plummer, upon making an examination, advised the plaintiff to see a bone specialist in Chicago and advised that he thought it would probably be necessary to break the bones of the leg again. Lewis was present at the time and offered to go with the plaintiff to see the specialist, but the plaintiff declined to go to see him and declined to have the leg rebroken, and, after declining to see the specialist, the plaintiff went to the claim agent and entered into the settlement agreement and received the sum of $ 5,250 and executed the release.
¶6 Between the day the plaintiff claims the misrepresentations were made by Drs. Oderholt and Lewis as to the extent of his injuries and the day of the execution of the release in Chicago, the plaintiff's attorney advised the defendant by letter, as follows:
¶7 In the release which was executed is the following provision:
"In making this settlement and executing the release, I rely solely on my own judgment and information, and do not rely on any statements of or representations as to the facts of the accident or of the character and extent of my injuries which may have been made to me by said Director General or by any of said railway companies, or by any of their officers, agents, employes, or physicians, respectively, or by any other persons, and I fully realize that my judgment as to the extent of my injuries, and all expressions of others with reference thereto, rest upon opinion only, and may be erroneous."
¶8 The only ground upon which the plaintiff seeks to invalidate the...
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