F. Kiech Manufacturing Company v. James
Decision Date | 28 April 1924 |
Docket Number | 345 |
Citation | 261 S.W. 24,164 Ark. 137 |
Parties | F. KIECH MANUFACTURING COMPANY v. JAMES |
Court | Arkansas Supreme Court |
Appeal from Craighead Circuit Court, Jonesboro District; W. W Bandy, Judge; affirmed.
Judgment affirmed.
Cooley & Adams and Hughes & Hughes, for appellant.
The release was a contract between the parties, and must be tested by the principles of law which govern the reformation or rescission of other contracts. Where cancellation is sought on the ground of mistake of fact, it must appear that it was a mutual mistake. 1 Black on Rescission and Cancellation, § 128, pp. 362-3; 2 Black p. 975. While this court is committed to the rule that an innocent misrepresentation of the facts of the releasor's injury made by the releasee's physician, may be effective to avoid a release induced thereby (87 Ark. 614), it is equally true that, where a releasor relies upon the opinion of his own physician, which proves to be incorrect, there is no grounds for setting aside the release (20 Ann. Cas. p. 750). Citations on the two points are found at 136 F. 118; 156 N.W 251; 34 Cyc. 1059; 23 R. C. L. p. 292; L. R. A. 1916B, p. 784; 110 Ark. 182; 115 Ark. 629; 121 Ark. 433; 128 Ark. 223; 1 Black p. 163; Id. p. 238-239. It was a disputed question as to whose agent Dr. McAdams was, and it was error to give appellee's instruction No. 1, which assumed that Dr. McAdams was the agent of the appellant. Appellee is estopped to repudiate his release. 89 Ark. 321; 47 Ark. 335. No representation was made by appellant, and the release declares that the releasee was relying upon his own judgment. This case does not come within the class of cases found at 143 N.Y. 424, where false representations were made.
J. F. Johnston and Gautney & Dudley, for appellee.
Appellant only made a general objection to instruction No. 1. The same instruction has been approved in 87 Ark. 614; 93 Ark. 589; 139 Ark. 69.
On March 1, 1922, appellee sustained an injury while working as an employee of the appellant company, at its manufacturing plant in Lake City, Arkansas. On the same day he was taken to Jonesboro and placed in a hospital, and remained there under the care of Dr. H. H. McAdams until May 7 following, when he was discharged from the hospital by Dr. McAdams.
On May 9, 1922, a settlement was effected between appellant and appellee, pursuant to which appellant paid appellee $ 1,050 and took the following release:
Thereafter, notwithstanding said release, appellee instituted this action to recover damages for his injury. Appellant interposed several defenses, and, among others, the release; and at the trial appellee sought to avoid the effect of the release by showing that, on the day it was given, Dr. McAdams made to appellee certain statements relative to the nature, extent and probable duration of his injuries, which he believed to be true, but which, as it subsequently developed, were erroneous.
Dr. McAdams did not testify as a witness, but a statement of what his evidence would be if present was dictated into the record, which reads as follows:
After appellee was injured, Hysmith, the plant foreman, directed Dr. Roberts to attend the injured man, and Roberts rendered first aid, and carried appellee to the hospital at Jonesboro. Dr. Roberts testified that, at the suggestion of Hysmith, he called Drs. Stroud and McAdams, physicians and surgeons, practicing their profession as partners at Jonesboro, to meet him at the hospital. That on the way he met C. M. Boydston, the manager of the company, or a Mr. Shauver, an officer of the company (he did not remember which one), who, on learning of the occurrence of the accident, told the witness to "take him on and do the best you can for him." Witness placed appellee in the hospital, and Drs. Stroud and McAdams assumed charge of the case, and witness advised Boydston the action he had taken.
Appellee testified that, while he was in the hospital, he was attended by Drs. Stroud and McAdams, principally the latter; that he did not know who engaged them, and that he was discharged from the hospital by Dr. McAdams on May 7. These physicians continued to treat appellee after he was discharged from the hospital until the 1st of September following, during the first month of which time he came into Jonesboro to their office for treatment every day. These visits were reduced to two a week, and later to one a week, but, as appellee did not get well, as had been anticipated, and continued to suffer, his arm was amputated, the operation being performed by Drs. Stroud and McAdams, assisted by Dr. Roberts.
During appellee's illness the company paid all his expenses and advanced him small sums of money from time to time, and, by the terms of the settlement made between appellee and the company, the company was to pay the sum of $ 1,050, out of which was to be deducted the expenses paid, and the sum of $ 219.04 due Drs. Stroud and McAdams, and certain drug bills, and the advances which the company had made in money.
On the day the...
To continue reading
Request your trial-
Wagner v. St. Louis-San Francisco Ry. Co.
... ... ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT. [*] Court of Appeals of Missouri, SpringfieldJuly 12, 1929 ... 553; Standard Oil Co. v. Gail, 297 S.W. 1020; F ... Kiech Mfg. Co. v. James, 261 S.W. 24 ... BAILEY, ... J ... ...
-
Wagner v. St. L-S.F. Ry. Co.
... ... TAYLOR WAGNER, RESPONDENT, ... ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, APPELLANT ... Springfield Court of Appeals, Missouri ... Opinion filed ... Payne, 250 S.W. 553; Standard Oil Co. v. Gail, 297 S.W. 1020; F. Kiech Mfg. Co. v. James, 261 S.W. 24 ... BAILEY, J ... ...
-
Kansas City Southern Railway Co. v. Sanford
...31 S.W.2d 963 182 Ark. 484 KANSAS CITY SOUTHERN RAILWAY COMPANY" v. SANFORD No. 185Supreme Court of ArkansasOctober 20, 1930 ... \xC2" ... H. Moore (Kansas City, Mo.), A. F. Smith and James B ... McDonough, for appellant ... S. P ... Jones, ... 11; Sun Oil Co. v. Hedge, 173 ... Ark. 729, 293 S.W. 9; F. Kiech Mfg. Co. v ... James, 164 Ark. 137, 261 S.W. 24; Mo. Pac. Ry ... Co ... ...
- A. M. Collins Manufacturing Company v. Lawrence County Bank