F. Kiech Mfg. Co. v. James

• Decision Date: 28 April 1924
• Docket Number: (No. 345.)
• Parties: F. KIECH MFG. CO. v. JAMES.
• Court: Arkansas Supreme Court

Page 24

261 S.W. 24

F. KIECH MFG. CO. v. JAMES.

(No. 345.)

Supreme Court of Arkansas.

April 28, 1924.

Appeal from Circuit Court, Craighead County; W. W. Bandy, Judge.

Action by Lawrence James against the F. Kiech Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cooley & Adams, of Jonesboro, and Hughes & Hughes, of Memphis, Tenn., for appellant.

J. F. Johnston, of Lake City, and Gautney & Dudley, of Jonesboro, for appellee.

SMITH, J.

On March 1, 1922, appellee sustained an injury while working as an employee of the appellant company at its manufacturing plant in Lake City, Ark. 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 7th 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:

                                     "Release
                                                "May 9, 1922
                

"For the sole consideration of one thousand fifty and 00/100 dollars to me this day paid, I, for myself, my heirs, executors, administrators, and assigns, do hereby release and forever discharge the F. Kiech Manufacturing Company of and from all claims or demands, damages, actions, or causes of action in law or in equity from any matter, cause or thing whatsoever, prior to the date hereof, and on account of personal injuries, and all other loss or damage (including loss or damages to the property of the undersigned) resulting, or to result from, an accident to myself, L. F. James, which occurred on or about the 1st day of March, 1922.

"To secure the payment of said sum, I hereby represent to the F. Kiech Manufacturing Company that I am twenty-one years of age, and that I rely wholly upon my own judgment, belief, and knowledge of the nature, extent, and duration of said injuries, disabilities, and damage, and that no representations or statements about them have induced me to make this settlement.

"It is understood and agreed the consideration stated herein is contractual, and not a mere recital, and all agreements and understandings between the parties are embodied and expressed herein.

"In witness whereof, I have hereunto set my hand this ninth day of May, 1922.

                                       his
                           "Lawrence F. X James. [Seal.]
                                       mark
                                  his
                            "L. F. X James. [Seal.]
                                  mark
                  "In presence of
                      "H. H. McAdams
                      "F. M. James."
                

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 is 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:

"It is agreed by counsel for both plaintiff and defendant that Doctor H. H. McAdams, if present, would testify that he attended Lawrence James from the time he was injured until he was discharged from the hospital; that at the time the purported settlement was made he was present, and heard the settlement discussed between Lawrence James, and Mr. Boydston and Mr. Bird, representing the F. Kiech Manufacturing Company; that he (McAdams) examined Mr. James' injuries at the time, and stated to Mr. James, in the presence and hearing of Mr. Boydston and Mr. Bird, that the injuries were not permanent; that in a short time, in the course of five or six months, he would recover the use of his arm, and could use it as good as he ever did, except there might be a stiffness in the elbow; that at the time he made this statement he honestly believed his prognosis was correct, but since that time it has become necessary to perform an operation on the arm, and they amputated it, and that he (McAdams) assisted in the amputation. In the opinion of the witness, at the time James signed the release he was not under the influence of narcotics, and, in the opinion of Dr. McAdams, Mr. James knew and understood what he was doing, and was in full possession of his mental faculties at the time the release was executed."

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 7th. 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...