Fornaro v. Minneapolis Street Ry. Co., 28173.
| Decision Date | 09 January 1931 |
| Docket Number | No. 28173.,28173. |
| Citation | 234 N.W. 300,182 Minn. 262 |
| Parties | FORNARO v. MINNEAPOLIS STREET RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.
Action by Dominick Fornaro against the Minneapolis Street Railway Company. From an order granting judgment for defendant notwithstanding the verdict, plaintiff appeals.
Affirmed.
Smith, Callahan & Carlson and John C. Crowley, Jr., all of Minneapolis, for appellant.
R. T. Boardman and J. F. Dulebohn, both of Minneapolis, for respondent.
Plaintiff appeals from an order granting judgment in favor of the defendant notwithstanding the verdict, made on defendant's alternative motion for judgment or a new trial.
The action is one to recover damages for personal injury. The only question presented and argued here is whether the release given by plaintiff was a bar to recovery. Stated in other words, whether there was sufficient evidence to justify the jury in setting aside the release on the ground that it was obtained by fraud or misrepresentations.
Plaintiff fell down the steps of one of defendant's street cars on February 6, 1929, and suffered some injury. He called his own doctor that same day and was examined by him. The doctor found that plaintiff had some bruises on his body, a sprained back, and some pain on manipulation of the pelvis. He told plaintiff to stay in bed and use hot packs and massage, and gave him a sedative to relieve pain. He visited plaintiff every day for about a week. Nothing further developed, except that a short time later X-ray pictures were taken and showed a deformity of the back, caused by deforming arthritis or rheumatism at the fourth lumbar vertebra, which had existed prior to the accident. The doctor examined plaintiff shortly before the trial, and testified that plaintiff still had difficulty in stooping over or in getting up suddenly, and complained of pain; that there were no objective symptoms; that it was difficult to say whether the arthritis, independent of the accident, or the accident, was giving plaintiff a good deal of trouble.
Plaintiff testified that he was confined to bed for about five weeks, then remained in and about the house most of the time until in June; that he was unable to work during that period; that in the latter part of June he went to work in a shoe repair shop, shoe repairing being his trade, but was unable to do heavy work or to run a shoe repairing machine, and, because of his condition, was able to earn only about one-half as much as he had earned prior to the accident, and that he now wears a brace or belt for his back.
Two days after the accident, plaintiff had his wife write a letter to the defendant informing it of the accident. He told her what to say. In that letter she stated: "* * * The Dr. says he will be in bed from four or five weeks if not longer, then when he gets up will have to have his back strapped." The letter is important as showing that plaintiff knew, from his own doctor, the extent of his injuries and the probable consequences that would result therefrom a week before any settlement was made.
Defendant's claim agent came to see the plaintiff on February 12th, and had a conversation with him about the accident and injury. Nothing was said about a settlement at that time. The agent said he or the company would send a doctor to examine the plaintiff. Dr. Corbett was sent to examine, and examined, the plaintiff the next day. Plaintiff testified that Dr. Corbett examined him and told him to remain quiet in bed and be careful; that there was nothing the matter with him and he would be all right in a few days; that he should do what his own doctor told him to do and he would be all right.
On February 15th, according to the dates of the release and check, the claim agent came to see plaintiff again. Plaintiff testified that the claim agent said that Dr. Corbett had told him that there was nothing the matter with plaintiff and that he would be all right in a few days; that the agent said he did not think the street car company was at fault; that the company did not give money away; that they would settle up the best they could; that they would pay $150 for this claim; that plaintiff refused to settle for $150, and that the agent then went out to telephone to the company's office and came back and offered $200; that he again told Plaintiff he would be sick only a few days and had better take the money, otherwise he would get nothing; that plaintiff again objected that it was not enough, and asked what they were going to do after that; that the agent said the company would take care of him and he would make it good for plaintiff. Plaintiff then signed the release and accepted a check for $200, which he cashed. The release covered both known and unknown injuries and consequences of the accident. While plaintiff denied that the release was read to him, it is conceded that he knew he was signing a release of his claim.
1. There was here no unknown injury, or any mistake as to the nature or extent of the injury. The question of mistake, in that respect, does not enter into the case. The most that can be said is that Dr. Corbett was mistaken or overoptimistic in his opinion as to how soon plaintiff would recover. But plaintiff, according to his letter, had been informed by his own doctor that he would be confined to his bed for five weeks or longer and would then have to wear a strap or brace for his back. That is just what did result. Ordinarily plaintiff would rely on the opinion of his own physician, and there is no evidence to the contrary. He must have known at the time he gave the release what his injury was and the probable result thereof. The opinion of Dr. Corbett, who saw the plaintiff only once and did not treat him or have any authority to treat him, who was not present at the time of the settlement and had nothing to do therewith, is not a...
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