Great Northern Ry. Co. v. Fowler

• Court: U.S. Court of Appeals — Ninth Circuit
• Citation: Great Northern Ry. Co. v. Fowler, 136 F. 118 (9th Cir. 1905)
• Decision Date: 06 February 1905
• Docket Number: 1,114.
• Parties: GREAT NORTHERN RY. CO v. FOWLER.

136 F. 118

GREAT NORTHERN RY. CO v. FOWLER.

No. 1,114.

United States Court of Appeals, Ninth Circuit.

February 6, 1905

The appellee was the complainant in a bill brought to set aside a settlement he had made with the appellant on March 20, 1902 for injuries which he received while in the employment of the appellant as a brakeman on its railroad. He alleged that on February 5, 1902, through the negligence and carelessness of the appellant in erecting telegraph poles with the cross-arms thereon so close to the track of its railway, he was violently knocked from a moving train, without fault on his part, and was hit on the side of the head by a cross-arm of one of said telegraph poles, and was rendered senseless, had his skull fractured, and received permanent injuries. He alleged further that a week after receiving said injuries relying upon the inducements made by the claim agent of the appellant, he went with said claim agent into the office of the physician and surgeon of the appellant, where he was examined by said physician, and that after such examination either through mistake, or for the purpose of deceiving the complainant, said physician diagnosed his case by saying that he was practically well, and would be ready and able to go to work in a week or two; that, in consequence thereof, he was induced to sign a release of all damages and demands on account of his injuries upon the payment of his doctor's and nurse's bills, and his wages for the said period of time during which he would be disabled from work, amounting in all to $195; that from the time of said injury until May 18, 1902, pus oozed out of the fracture of the appellee's skull, and on, on his bending or leaning forward, he would become dizzy and blind, and fall to the ground or floor; that some months afterward he was compelled to undergo a hazardous and delicate surgical operation, having a piece of the skull which was pressing upon the brain removed, and ever since has been unable to perform any kind of work or labor. And the appellee brought into court and tendered the repayment of $195 which he had so received, with interest thereon. The evidence was that the settlement so made by the appellee with the appellant was made at the instance of M. J. Gordon, a claim adjuster of the latter, who went to the appellee's home for the purpose of negotiating such settlement. He testified that he asked the appellee what he thought the company ought to do for him in connection with his accident and the latter said that he thought he ought to be allowed his time while he was laid up, and the witness replied that he would be willing to recommend that; and he directed him to come to Seattle, and told him he would have him examined by Dr. Eagleson, the appellant's surgeon in Seattle, and ascertain just how long he ought to be laid up before he went to work; that he would be allowed whatever time there was, and the doctor's and nurse's bills, if they were not excessive. The witness testified further that accordingly the appellee went to Seattle, and the witness took him up to Dr. Eagleson's office for examination, and had the doctor make an estimate as to how long he ought to be laid up before going to work, and that Dr. Eagleson gave an opinion that the appellee would be incapacitated for about two weeks. The witness added: 'We calculated his time at the regular rate, and produced the doctor's bill, and the bill for nurse, and the amount of his time, and footed it up at $195. I filled the release papers in at $195; made a sight draft; attached the release papers. He executed the release and voucher. I went with him to the bank and paid him $195. ' The doctor's report was made upon a blank provided by the railway company, containing questions to be answered by the examining surgeon; and it contained, among others, the following questions and answers:

'(7)A. Give description, stating the parts injured and supposed manner of infliction.-- Contused wound of scalp a little to the left of crown, and contusion of left shoulder.

'B. Will any permanent injury or deformity result? If so, what?-- I think not.'

'(14) How long will patient be disabled?-- Will probably be able to work in two weeks.'

Dr. Eagleson at that examination described the injuries as follows: 'Contused wound of scalp a little to left of crown, and contusion of left shoulder. ' The release which was executed by the appellee described the injuries thus: 'Divers injuries to my person and property by reason of while climbing down side of box car was struck by cross-arm on telegraph pole which would not clear me, causing a severe lacerated wound of scalp over middle parietal region and other injuries. ' Dr. Eagleson testified that Mr. Gordon, when he brought the appellee to him, asked him to look him over and see 'what I thought his present condition was, and how soon I thought he could be able to go to work,' and that in response he said, 'In probably two or three weeks. ' The appellee testified, and it is not disputed, that Dr. Eagleson made an examination of him, lasting about 10 minutes; looked at his head; asked him a few questions; told him his injuries did not amount to much, and that he would be all right in about a couple of weeks. There was evidence that the injuries received by the appellee were far more serious and permanent than Dr. Eagleson found them to be; that the appellee sustained an injury to his brain and nervous system, resulting in traumatic neurosis, symptoms of which are accelerated pulse, pains in the head, inability to concentrate thought, forgetfulness, sleeplessness, numbness, impaired digestion, etc., and that while before the accident he was known to be a strong, well man, and never was known to be sick, immediately after the accident he was confined to his bed for a week, and for four or five weeks was confined to the house, during which times he was better on some days, and on other days worse, was weak and dizzy much of the time, with constant pain in his head, and that later he submitted to an operation on his skull, performed at the hospital, and after the operation he was confined to the hospital for a week or so; that thereafter he was removed to his home, and was several days there in bed, and was confined to the house for three weeks. There was expert evidence to the effect that the appellee's skull was injured, if not fractured, by the blow upon his head; that the periosteum was removed from a portion of his skull, leaving the bone bare, and that some months later he submitted to an operation whereby a piece of necrosed bone was removed; that it would be years before he could recover; that his injuries might be permanent; and that he placed his life in peril every time he undertook the employment of a brakeman. The court found that at the time of the injury the appellee was 30 years of age, a robust, healthy man, and that his present ailments were caused by the injury; that he is afflicted with traumatic neurosis, and is subject to fainting spells, and that he will be incapacitated for work for an indefinite time; that the sum of $195 so paid him was not reasonable or adequate compensation for a tortious injury of such magnitude; and that the evidence justified a decree annulling the settlement and release set forth in the bill.

L. C. Gilman, for appellant.

George H. Walker, Walker & Munn, and Robert Welch, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

The evidence in the case convinced the trial court, as it convinces us, that the settlement was made under a mutual mistake of both parties thereto as to the nature and extent of the appellee's injuries. The appellee, in making the settlement, acted wholly upon the advice of the agent and surgeon of the appellant. The agent called on him for the purpose of procuring a settlement, and informed him that the company was willing to pay him, in full discharge of all demands for the injuries received, his nurse's and doctor's bills, together with his regular wages as brakeman for the time during which he would be incapacitated to work. The appellant's surgeon made an apparently cursory examination of the appellee's injuries, and found that they consisted of a wound of the scalp, a contusion of the shoulder, and nothing more, and expressed his opinion that the appellee would be ready to go to work again in two weeks. The appellee consulted no other physician as to the extent or probable duration of his injury. He was a sick man at the time when he made the settlement. He accepted the statement and opinion of the appellant's surgeon, and, on the basis of it, received $195, and signed the discharge. We entertain no doubt that such a release, executed under a mutual mistake of fact so induced by the...