Janney v. The Va.n Ry. Co., (CC 582)

• Decision Date: 05 October 1937
• Docket Number: (CC 582)
• Citation: 119 W.Va. 249
• Parties: Osborn C. Janney v. The Virginian Railway Company
• Court: West Virginia Supreme Court

119 W.Va. 249

Osborn C. Janney

v.The Virginian Railway Company

(CC 582)

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1937.

Decided October 5, 1937.

Release

In the absence of fraud by an alleged tortfeasor in the procurement, for valuable consideration, of a release of liability for personal injury to another, such release may not be repudiated in an action at law by the releasor for damages for the injury.

Kenna, President, absent.

Certified from Circuit Court, Fayette County.

Action by Osborn C. Janney against the Virginian Railway Company, wherein the circuit court certified to the Supreme Court of Appeals its ruling sustaining a demurred to the special replication.

Affirmed.

J. Q. Hutchinson and Clay S. Crouse, for plaintiff. W. L. Lee and John R. Pendleton, for defendant.

Maxwell, Judge:

This certification presents the question: Where a person who has suffered personal injury, executes, for valuable consideration, a release granting full acquittance of legal liability to the person charged with responsibility for the injury, may the injured party later, in an action at law against the other party for damages for the injury, avoid the legal import and effect of such receipt on the sole ground of mistake? The circuit court answered this query in the negative and certified its ruling here for review.

The action is prosecuted under the Federal Employers' Liability Act. In his declaration, the plaintiff alleges that on February 25, 1935, while in the discharge of his duties as brakeman for the defendant, on a train engaged in interstate commerce, he suffered personal injury through the negligence of the defendant. To the declaration, the defendant entered a general issue plea, and filed a special plea of accord and satisfaction. In the special plea, there is averment that on June 25, 1935, the plaintiff, "for valuable consideration, released to the said defendant all claims and demands of every kind whatsoever for damages and injuries received and sustained by the plaintiff by reason of the matters and things set up and alleged in said declaration, * * *." The plaintiff replied generally to both the general issue plea and the special plea. To the special plea he filed also a special replication wherein he admits that he executed a purported release June 25, 1935, but alleges that he ought not to be bound by that paper because at the time of his signing the same he believed, under the advice of physicians, including physicians in the employ of the defendant, that his injuries attributable to the accident of February 25, 1935, were not serious but were merely temporary, whereas, it has later developed that the injuries are serious and permanent.

Though mistake by the plaintiff is not specifically averred in the special replication, the import of that pleading is that in executing the release the plaintiff acted under a mistake of fact. It is charged that physicians employed by the defendant advised plaintiff, as did other physicians, that his injury was merely temporary, and that "the defendant's physicians either knew that plaintiff was permanently injured and misrepresented that fact or were honestly mistaken as to the extent of plaintiff's said injuries and misled plaintiff into signing said purported release." This quoted language may tend to cast a shadow over the settlement but it is not sufficient as an averment either of mutuality of mistake or of fraudulent conduct on the part of the defendant. The replication is lacking in both of those respects. Such matters must be clearly and unequivocally charged.

The courts of the several states are at variance whether in an action at law a release may be repudiated on the ground of mistake.

The following cases sutain the affirmative of this prop- osition: Malloy v. Chicago Great Western R. Co., 185 Iowa 346, 170 N. W. 481; Clark v. Northern Pacific Ry. Co., 36 N. D. 503, 162 N. W. 406, L. R. A. 1917 E, 399.

Among cases holding that there cannot be such repudiation at law are the following: Greer v. Fargason Grocer Co., 168 Tenn. 242, 77 S. W. (2d) 443, 96 A. L. R. 1141; Mclsaac v. McMurray, 77 N. h. 466, 93 A. 115, L. R. A. 1916 B, 769; Holbrook, Cabot and Rollins Corp. v. Sperling, 239 Fed. 715. For a comprehensive discussion of this subject, consult Annotation, 96 A. L. It. 1144.

Of course, a mutual mistake of fact as to the extent of a releasor's injuries is sufficient to sustain a proceeding in equity to cancel a release. Atlantic Greyhound Lines v. Metz, 70 Fed. (2d) 166; Greer v. Fargason Grocer Co., supra.

In West Virginia, at law, a release of claim may be repudiated for fraud and misrepresentation. Norvell v. Kanawha & M. Railway Co., 67 W. Va. 467, 68 S. E. 288; McCary v. Traction Co., 97 W. Va. 306, 125 S. E. 92; Workman v. Casualty Co., 115 W. Va. 255, 175 S. E. 63. Fraud taints and vitiates every transaction it enters. It is of such nefarious character that relief therefrom should be granted by the first court to which application is made, whether the...