Kilby v. Charles City Western Ry. Co.

• Decision Date: 25 June 1921
• Docket Number: 33658
• Citation: 183 N.W. 371,191 Iowa 926
• Parties: JOE KILBY, Appellant, v. CHARLES CITY WESTERN RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

183 N.W. 371

191 Iowa 926

JOE KILBY, Appellant, v. CHARLES CITY WESTERN RAILWAY COMPANY, Appellee

No. 33658

Supreme Court of Iowa, Des Moines

June 25, 1921

Appeal from Floyd District Court.--C. H. KELLEY, Judge.

ACTION to recover damages for personal injury. Directed verdict for the defendant. Plaintiff appeals.

Affirmed.

Jens Grothe and H. J. Fitzgerald, for appellant.

Henke & Lovrien and Chandler Woodbridge, for appellee.

FAVILLE J. EVANS, C. J., STEVENS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

The appellee operates an electric railway between the towns of Marble Rock and Charles City in this state. In October, 1919 the appellant was a brakeman in the employ of the appellee. The train crew consisted of a conductor, a motorman, and the appellant, and they were in charge of a freight train. The crew made the trip from Charles City to Marble Rock and return. On the evening of October 4, 1919, between 11 and 12 o'clock, they left Marble Rock for Charles City. About midway between Marble Rock and Charles City is the station of Oakwood. Some distance outside of Oakwood the train was stopped, and the motor proceeded to Oakwood with two cars of tile, which were placed on the siding on the southeast side of the main track, or on what would be the right side in the course in which the train was moving towards Charles City. The two cars and one other were left together on the siding near the switch. After so doing, the motor returned to the train and was attached, and proceeded down the main track toward Oakwood. There was a considerable upgrade between the place where the train had been left and Oakwood. The track was slippery, and the automatic sander on the motor seems to have been out of order. The motorman told the appellant that it would be necessary to sand the rails by hand. The appellant went out on the running board on the right-hand side of the motor with a pail of sand, a lantern, and a fire shovel, and the train started toward Oakwood. In the meantime, the cars that had been left on the side track at Oakwood had escaped from the siding, and had run down an incline of the track onto the main line. The motor and the cars it was pulling came down the main line at a speed of about 40 miles an hour, and a collision occurred between the motor and the cars that had escaped from the siding. The appellant was caught between the motor and the cars, and received the injury to recover for which this suit is brought.

The appellant was taken to a hospital, where an operation was performed upon him. Later this action was begun; and, while the action was pending, he made a settlement with a representative of the railway company, and received the sum of $ 2,627.50 in cash, and medical and hospital expenses amounting to $ 372.50, and executed to the appellee a full and complete release in writing. The suit was thereafter tried. Said release was pleaded as a complete defense, and the appellant by reply alleged that the said release was executed at a time when he was physically and mentally incompetent to transact business, and was obtained by reason of misrepresentation and fraud. At the close of the testimony for appellant, the court directed a verdict in favor of the appellee. The motion for directed verdict was based on a number of grounds.

I. The first question for our consideration is whether or not the appellant is bound by the settlement and release which he made. It is conceded that the appellant signed the release offered in evidence, and received the amount agreed upon as damages. The question upon this branch of the case is whether or not the release was obtained from the appellant at a time when he was physically and mentally incompetent to execute the same, and whether it was procured by false representations and fraud.

The rules of law pertaining to the validity of a settlement and release have been before us frequently, and are well established. The difficulty lies in the application of the rules to the facts of any particular case. Where a settlement has been had between competent parties, and a release has been fairly entered into, without fraud or overreaching, it becomes binding and effectual, and will be upheld and enforced. It is undoubtedly the law that an instrument of this character can be impeached for fraud in procuring the same, or where the same was executed by a party who was mentally incompetent to legally execute such an instrument. The burden of proof is on the party seeking to impeach such written instrument. These propositions of law have been recognized by us and applied in Kilmartin v. Chicago, B. & Q. R. Co., 137 Iowa 64, 114 N.W. 522; Johnson v. Berdo, 131 Iowa 524, 106 N.W. 609; Johnson v. Chicago, R. I. & P. R. Co., 107 Iowa 1, 77 N.W. 476; Nason v. Chicago, R. I. & P. R. Co., 140 Iowa 533, 118 N.W. 751; Blossi v. Chicago & N.W. R. Co., 144 Iowa 697, 123 N.W. 360; Douda v. Chicago, R. I. & P. R. Co., 141 Iowa 82, 119 N.W. 272; and other like cases.

It will be necessary for us to briefly review some of the salient facts in the case. The appellant was an unmarried man, about 30 years of age. Immediately after the accident, he was removed to a hospital at Charles City, where he was operated upon the following morning. The appellant testified that he got to feeling fairly well after said operation; that, some 3 to 5 days after the accident, he met a Mr. Walters at the hospital, who asked him about how the accident occurred. At that time, the appellant did not know that Walters was an adjuster for the appellee company. The appellant explained to him how the accident occurred. He did not see Walters again until the forenoon of November 5th. At that time, appellant was sitting up in bed. Walters suggested that they talk about a settlement for the insurance company. Another patient, a Mr. Dugan, was in the same room with the appellant. At that time, appellant told Walters that he would give him no answer about a settlement; that he would rather have his attorney come. Walters told him that he did not need his attorney, and left. That afternoon, Walters and the attorney met at the hospital, however, and had a talk in the hall, and afterwards went in the room where the appellant was, and Walters said to the appellant: "You are wanting quite a sum, $ 11,000." He offered to pay $ 2,400, and the appellant said "No." The next day, this suit was started.

The appellant testified that, after this talk about a settlement, he talked with a Mr. Ernsberger, to whom he said that he might settle, if he could settle right. Appellant left word with the doctor to tell Ernsberger to come and see him. Ernsberger was the general manager of the railway company. Ernsberger did so, and appellant told Ernsberger that he would settle if Ernsberger would send a man to him that would settle right, but that he did not want Walters to come, if he could not pay more than he had offered. On November 18th following, the appellant underwent a second operation, at which time he was put under an anaesthetic. This was on Tuesday. Appellant says that he was weak on the following day, Wednesday, and that the next day, Thursday, Walters came to his room with the attending physician, and stayed for probably half an hour. Appellant says that Walters told him that he came to settle with him, and that he could not have his attorney there, and asked appellant if his folks were in town; that he said he would be up the following morning, between 9 and 10 o'clock, to settle with him. Appellant testified that Walters told him that it was a good thing for him to settle; for, if he would go to law, by the time he got through the courts, he would have less money than he was giving him. He also testified that Walters told him that the case was covered by the state law, and not by the Federal Liability Act. The appellant's father and stepmother were sent for, and came the next day, about 9 o'clock, and Walters came at about 10. The appellant testified that Walters then said that it was a good thing for him to settle; that, by the time he would get through court, he would have less money than was offered him; and that it would take from 3 to 5 years before he could collect any. Appellant said he would have to have money to pay his doctor and hospital bill, and Walters said he would pay the bill. Appellant testified that Walters told him to think it over, and that Walters went out of the room, and remained for some 15 or 20 minutes. He says that Walters told him that the railway was not engaged in interstate commerce, and that appellant could not recover under the Federal Liability Act. He said Walters figured up, and told him that the amount he was entitled to recover was $ 2,627.50; that that was all the state law allowed, and all he could collect; and that he believed the statement to be true. He says that Walters told him of other cases that had gone to court, and the insurance company had beat them out by not settling; and that, if he went to law, he would not get as much as he was offered; that it had to be settled that day, if it was settled at all; and that he would not be back any more.

On cross-examination, the appellant said that he did not remember how many times he consulted with his attorney between the first and second operation; that he remembered seeing him twice; that his attorney told him that the question of whether he came under the Federal or the state act was a question that had to be proved; that he told him that perhaps he could collect between $ 12,000 and $ 15,000. This was before the settlement. He also told him that he thought he could collect more than was being offered him that he thought about $ 8,000 would be allowed for an arm; and told him to start suit, and, if the insurance company would offer him a...