Kirchgestner v. Denver & R. G. W. R. Co.

• Decision Date: 17 May 1950
• Docket Number: No. 7370,7370
• Citation: 218 P.2d 685,118 Utah 20
• Court: Utah Supreme Court
• Parties: KIRCHGESTNER, v. DENVER & R. G. W. R. CO.

Page 685

218 P.2d 685

118 Utah 20

KIRCHGESTNER, v. DENVER & R. G. W. R. CO.

No. 7370.

Supreme Court of Utah.

May 17, 1950.

Van Cott, Bagley, Cornwall & McCarthy, Clifford L. Ashton, all Salt Lake City, for appellant.

Rawlings, Wallace, Black & Roberts and Dwight L. King, all Salt Lake City, for respondent.

WOLFE, Justice.

This action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. and the Safety Appliance Act, 45 U.S.C.A. Sec. 11 et seq. by the respondent, plaintiff below, to recover damages for permanent and disabling injuries allegedly sustained by him while in the performance of his duties as a brakeman for the appellant railroad company, defendant below. Ten days after the alleged mishap, the plaintiff in consideration of $135 executed a general release discharging the defendant from all liability arising out of the accident. The defendant relied upon this release as a bar to the plaintiff's action but the jury found that the release had been entered into under a mutual mistake of fact as to the plaintiff's physical condition and awarded him damages in the amount of $4300.

Taking the evidence most favorable to the plaintiff, it appears that on June 26, 1948, while he was attempting to board one of the cars of the train on which he was working near Salida, Colorado, a rung or grab-iron which he grasped came loose causing him to fall to the ground, striking his back against a boulder; that he experienced no serious effect from the fall until the next morning when his back ached; that he thereupon consulted one Dr. Smith at a hospital in Salida maintained by the railroad employees who took X-ray pictures of his back, but being unable to find anything wrong with his back, gave the plaintiff some pills to take for his nerves; that the ache continued and consequently four or five days later he consulted Dr. C. R. Fuller at the same hospital who assured him that he would be 'all right'. Thereafter on July 6, 1948, one Merrill, the trainmaster's clerk at Salida sent the plaintiff to Pueblo, Colorado, to see the railroad's claim agent, M. V. Sayger. Before the plaintiff arrived Sayger telephoned Dr. Fuller and asked him whether the plaintiff was physically able to return to work. Dr. Fuller answered affirmatively. When the plaintiff reached Sayger's office the latter asked him if he was able to return to work and the plaintiff replied that he was able. There was no other discussion as to the plaintiff's condition or his injuries. There is a conflict in the testimony of the plaintiff and Sayger as to how they arrived at the amount of $135 as a settlement. The plaintiff testified that Sayger offered him $125, basing that amount on the loss of earnings sustained by the plaintiff. The plaintiff stated that he wanted $135 to which Sayger agreed.

The release which the plaintiff signed purported to release all claims which the plaintiff had or might thereafter have for any and all personal injuries sustained, whether then known or unknown, apparent or unapparent, and for loss of services. The release recited that the plaintiff understood that he could make no further claim against the railroad even though his injuries proved to be more serious or different than he then knew them to be.

The defendant's principal contention upon this appeal is that the plaintiff failed to allege or produce evidence of facts which entitled the jury to set aside the release executed by the plaintiff on the ground that it had been entered into by the parties under a mutual mistake of fact. Since the legal effect of a release from liability arising under the Federal Employers' Liability Act is governed by federal law, we must determine the merit of the defendant's contention according to that law. Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F.2d 757, 164 A.L.R. 387; Irish v. Central Vermont Railway, 2 Cir., 164 F.2d 837; Thompson v. Camp, 6 Cir., 163 F.2d 396.

The latest pronouncement of the Supreme Court of the United States dealing with the release of claims arising under the Federal Employers' Liability Act is Callen v. Pennsylvania Ry. Co., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242. There the plaintiff, a railroad brakeman, claimed to have suffered an injury to his back when he jumped for safety from a moving railroad car. For a consideration of $250 he executed a general release of all claims for personal injuries and for loss of time and expense which he then had or might thereafter have against the railroad. The release recited that the plaintiff read the agreement and understood that $250 was all he was to receive. Later the plaintiff commenced an action under the Federal Employer's Liability Act to recover damages for an alleged permanent back injury. He testified that he read and understood the release, knew what he was doing, and intended to waive any further claim that he might have against the railroad, but that he executed the release in reliance upon the claim agent's assurance that 'there was nothing wrong' and that he 'was all right to go back to the job'. The railroad had procured no medical examination of the plaintiff. While the claim agent admitted that at the time of the settlement he did not know that the plaintiff was suffering from the injuries which the doctors at the trial described, the railroad contended that it did not act from mistake as to the nature and extent of the plaintiff's injuries but settled with him for $250 because it believed there was no liability on its part. The Supreme Court affirmed the judgment of the Third Circuit Court of Appeals holding that under the evidence it was a jury question whether both parties acted from mistake as to the nature and extent of the plaintiff's injuries.

Another recent federal case in which a release was set aside on the ground of mutual mistake of fact is Thompson v. Camp, 6 Cir., 163 F.2d 396. There one Irving Camp while working as a switchman for the St. Louis-San Francisco Railway Co. suffered a brain concussion and other injuries rendering him unconscious for three days. He was hospitalized and treated by a doctor employed by a hospital association to which he (Camp) contributed dues for the privilege of receiving hospital and medical benefits. Over a month after the accident occurred, Camp was pronounced 'O.K.' by the doctor and told he could go back to work. Camp contacted the claim agent for the railroad who told Camp that there was no liability on the part of the railroad, but that the railroad would settle for $500 which was approximately the amount that Camp had lost in earnings. No discussion took place as to Camp's condition of health, what had been his trouble or when he would be well. Camp accepted the $500 and executed a general release absolving the railroad from liability for claims which he then had or might have in the future. Camp returned to work but died two weeks later from a cerebral hemorrhage. The administratrix of Camp's estate brought an action against the railroad in which the release executed by Camp was relied upon as a bar to the action. The jury in the trial court found that the cerebral hemorrhage suffered by Camp was the result of the brain concussion which he sustained. The jury also found that the release had been executed under a mutual mistake of fact and awarded the administratrix damages in the amount of $35,000. The Sixth Circuit Court of Appeals upheld the jury's finding because taking the evidence most favorable to the administratrix it appeared that Camp had been told by his doctor that he was 'O.K.'; that he could go back to work; that he would not require further medical treatment; and that he was not admonished by his doctor to restrict his physical activity. The evidence was also held to warrant the jury's conclusion that the claim agent was laboring under the mistake of fact that Camp had recovered from his injuries because he knew Camp had been released from his doctor's care and was making settlement in order to return to work, because there was no discussion as to his health or his condition to return to work, and because the settlement was based almost entirely upon Camp's loss of earnings.

A third recent case which is illuminative on the question involved in the instant case is Union Pacific Railroad Co. v. Zimmer, 87 Cal.App.2d 524, 197 P.2d 363, 365. There the defendant while working as a railroad switchman sustained an elbow fracture. A surgeon in the employ of the railroad operated on the arm and set it in a cast. When the cast was removed weeks later, the surgeon informed the defendant that 'Your arm isn't going to be stiff. Your arm is all right. You go down to Omaha, they want to see you; get it settled up and get back to work.' The defendant proceeded to Omaha where he was first examined by a private physician who informed him that his arm had not yet reached maximum improvement but would improve as time elapsed. The railroad's claim agent had the defendant's arm examined by two railroad surgeons who reported that the arm 'will come out all right' and that 'you will have a good arm anyway.' The following day the defendant in consideration of $965 released the railroad from all claims that he had or might thereafter have against it for injuries sustained, whether then known or unknown and whether greater than he then believed them to be. Two months later the plaintiff attempted to return to work but was unable to perform his duties as a switchman because of the impairment of his arm. Two operations were subsequently performed on the defendant's arm, but both proved unsuccessful and left him with an apparent permanent partial disability. The railroad expressed a willingness to pay the defendant an additional $2500 or $2600 for the additional wages lost, but no such payment was ever consummated. The defendant tendered re-payment of the consideration with interest thereon, and attempted to rescind the release on the grounds of fraud and mistake. The...