Lion Oil Refining Co. v. Albritton

Citation21 F.2d 280
Decision Date22 July 1927
Docket NumberNo. 7746.,7746.
PartiesLION OIL REFINING CO. v. ALBRITTON.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

H. S. Yocum, of El Dorado, Ark. (J. K. Mahony, W. T. Saye, and J. N. Saye, all of El Dorado, Ark., on the brief), for appellant.

Pat McNalley and Jordan Sellers, both of El Dorado, Ark., for appellee.

Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.

KENYON, Circuit Judge.

Appellee, an employé of appellant, brought suit in the state court, claiming damages for personal injury alleged to have been received while he was engaged in the service of appellant. The cause was removed to the United States District Court for the Western District of Arkansas. Appellant pleaded as one of its defenses three separate releases given by appellee, each of which recited that for a certain consideration, therein mentioned, appellee released and discharged appellant from all claims for damages. Thereupon appellee amended his complaint, alleged fraud in the procurement of the releases, and asked their cancellation. The cause was transferred to the equity side of the docket to try this issue. Upon hearing the court canceled the releases and this appeal followed.

Parties will be designated as in the lower court. The court made certain findings of fact which may be briefly summarized as follows: That plaintiff, while a fireman in the employ of defendant, was burned on the face by a backfire from the furnace; that he was sent by defendant to Dr. J. G. Mitchell for treatment, who found that plaintiff's eyes had not been injured by the burn; that, relying upon the statements of the physician that his eyes were all right, plaintiff executed the releases to defendant on payment of small sums, being largely compensation for lost time; that from the testimony before the court it appeared the optic nerve of one of plaintiff's eyes was affected and his eyesight impaired; that Dr. Mitchell never examined the optic nerve; that the physician did not intend his statements should apply to the condition of the optic nerve, but that the same were understood by plaintiff to apply to any defects to his eyes. The twelfth and thirteenth findings of the court were as follows:

"(12) The releases cannot be sustained in equity, in view of the limited application of the physician's examination and opinion by which plaintiff was led to believe that there was nothing which could or would affect the sight of his eye.

"(13) Upon repayment to defendant, or tender to it by the plaintiff, of the sums received by him from defendant, a decree will be entered setting aside said releases."

These findings were of date October 4, 1926, and decree canceling the releases was entered October 25, 1926, conditioned upon repayment to the defendant of the considerations paid therefor, amounting in the aggregate to $67.60, and providing that upon repayment of the said sum the cause be transferred to the law side of the docket for further proceedings.

Defendant claims (a) that the court permitted the introduction of parol evidence to vary a written instrument; (b) that the case could not be maintained, because no tender is pleaded or shown as to the second and third releases; and (c) that the evidence is not so clear, unequivocal, and certain as to warrant canceling the releases. We consider the questions in above order.

It is not a situation, as we view it, where an attempt is made to vary a written instrument by parol. Indeed that question is not here. Plaintiff claims that the releases were secured by fraud, and that no contract of release really exists because of mutual mistake; that the minds of the parties never met on any settlement for injury to plaintiff's eyes. Certainly, if the releases were entered into through fraud or mutual mistake, they should be avoided, and the facts could, of course, be shown by parol evidence. In G. N. Ry. Co. v. Fowler (C. C. A.) 136 F. 118, 121, a very similar case to this, the court said: "A mutual mistake of fact, or an innocent misrepresentation of the facts of the releasor's injury, made by the releasee's physician, may be effective to avoid a release induced thereby."

Tender was pleaded as to the first release, the consideration of which was payment of one-half time to plaintiff during the period of his supposed injury, which amounted to approximately $3. It is urged that the failure to plead or make tender as to the two other releases is fatal to the action. It seems to us that this question is not important, for the reason that due provision was made in the decree for a repayment or tender of what plaintiff had received. The court's conclusion was that, upon repayment to defendant, or tender to it by the plaintiff, of the sums received from defendant, a decree would be entered setting aside the releases. The decree itself provided that the releases would be canceled upon repayment to defendant of the consideration paid for the same, amounting in the aggregate to $67.60. This was sufficient under the circumstances of this case. Thackrah v. Haas, 119 U. S. 499, 7 S. Ct. 311, 30 L. Ed. 486; ...

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  • fornea v. Goodyear Yellow Pine Co.
    • United States
    • Mississippi Supreme Court
    • February 21, 1938
    ... ... Railroad ... Co. v. Cauthen, 241 P. 188, 48 A.L.R. 1447; Lion ... Oil & Ref. Co. v. Albritton, 21 F.2d 280; Texas & Pac ... Ry. v. Dashiell, 198 U.S. 521, 49 ... ...
  • Bullard v. Citizens' Nat, Bank
    • United States
    • Mississippi Supreme Court
    • March 25, 1935
    ... ... v. Cochran, 120 So. 823, 153 Miss. 237; C. & N.W. v. Wilcox, ... 116 F. 913; Lion Oil Co. v. Refining Co., 21 F.2d 280 ... The ... alleged expressions of opinions as to ... ...
  • Stefanac v. Cranbrook Educational Community
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    • July 5, 1990
    ...A.2d 1206, 1209 (Me.1980); Minneapolis, St. P. & S.S.M.R. Co. v. Chisholm, 55 Minn. 374, 57 N.W. 63 (1893); Lion Oil Refining Co. v. Albritton, 21 F.2d 280, 281-282 (CA 8, 1927); Leeper v. Beltrami, 335 P.2d 968 (Cal.App.1959); Reliable Life Ins. Co. v. Bell, 246 S.W.2d 371 (Mo.App.1952); B......
  • Bullard v. Citizens' Nat. Bank
    • United States
    • Mississippi Supreme Court
    • June 10, 1935
    ... ... v. Cochran, 120 So. 823, 153 Miss. 237; C. & N.W. v ... Wilcox, 116 F. 913; Lion Oil Co. v. Refining Co., 21 ... F.2d 280 ... The ... alleged expressions of opinions ... ...
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