Malloy v. Chicago Great Western Railroad Co.

• Decision Date: 27 January 1919
• Docket Number: 32460
• Citation: 170 N.W. 481,185 Iowa 346
• Parties: J. F. MALLOY, Appellant, v. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellee
• Court: Iowa Supreme Court

170 N.W. 481

185 Iowa 346

J. F. MALLOY, Appellant, v. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellee

No. 32460

Supreme Court of Iowa, Des Moines

January 27, 1919

Appeal from Webster District Court.--R. M. WRIGHT, Judge.

ACTION to recover damages resulted in a directed verdict for defendant and judgment thereon. Plaintiff appeals.

Reversed.

H. W Stowe and Mitchell & Files, for appellant.

Carr Carr & Evans and Price & Burnquist, for appellee.

LADD C. J. EVANS, GAYNOR, PRESTON, and STEVENS, JJ., concur.

OPINION

LADD, C. J.

I.

The plaintiff was in the employment of defendant, in the evening of March 17, 1915, as one of the helpers in a switching crew. At about 10:30 o'clock, he attempted to get on a car, for the purpose of switching the same and placing it in a train which was being made up. The car was of a style known as the "Gondola" or Hart Convertible. The sides of the car are fastened with hinges at or near the top, with clasps at the bottom. When the clasps are broken or unfastened at the bottom, the sides swing outward: that is, when lifted by hand, or swung by a movement of the car. The car, at the time, was moving in a southeasterly direction, and, while carrying a lantern in his right hand, plaintiff put his foot on the sill-step in the right-hand side and at or near the front, and took hold of the side handrail with his left hand, and attempted to mount the car. As he did so, one of the seven doors constituting the side of the car swung out, caught him, and broke his hold; and, in his words, "My foot struck the ground, and I hung with this hand, and it jerked."

The petition alleged that, in falling, he sprained and lacerated the ligaments of his side, and ruptured a blood vessel or vessels in his lungs; that these injuries were caused by the negligence of the defendant, in permitting the car to be handled with the sides unfastened, knowing that, in such condition, it was dangerous, in failing to warn plaintiff of its dangerous condition, and in permitting to so remain thereon a sill-step of dimensions of that used; that, in attempting to go on the car, he pursued the customary method; and that his injuries were permanent: and it prayed recovery of damages suffered.

The answer admitted the employment, and that plaintiff was injured; but put the other allegations in issue, and pleaded that, on or about June 15, 1915, the parties hereto compromised the claims sued on, and that, in consideration of $ 450 paid him, plaintiff released all claims for damages; and prayed to go hence with its costs.

In reply, plaintiff pleaded that the alleged settlement had been obtained by fraud, and also that it was obtained in consequence of a mistake.

At the close of the evidence, defendant moved the court to direct a verdict in its favor, for that: (1) The evidence failed to show that the condition of the car, as alleged, had existed for such length of time as that defendant was charged with notice, and in the exercise of ordinary care must have repaired same prior to the injury; (2) the evidence was insufficient to show that the compromise was void by reason of fraud; (3) the mistake, if any, was insufficient to set the compromise contract aside, or to render it invalid; and (4) the evidence failed to show any mistake in plaintiff's condition as it in fact was. This motion was sustained, and the only issue presented in this case relates to the sufficiency of the evidence to raise an issue for the jury as to whether the settlement was based on fraud or mutual mistake.

In order to establish the alleged fraud and mistake, the plaintiff has testified to the injuries, as alleged, and to his treatment, first by Dr. Wasen, and afterwards by Dr. Saunders, of Ft. Dodge, and to having spit blood after the injury continually, except for three weeks, and related that the agent of the defendant at Ft. Dodge handed him a note dated June, 1915, from the superintendent, saying: "Please tell Malloy to come to Oelwein whenever he is ready, and get me by calling Jess Beale's residence on phone." Later, in the same month, he telephoned the agent to communicate a similar message to plaintiff, and on the 15th of the month, requested the agent to "phone Malloy to come to Oelwein at any time, now." Following this last communication, the plaintiff called on Doctor Saunders, the company's physician at Ft. Dodge, and informed him that the superintendent had sent for him, and inquired of the doctor concerning his condition. Plaintiff testified that the doctor said:

"'Did Kinzey send over after you?' and I said, 'Yes, sir.' 'Well,' he said, 'You are all right to go to work now.' He said, 'You are all healed up and everything. When did you spit any blood?' I said, 'I have not spit any blood for about three weeks, I think.' 'Well,' he said, 'you are all right then; but,' he said, 'if you ain't in any hurry, it would be all right to rest a few days longer.' 'Well,' I said, 'what would you call a few days, Doctor?' 'What would you say about the first of July?' he said. 'That is all right.' And he put his hand on my shoulder, and he said, 'You are just as good as ever, Jimmie.'"

The witness swore that he believed Dr. Saunders, and relied upon the statement made to him, and went to Oelwein that night, where he met the superintendent the next day, and:

"I told him I was all right, and he said, 'Yes, I heard you were.' I told him Dr. Saunders said I was all right, and he said he heard I was. We went into the office and out to the yard office, and he figured out my time. He showed me what time I had lost, and wrote out a check for it, and I signed a receipt; and that was all there was to it. We figured out what the understanding was, and the money we figured it out by the hours."

In signing the receipt, he relied upon what Dr. Saunders told him, and had no other knowledge of his physical condition. Later, he explained that, when he told the superintendent that Dr. Saunders said he was all right, the superintendent replied:

"Well, I have gotten a report from Dr. Saunders, too, and he said you was all right, and you can--we will settle up now, and you can go to work."

He was receiving 37 cents an hour, and the amount was arrived at by computing at that rate. He undertook to work, but was compelled to quit on account of his injury,--having started again to spit blood, and passing blood through the bowels, and continued in that condition up to the time of the trial. The testimony of the plaintiff's wife corroborated his account of the interview with Dr. Saunders.

From this evidence, the jury might well have found that both plaintiff and the defendant, acting through its superintendent, based their settlement on the statement by Dr. Saunders, that plaintiff was all right "to go to work, now," and that he was "all healed up," and that he was "just as good as ever." Had this been merely an opinion or prophecy as to what might happen in the future, or as to the future results of an injury, and that foretold by way of opinion or prophecy did not happen or result, what was said could not be treated as in the nature of a mistake of fact. Seymour v. Chicago & N.W. R. Co., 181 Iowa 218, 164 N.W. 352. A mistake of fact, to constitute the basis of rescission, must relate to some present or past event, and the vital question to be determined is whether what Dr. Saunders said were statements of fact, or merely matters of opinion. If these were statements of fact, it is not very important through what process of reasoning or proof they were arrived at,--whether from observation or deductions based on expert or scientific knowledge. The doctor, basing his conclusion on the patient's apparent condition and the history of his ailment, pronounced him then in a condition to go to work, "all healed up," "as good as ever." These statements related to the present, and described his condition in apt language as it then was; and we entertain no doubt in saying that they were statements of facts, and so intended.

In Haigh v. White Way Laundry Co., 164 Iowa 143, 145 N.W. 473, a statement by the defendant's agent that the tendons of plaintiff's hand were injured, and that her injuries were trifling, was held to be merely a statement of fact.

In Houston & T. C. R. Co. v. Brown, (Tex.) 69 S.W. 651, a release was obtained, based upon representations made by a physician representing the railway company, that the "bones of his arm had knitted and united together, and that the arm was well;" and the court held that these were statements of fact. In response to the contention that they were mere expressions of opinion, the court said:

"The effect of his statement was that the appellee was a sound man, and that the bones of his arms had knitted together, and that it would be all right. It is true that this statement may have been predicated upon his opinion as a medical expert; but the opinion is based upon the facts of which he possessed knowledge. The fact that the statement made by...