McCroskey v. The Proctor & Gamble Manufacturing Company

• Decision Date: 09 December 1922
• Docket Number: 24,064
• Citation: McCroskey v. The Proctor & Gamble Manufacturing Company, 211 P. 133, 112 Kan. 434 (Kan. 1922)
• Court: Kansas Supreme Court
• Parties: DAVID A. MCCROSKEY, Appellee, v. THE PROCTOR & GAMBLE MANUFACTURING COMPANY, Appellant

211 P. 133

112 Kan. 434

DAVID A. MCCROSKEY, Appellee, v. THE PROCTOR & GAMBLE MANUFACTURING COMPANY, Appellant

No. 24,064

Supreme Court of Kansas

December 9, 1922

Decided July, 1922.

Appeal from Wyandotte district court, division No. 2;FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

COMPENSATION ACT--Written Release by Workman--Petition to Set Aside Release on Ground of Mutual Mistake--Petition Not Demurrable.A petition by an injured workman for cancellation of a written release of his employer from liability, alleged to have been executed under a mutual mistake of fact, examined, and held sufficient against a demurrer on the ground recitals of the release control allegations of the petition, on the ground conclusions are stated instead of facts, and on the ground sufficient facts to constitute a cause of action are not stated.

Arthur J. Stanley, Guy E. Stanley, both of Kansas City, R. R. Brewster, and W. B. Bostian, both of Kansas City, Mo., for the appellant.

Charles O. Littick, of Kansas City, for the appellee.

OPINION

BURCH, J.:

The action was one for compensation.The plaintiff had settled with the defendant, and had given a release.It was alleged the release was given under a mutual mistake of fact, and a part of the relief prayed for was that the release be canceled.A demurrer to the petition was overruled, and the defendant appeals.

The portion of the petition against which the demurrer was directed reads as follows:

"Plaintiff further states that at the time of the execution of said release, there was a mutual mistake of fact made by the plaintiff and defendant as to the real character and extent of plaintiff's existing injuries; that said right foot was bruised, mashed, mutilated, and lacerated, and the skin, flesh, muscles, tendons and ligaments thereof, and also fractured, broke and injured some of the bones of said right foot, and that said injured foot at said time showed superficial indications of healing, and said plaintiff and defendant were mutually mistaken and did not believe plaintiff's injuries were of a serious and permanent character; that by reason of the presence and indications of superficial and temporary healing of said injuries, the plaintiff and defendant believed the plaintiff's existing injuries at that time were of a minor and insignificant nature, and he would be able to go to work shortly thereafter, and the defendant therefore paid the plaintiff accordingly; plaintiff further states that his injuries were at the time of the execution of said release of a serious, permanent, and lasting nature, and that the consideration paid plaintiff by the defendant was grossly inadequate."

It is said recitals of the release control allegations of the petition.The release contains the following statement:

"I further state that no false statements of any kind were made to me and no inducements held out to me, and I rely on no statements whatever in making this release, and especially state that I do not rely on any statements made to me by any physician or surgeon concerning my condition."

This statement is perfectly compatible with mutual mistake respecting the plaintiff's physical condition at the time the statement was made and at the time the release was executed.

Appended to the release is the following statement, signed by two persons other than the plaintiff:

"We hereby certify that the above and foregoing agreement was read to David...