Parker v. Howarth

• Decision Date: 07 December 1976
• Docket Number: No. 48937,48937
• Citation: 340 So.2d 434
• Parties: Jessie Lee PARKER v. J. H. HOWARTH, D/B/A Circle H. Farms.
• Court: Mississippi Supreme Court

Page 434

340 So.2d 434

Jessie Lee PARKER v. J. H. HOWARTH, D/B/A Circle H. Farms.

No. 48937.

Supreme Court of Mississippi.

Dec. 7, 1976.

Jacobs, Griffith & McIntosh, Charles C. Jacobs, Jr., Cleveland, for appellant.

Campbell & DeLong, Roy D. Campbell, Jr., Greenville, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

WALKER, Justice, for the Court:

Jessie Lee Parker filed this action in the Circuit Court for the Second Judicial District of Bolivar County, Mississippi, to recover damages resulting from having been run over by a tractor during the course of his employment with J. H. Howarth, the defendant. Howarth pleaded in bar of the action a release signed by Parker and his wife and moved the court to dismiss the suit. The parties agreed to submit the question of the validity of the release to the judge sitting without a jury. After an evidentiary hearing, the judge granted Howarth's motion to dismiss.

Parker argues in effect that the trial court erred in granting Howarth's motion to dismiss since the evidence is clear and convincing that Parker was overreached, deceived and fraudulently induced into signing the release.

The evidence reveals that on April 1, 1972, while working on Howarth's farm, Jessie Parker was run over by the rear wheel of a heavy 4020 diesel tractor, the wheel being approximately five to six feet in diameter. He was treated at the Greenville Hospital by Dr. Llyod A. Merbitz, who testified by deposition that Parker had suffered severe fractures of the pelvis, had hemorrhaged internally until he was in a state of shock and came near to death, and his blood showed evidence of fat emboli, probably as a result of the fracture. The doctor explained that emboli can lead to unconsciousness or death, and in Parker's case, 'It led to considerable confusion (of the mind).' Parker was resuscitated, given blood and medication for pain, and it was necessary to insert a catheter into his bladder. The fractured pelvis was treated by placing Parker in a sling-type affair which consisted of a strap around the pelvis to which was attached five-pound weights which held him in a fixed position for about two weeks for healing purposes. After twenty-nine days of hospitalization, during which time, according to the doctor's testimony, Parker was in pain and received medication for pain, he was released from the hospital on crutches on April 29, 1972, to go home to recuperate. X rays and a subsequent examination by Dr. Merbitz on June 9, 1972, revealed considerable new bone formation around the sacroiliac joint, which was explained as the joint between the pelvis and the spine itself, as well as new bone formation in the general area of the fractures. The doctor also found numbness in Parker's right leg and some elevation of the pelvis on the right side of approximately one-half to three quarters of an inch. He also had some sciatica which is pain involving the sciatic nerve; was experiencing some neurological deficit with dullness to pinprick in the S-1 and S-2 root areas, and in the L-4 root. He also had some dullness to the right side of his penis; had weakness of the dorsiflexors of the big toe, i.e., the muscles which pull the big toe up. The doctor was of the opinion that complaints of pain were justified in Parker's condition and that Parker's pain could be caused by the new bone formation in the area of the nerve roots and that Parker may have some pain for his condition the rest of his life. When the doctor was asked whether Parker had any permanent disability, he said, 'I would rate him at 25% permanent impairment of physical function of the body as a whole.'

At the time of the accident, Howarth had in force a Farmer's Comprehensive Personal Liability Insurance Policy with United States Fidelity and Guaranty Company which provided, among other things, that the Company was obligated to pay 'all reasonable medical expenses incurred within one year from the date of the accident' when an injury to a farm employee arose 'out of and in the course of his employment.' The parties stipulated that this policy covered such accidents regardless of whether Howarth could be held legally liable.

The alleged release was obtained by Boyd Williams, an adjuster for United States Fidelity & Guaranty Company. Williams is a college graduate and has served in the United States Army. He admittedly was an inexperienced claims adjuster, had received little or no training to be an adjuster, and testified that this was the first or one of the first cases that he handled.

Parker was forty years of age, unable to read or write, except to sign his name, and had a third grade education.

The record shows that Williams visited Parker on several occasions. While Parker was in the hospital, Williams obtained his signature on a medical authorization, allowing him access to medical records and doctor's reports. Moreover, Williams admitted that he knew that Parker had received serious injuries. Williams later visited Parker at home, about a week before obtaining the release, and asked him him if he needed any money. Parker told Williams that he did not, although he had borrowed $75.00 from the defendant, Howarth, and his wife's son was 'hoping him pay the bills.' Williams saw Parker for the last time on May 10, 1972, when he obtained the release in question. His account of that visit was that he knew that Parker was in pain and that he assumed that Parker took drugs for the pain; that Parker was lying in bed during the interview although he seemed talkative and alert. In explaining the purpose of his visit on the day to Parker, Williams testified, 'We assumed that this was a case of liability, and in doing so, it was my case and I had to explain to him what he was entitle to.' Williams said that he explained to Parker, 'I told Jessie that I would give him $800.00, not including his medicals; this $800.00 was for pain and suffering and loss of wages.' Williams testified that he explained to Parker that all his medical bills would be taken care of whether he signed the release or not. This was denied by Parker and his wife. It is pertinent to note that none of the medical bills were paid by the insurance company prior to obtaining the release from...