Pope v. Bailey-Marsh Co.

• Decision Date: 09 February 1915
• Citation: 29 N.D. 355,151 N.W. 18
• Parties: POPE v. BAILEY-MARSH CO.
• Court: North Dakota Supreme Court

29 N.D. 355

151 N.W. 18

POPE

v.BAILEY-MARSH CO.

Supreme Court of North Dakota.

Dec. 14, 1914.

Rehearing Denied Feb. 9, 1915.

Syllabus by the Court.

In order to warrant the avoidance of a formal written agreement of settlement and release upon the grounds of fraud and misrepresentations, the evidence of such fraud or misrepresentations must be clear and convincing and beyond reasonable controversy.

The same degree of proof is required in order to successfully impeach such settlement and release upon the ground of mental incapacity of plaintiff to enter into such contract.

Evidence examined, and held insufficient to warrant the court or jury in avoiding such settlement and release, and it was accordingly error to deny defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

Appeal from District Court, Pierce County; A. G. Burr, Judge.

Action by John W. Pope against the Bailey-Marsh Company. From judgment for plaintiff and denial of defendant's motion for judgment notwithstanding the verdict, defendant appeals. Reversed, with directions to dismiss the complaint.Palda, Aaker & Greene, of Minot, and Watson & Abernethy, of St. Paul, Minn., for appellant. E. R. Sinkler and Greenleaf, Bradford & Nash, all of Minot, for respondent.

FISK, J.

On February 23, 1912, plaintiff met with a serious personal injury while in defendant's employ, and he seeks by this action to recover damages therefor, basing his claim thereto upon the alleged negligence of the defendant in failing to provide him with a reasonably safe place to work. The answer puts in issue the alleged acts of negligence set forth in the complaint, and alleges that the plaintiff's injury was the direct and proximate result of plaintiff's own negligence; also that plaintiff knowingly assumed the risks incident to such employment. As a further defense, it is alleged that a full settlement was had between the parties of the alleged claim for damages, and that the plaintiff, for value, executed and delivered to defendant a release in full of all claims for damages occasioned by such injury. By way of reply plaintiff alleged, in substance, that on the date such purported release was executed he was lying in a hospital in Minot, suffering excruciating pain as the result of his injuries, and was unfit to transact any business, and, on account of such pain, he was at times unconscious and did not realize what was going on around him; that on such day two men came into his room at the hospital and represented that they desired to obtain from him a statement as to the manner of receiving his injuries, and, after asking plaintiff certain questions, they requested him to sign a statement which he signed, believing the same to be a statement merely relating to his injuries, but which document he believes was the release aforesaid; and that he was thereby falsely and fraudulently deceived and misled by defendant's agents. He further alleges that he did not, on the 29th day of February, 1912, nor at any time, agree with the defendant to release and discharge it from any or all liability which had or might thereafter accrue by reason of such injuries, and that he never at any time agreed with defendant to settle said matter for $100 or for any sum whatsoever. These issues were tried to a jury, resulting in a verdict and judgment in plaintiff's favor. A motion for judgment non obstante or for a new trial was made and denied, and judgment entered, to reverse which judgment and order this appeal is prosecuted.

[3] Appellant's specifications challenge, in several particulars, the sufficiency of the evidence to justify the verdict, and they also call in question the correctness of numerous rulings and instructions, as well as refusals to instruct. As we view the record, it will be necessary to notice only the specification challenging the sufficiency of the evidence to show that the release aforesaid was obtained through fraud or misrepresentation on defendant's part, or that plaintiff was not, at the time of executing such release, capable of understanding the legal effect thereof. Such release was executed on February 29, 1912, being six days after the plaintiff's injuries and about six months prior to the bringing of this suit, and is in the following words:

“Whereas, the undersigned was injured on or about the twenty-third day of February, 1912, under circumstances claimed to render Bailey-Marsh Company, a corporation, liable in damages; and whereas the said Bailey-Marsh Company denies liability therefor, and whereas both parties desire to compromise and have agreed to adjust and settle the matter for the sum of one hundred dollars ($100.00), and the further payment of the bill at St. Joseph's Hospital and the bill of Dr. Pence for services: Now, therefore, in consideration of said sum, the receipt of which is hereby acknowledged, and the further payment of said hospital and doctor bills, I, John W. Pope, do for myself, my heirs, executors and administrators, hereby compromise said claim and release and forever discharge said Bailey-Marsh Company, a corporation, its successors and assigns from any and all liability which has accrued or may hereafter accrue to myself, my heirs, executors and administrators by reason of said injuries or damages occurring therefrom. And it is fully understood and agreed that there is no agreement on the part of the said Bailey-Marsh Company to do or omit to do any act or thing not herein mentioned.

Witness my hand and seal at Minot, North Dakota, this twenty-ninth day of February, 1912. John W. Pope. [Seal.]

Witnesses:

A. R. Earl.

Charles A. Edblom.

State of North Dakota, County of Ward-ss.: On this twenty-ninth day of February, in the year one thousand nine hundred and twelve, before me personally came John W. Pope, to me known, and known by me to be the individual described in, and who executed the foregoing instrument, and he acknowledged that he executed the same. Charles A. Edblom,

Notary Public, Ward County, N. D.

The facts surrounding the settlement which culminated in the giving of such release are detailed by the various witnesses, and, in substance, are as follows:

Plaintiff admits the payment to him of $100 on February 29th, and the undisputed evidence shows that defendant in the following June or July paid plaintiff's hospital bill, amounting to $261, and his doctor's bill, amounting to $325. The witness Edblom, the notary public who took plaintiff's acknowledgment on such release, testified to his calling upon the plaintiff at the hospital in company with one Thompson, and testified to the fact that plaintiff signed and acknowledged such instrument in his presence, and that he (the witness) asked plaintiff if he had read and understood the contents of the document, and if it was made and executed of his free will, to which plaintiff nodded, yes, whereupon the witness affixed his signature and seal to the certificate of acknowledgment. This witness also testified that when he called at the hospital to take such acknowledgment, he observed plaintiff's apparent physical condition and heard him talk, and in the conversation between them the plaintiff responded promptly to questions asked him, and-

from what I saw of the man in that transaction, he seemed to be able to understand what was going on around him, and, in my judgment, he was in full possession of his mental faculty.”

Plaintiff in rebuttal testified:

“I heard Mr. Edblom's testimony. I do not remember that I signed any papers. Q. Did they ask you to sign a written statement? A. He did. I do not remember who was present there. I was, at that time, in lots of misery and pain and agony. As near as I can remember, they came up to me and says, ‘We have a statement here we want to make to you,’ and started to tell me about this statement. They asked me to sign a statement. I do not remember that I read any papers. I do not know the contents of any papers I signed. They told me it was a deposition of my accident here. They did not tell me it was a release. As near as I can remember, it was a statement of what happened in the basement, acts surrounding the accident. That is what I thought I was signing. He said, ‘We are going to pay your doctor's bill here, and then we will give you time for two months, of $96.00,’ and he says, ‘We will put it up to $100, and that will keep you up until such time as you can get around, and the doctor says you will be out inside of two months, and that will hold you up until you get out of the hospital.’ I received $100 from them. It was for what things I had demanded, or something similar to that. Q. For the time you had lost? A. For the time I had lost. Q. Or would lose? A. Or would lose from that time up to the time I could go to work. I did not intend to sign any instrument, and would not have signed any instrument, at that time, for a settlement, if I had known what the instrument was. I first learned that I had signed Exhibit D when you (Sinkler) got a letter from the company. You sent for me to come to your office, and there you handed me that paper. That is the first I learned or knew that they claimed I had settled this matter.”

On cross-examination he testified:

“I do not remember seeing Thompson and Earl in the hospital at about the time this statement was talked about. I do not remember the occasion when they called. I do not remember seeing them. I remember these two men, but I do not remember who they were. I remember two men being beside the bed. I didn't remember at the time who they were. I knew Earl when I was down there at work. I did not recognize him for some time afterwards. I do not remember him being there when this statement was made. I do not remember that they told me what was in it. I do remember they told it was a deposition of what occurred at the time of the accident. It was a statement I was to make to them of my recollection of what happened at the time of the accident;...