Prince v. Kansas City Southern Ry. Co.

• Decision Date: 10 April 1950
• Docket Number: No. 1,No. 41512,41512,1
• Parties: PRINCE v. KANSAS CITY SOUTHERN RY. CO
• Court: Missouri Supreme Court

Page 568

229 S.W.2d 568

360 Mo. 580

PRINCE v. KANSAS CITY SOUTHERN RY. CO.

No. 41512.

Supreme Court of Missouri, Division No. 1.

April 10, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1950.

Cyrus Crane, Winston H. Woodson, James F. Walsh, Kansas City, for appellant, Kansas City Southern Ry. Co.

F. M. Kennard, A. C. Popham, David Trusty, Sam Mandell, Kansas City, for respondent, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.

ASCHEMEYER, Commissioner.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., to recover damages for personal injuries. The answer pleaded a release executed by respondent. The reply raised an issue of fraud in the procurement of the release and prayed that it be set aside. Respondent recovered a judgment for $44,400 from which this appeal has been taken.

Aside from the release, which appellant asserts precluded recovery, appellant does not question the sufficiency of the evidence to make a submissible case upon the allegations of the petition. Respondent, a Negro, was employed by appellant as a blacksmith's helper in its shops in Shreveport, Louisiana. He was injured there on June 16, 1944, while assisting in carrying a channel iron. The iron weighed about 600 pounds; was 10 or 12 feet long; was about 1 foot wide; and was approximately 1 1/2 inches in thickness. He was assisting two other men in carrying the iron. He was at the rear end alone, and the other two men (Mitchell and Franklin) were on the front end. It slipped out of Mitchell's hands. Franklin could not hold it and the front end fell to the floor. The rear end hit respondent between the heart and the navel, and a corner of the iron hit him on the left side and groin. The iron 'snatched' him down and carried him 'down in a twist.' His right hand was caught under the iron. Other facts will be stated in the course of the opinion.

It is admitted that, for a consideration of $600, respondent executed a release on December 4, 1944, in the claim office of appellant at Shreveport, Louisiana. Respondent contends that the release was invalid and was properly set aside by the jury's verdict, because he was induced to execute the release by his reliance upon certain misrepresentations concerning his physical condition made by Dr. Walter P. Miller, Chief Surgeon of the Kansas City Southern Employees' Hospital Association, who was also a surgeon and representative of appellant, and by his reliance upon misrepresentations made to him by the claim agent, C. H. Mitchell, at the time the release was executed.

The respondent's evidence upon these issues was as follows: He was a patient in Wheatley Hospital in Kansas City, Missouri, from September 29 to October 29, 1944. On October 9, 1944, Dr. Miller operated on him to repair a hernia he had sustained in the accident. During his residence in the hospital, he had pain in his left side, in his chest and back, and felt coldness in his right side. He had been spitting up and passing blood. Practically every time he saw Dr. Miller, both before and after the operation, he mentioned these things to him. About the time he was ready to leave the hospital, he told Dr. Miller again about the pain in his chest and back, the coldness in his side and chest, and about passing blood. Dr. Miller told him, 'it was just a natural symptom from the operation. He said I was in great shape.' Dr. Miller told him to go to the claim agent and make a settlement. He said, 'You have no injury or condition that could cause you from performing the duties you have performed before you were hurt.' Dr. Miller told him he had no permanent injury; that he was strong; that he could return to work on December 1, 1944; and that 'He could lift a corner of a building.' Respondent told the doctor he did not think he could return to work on December 1, 1944, unless he felt better.

Two witnesses who occupied adjoining beds in Wheatley Hospital testified that they heard respondent complain to Dr. Miller about pain in his side and chest. One of these witnesses stated that Dr. Miller told respondent there was nothing wrong. 'It was part of the operation and he would be all right.' The other testified: 'The doctor told him to go right back to work, the first of December to go back to work, do whatever they wanted him to do, if they asked him to lift the side of the building 'you could lift the side of the building.'' He also stated that Dr. Miller told respondent he had a cold in his chest.

On December 4, 1944, respondent saw the claim agent, C. H. Mitchell, in Shreveport. He related to the claim agent what Dr. Miller had told him about his physical condition. Mitchell said he had discussed respondent's case with Dr. Miller and stated, 'whatever Dr. Miller told me I could rely on, he would never tell me wrong.' On cross-examination respondent testified that Mitchell said, concerning Dr. Miller: 'He said he was a reliable, good doctor, he said whatever Dr. Miller tells you you can rely on.' After some negotiations, they agreed on $600 in settlement; respondent signed a release and received a check or draft. Respondent did not read the release but Mitchell volunteered to read it to him. In doing so, he failed to read that portion of the release which recited: 'In making this settlement and release, I am using my own judgment and am not relying upon any statement or representation made by any agent, employee or physician of said Railway Company or other companies.' At the dictation of the claim agent, respondent wrote on the bottom of the release, 'I understand that I am settling my claim against the K. C. S. Ry. Co.'

We quote some of respondent's testimony concerning his reliance upon the representations made to him:

'Q. Now, at the time he (Dr. Miller) told you that this coldness in the chest and side was only a temporary symptom of your operation you were still at the Wheatley? A. Yes, sir, still at the Wheatley.

'Q. All right. Did you belive that, rely on what he said? A. Yes, sir, I believed him.

'Q. When Dr. Miller kept telling you to go to the claim agent what conversation did you have with him as to whether or not you would be able to do your work afterward? A. Well, after he told me to go to the claim agent and make a settlement I asked him what he thought about my condition?

'Q. What did he say? A. He told me, 'You have no injury or condition that could cause you from performing the duties you have performed before you were hurt.'

'Q. Did you rely on that? A. I relied on that.

'Q. Did you believe what he told you? A. I believed him.

'Q. Now, O. C., I want you to tell these folks whether or not at the time you made this settlement you were relying solely upon the representations and statements of the claim agent and Dr. Miller? A. I was.

'Q. Were you relying upon any other doctor or opinion of any other doctor? A. No, sir, I wasn't.

'Q. Except for going to these other doctors for temporary relief had you ever asked any of them to give you an opinion as to the future or as to whether you were permanently injured or had you asked for their opinion at all? A. No, sir, I hadn't.

'Q. Had they ever given you any opinion? A. No.

'Q. You tell this jury you were not solely on Dr. Miller? A. Dr. Miller and solely on Dr. Miller? A. Dr. Miller and the claim agent.

'Q. But for the representations would you have signed this release? If they hadn't made those representations to you would you have signed this release? A. No, sir.

'Q. You know those three pains were not symptoms of the operation? A. It got worse after I was operated on.

'Q. You had them before the operation, too? A. I had pain, yes, sir.

'Q. You knew they were not entirely from the operation? A. Caused from the accident, at the beginning, yes, sir.

'Q. Started from the accident? A. Yes.

'Q. You knew that you had those pains before you ever came to Kansas City? A. Yes, sir.

'Q. And you knew you had those pains before the operation? You knew they were not a symptom of the operation? A. I knew the accident was the cause of the pain starting but I had never been operated on and the doctor told me after he operated on me I was in good shape. He said those pains and things were symptoms from the operation, I was in good shape.

'Q. You knew better than that? A. I didn't know that.'

The appellant's testimony is in sharp conflict with respondent's evidence. Dr. Miller denied making the statements attributed to him and testified that respondent did not complain of his chest and back while in the hospital. Other evidence corroborates his testimony that no such complaints were made. Mitchell, the claim agent, not only denied making the statements attributed to him, but testified that the settlement was negotiated by Sam P. Burford. Burford corroborates Mitchell's testimony.

Appellant argues that respondent failed to make a submissible case on the fraudulent procurement of the release because: (1) the evidence shows, as a matter of law, that respondent did not believe or rely upon the statements of Dr. Miller and the claim agent, and (2) the statements of Dr. Miller and the claim agent were expressions of opinion and not statements of fact.

Was there substantial evidence of respondent's belief in and reliance upon the statements made? Appellant argues that since respondent testified repeatedly that he had pain in his side, chest, and back from the time of his injury and through the time he executed the release on December 4, 1944, he could not have believed Dr. Miller's statements that the pain was a natural symptom of the hernia operation. Appellant points out that respondent was examined and treated by other doctors prior to December 4, 1944, including a Dr. DeLee, who was his own choice, and that more than a month elapsed from the time respondent last talked to Dr. Miller and the day when he settled his case. When this case was before the Court on an earlier appeal,...