Quapaw Min. Co. v. Cogburn
| Decision Date | 11 May 1920 |
| Docket Number | 9625. |
| Citation | 190 P. 416,78 Okla. 227,1920 OK 209 |
| Parties | QUAPAW MINING CO. v. COGBURN. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where personal injuries have been suffered, for which a liability exists, and a release therefor has been fraudulently procured for a grossly inadequate sum, an action for damages may be maintained without first obtaining a decree to rescind or to cancel the release.
Where the professional opinion relied on is not given directly by the physician to the patient but is communicated to him by a third person it is the duty of the latter to repeat it with entire correctness. And where the person responsible for the injury or the agent falsely represents to the releasor what a physician or surgeon thinks or has said about his injuries it is a fraud which will justify the rescinding of a release executed in reliance on such false statements.
Where the plaintiff in a personal injury case is induced to execute a release of damages by the false and fraudulent representations of a physician in the employment of the defendant, or sent to him by the defendant, that his injuries are but slight or temporary, the physician well knowing the contrary, the release will not be binding.
The credibility of witnesses is a matter lying peculiarly within the province of the jury.
Evidence examined and held sufficient to support the finding of the jury voiding the release of damages signed by the plaintiff.
Sections 3983 and 3984, Revised Laws 1910, prescribing certain duties of mine operators toward employés, including the duty of daily inspection, applies to the operators of lead and zinc as well as coal mines.
The violation of the duty expressly imposed by a statute upon the owner or operator of a mine to his employés or to the public is negligence which prima facie imposes liability for damages resulting therefrom.
Where an employé at work in a mine is injured by the falling of a loose rock, the employer's liability depends, not upon whether it had actual or constructive notice that the rock was loose, but upon whether it had failed to perform its statutory duty to secure loose rock from falling.
After a careful examination of the entire record it is held (1) That the evidence reasonably supports the verdict and judgment in favor of the plaintiff; (2) that the errors complained of based upon the rejection of evidence and the giving or refusing to give instructions have not resulted in a miscarriage of justice.
Error from District Court, Oklahoma County; Edward Dewes Oldfield Judge.
Action by Charles Cogburn against the Quapaw Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.
A Scott Thompson, of Miami, G. W. Earnshaw, of Joplin, Mo., and Asp, Snyder, Owen & Lybrand, of Oklahoma City, for plaintiff in error.
J. M Grubbs, of Cushing, for defendant in error.
This was an action for damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Hereafter, for convenience, the parties will be called "plaintiff" and "defendant" respectively, as they appeared in the trial court.
The plaintiff was employed by the defendant as a shoveler in its lead and zinc mine, and was severely injured by falling rock from the roof or side of the drift in which he was working. The plaintiff alleged in his petition that the defendant was negligent in failing to properly inspect the mine and in failing to provide timbers in the mine to prevent the rock which caused the injuries from falling, as required by sections 3983, 3984, 3988, and 4014, Revised Laws 1910.
The answer sets up a general denial, contributory negligence, assumption of risk, and a settlement. The reply denied the allegations of new matter in the answer, and alleged that the settlement was procured by fraud.
Upon trial to the jury there was a verdict for the plaintiff in the sum of $9,650 to reverse which this proceeding in error was commenced.
While counsel for the defendant have assigned numerous errors, they have summarized them all in their brief under four subheads, which for convenience we rearrange as follows:
(1) The plaintiff was precluded by his settlement from recovering.
(2) The evidence was not sufficient to authorize a verdict and judgment for the plaintiff.
(3) Errors in the rejection of evidence offered by the defendant.
(4) Error in the instructions.
By the settlement set up in the answer, which was procured by the defendant's claim agent some three weeks after the injury, the plaintiff, for the sole consideration of $2,000, released and discharged the defendant from all claims, demands, damages, actions, or causes of action on account of the injuries. The injuries inflicted upon the plaintiff consisted of numerous wounds upon his back, head, breast, and left arm; the injury to his back being of such a nature that it cut off all motor sensibility of his lower limbs, thus causing permanent paralysis from the waist downward. The fraud relied upon to avoid the settlement consisted of alleged false and misleading statements made to the plaintiff concerning his condition by the defendant's claim agent and by the defendant's physicians while the plaintiff was under their care. The plaintiff seems to have been in an unconscious or dazed condition for several days after his injury, and the settlement was consummated after some five or six visits of the claim agent, the negotiations commencing a few days after the plaintiff had regained consciousness, and continuing until the agreement was finally reached.
It is well settled in this jurisdiction that, where personal injuries have been suffered for which a liability exists, and a release therefor has been fraudulently procured for a grossly inadequate sum, an action for damage may be maintained without first obtaining a decree to rescind or to cancel the release. St. L. & S. F. Ry. Co. v. Richards, 23 Okl. 256, 102 P. 92, 23 L. R. A. (N. S.) 1032; St. L. & S. F. Ry. Co. v. Nichols, 39 Okl. 522, 136 P. 159; St. L. & S. F. Ry. Co. v. Reed, 37 Okl. 350, 132 P. 355; Enid Electric & Gas Co. v. Decker, 36 Okl. 367, 128 P. 708; C., R.I. & P. Ry. Co. v. Burke, 175 P. 547; C., R.I. & P. Ry. Co. v. Johnson, 175 P. 494.
The plaintiff testified that the claim agent frequently told him that he was not badly injured; that he would be all right and back at work again in a short time; that the claim agent based these assertions upon alleged conversations with the doctors to the effect that the plaintiff was not seriously hurt; and that he would fully recover in due time. The plaintiff also testified that the company doctor at Commerce, the home of the plaintiff, and Dr. Gregg, in the hospital at Joplin, where the plaintiff was sent for treatment by the advice of the local physician, also advised him to the same effect. The plaintiff further testified that he was ignorant of his true condition, and that the settlement was entered into in reliance on these statements. The claim agent and the doctors each flatly denied the statements attributed to him and testified that, on the contrary, he acted in the utmost good faith toward the plaintiff. Both of the doctors admitted that the plaintiff's condition did not warrant the statements ascribed to them. Dr. Wormington, who attended the plaintiff in his home at Commerce, testified that he knew the injuries to the plaintiff's back had caused paralysis, and that, if the injured nerve was not relieved by nature or by an operation, the injury would be permanent, and that it was in hope of relieving this condition by an operation that he sent the plaintiff to the Joplin hospital for an examination by Dr. Gregg.
Dr. Gregg testified in substance as follows:
Both doctors testified that they communicated the result of their investigation and their honest opinion as to his condition to the plaintiff, and that they never advised the claim agent to the contrary.
This evidence, it seems to us, joins a sharp issue of fact upon which the finding of the jury in favor of the plaintiff justifies the judgment entered thereon upon two grounds.
Black, in his Rescission and Cancellation of Contracts, § 390, lays down the following rule:
The same author in the same section is authority for the following rule:
"Where the plaintiff in a personal injury case is induced to execute a release of damages by the false and fraudulent representations of a physician in the employment of the defendant, or sent to him by the defendant, that his injuries are but slight or temporary, the physician well knowing the contrary, the release will not be binding, especially where the plaintiff was ignorant of such matters or was...
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