Saunders v. New Orleans Public Service, Inc.
| Decision Date | 13 May 1980 |
| Docket Number | No. 10687,10687 |
| Parties | Mary Elizabeth SAUNDERS v. NEW ORLEANS PUBLIC SERVICE, INCORPORATED and Powell Blair, Jr. |
| Court | Court of Appeal of Louisiana — District of US |
Harry T. Widmann and William R. Alford, Jr., New Orleans, for plaintiff-appellee.
James Maher, III, New Orleans, for defendants-appellants.
Before REDMANN, LEMMON and BOUTALL, JJ.
Defendants, a public carrier and its driver, have appealed from a judgment which awarded plaintiff $2,900.00 in damages for personal injuries sustained as a passenger on a city bus. On appeal defendants' only assignment of error relates to the interlocutory judgment which overruled their exception of res judicata and invalidated the earlier contract of compromise as one in which consent was produced by mutual error.
At the trial of the exception defendants' claims representative testified: He called plaintiff on the day after the accident, but she indicated she would like to wait a few days before discussing the claim. After several calls plaintiff came to his office a week after the accident and agreed to be examined by a doctor in the company's medical department. When she returned after the examination, he called the doctor, who recited a diagnosis of a minor contusion of the shoulder which should resolve in one week. Relating the diagnosis to plaintiff and inquiring if she was ready to negotiate settlement of the claim, he offered her $100.00 in compromise, which she accepted without hesitation.
Plaintiff, the only other witness, testified: The doctor's examination was strange in that he stood across the room without touching or examining her, or asking her to remove the long-sleeved blouse which covered the egg-shaped lump on her right arm. The doctor simply instructed her to raise her arms above her head and asked if the movement produced pain, to which she responded affirmatively. He then told her she had a minor muscle bruise and "should be out of difficulty in a week or so". Relieved by the assurance of a professional medical officer, she was happy to accept $100.00 offered by the adjuster "for her troubles".
The doctor did not testify, and his report (introduced without objection) gave no details of the examination, except that "tenderness over right shoulder" was listed under "Objective Evidences of Injury".
Finding as a fact that the doctor did not truly conduct a physical examination, the trial court concluded the parties would not have settled the case for $100.00 if they had known what plaintiff's "true condition" was or that the doctor had not examined plaintiff in reporting his diagnosis and prognosis. The Court therefore overruled the exception.
At the subsequent trial on the merits it was established that when plaintiff's complaints after the November 10, 1975 accident continued, she consulted two other physicians before finally being examined on February 16, 1976 by an orthopedic surgeon who diagnosed pre-existing bursitis aggravated by trauma and prescribed medication which accomplished relief and eventual recovery. The trial court awarded $2,900.00, and defendants appealed, limiting the issues to the validity of the contract of compromise.
Compromises are favored in law, and the burden of proving the invalidity of a compromise is on the party attacking the contract. The mere fact that a bad bargain was made is not in itself a sufficient ground for invalidating the compromise. However, since an essential element of every contract is consent by the parties with regard to a matter mutually understood, reciprocally communicated, and resulting from a free and deliberate exercise of the will, a contract may be invalidated if the consent was produced by error. C.C. art. 1819. Nonetheless, the only error that invalidates a contract is an error in some point which was a principal cause for making the contract. C.C. art. 1823.
In the present case defendants contend that an incorrect prognosis (as opposed to diagnosis) is simply an erroneous opinion and is not an error of fact which invalidates a compromise. Sec. 71 A.L.R.2d 82 (1960). However, the compromise in this case was not invalidated by the trial court because it was based on an error involving an incorrect prognosis of the future consequences of a correctly diagnosed present injury, but because it was based on mutual error that a proper medical examination had been performed and...
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