Seymour v. Chicago & Northwestern Railway Co.

• Decision Date: 03 October 1917
• Docket Number: 30653
• Citation: 164 N.W. 352,181 Iowa 218
• Parties: BERNARD R. SEYMOUR, Appellant, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

164 N.W. 352

181 Iowa 218

BERNARD R. SEYMOUR, Appellant, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellee

No. 30653

Supreme Court of Iowa, Des Moines

October 3, 1917

Appeal from Clinton District Court.--A. J. HOUSE, Judge.

PLAINTIFF was injured while in the employ of the defendant and seeks to recover damages therefor; his claims are put in issue generally, and there is a special defense that there has been a settlement and release. Verdict was directed against the plaintiff, and he appeals.

Affirmed.

A. W Walliker, for appellant.

Ellis & McCoy, James C. Davis and Henry L. Adams, for appellee.

SALINGER J. GAYNOR, C. J., LADD and EVANS, JJ., concur.

OPINION

SALINGER, J.

I.

If verdict was rightly directed against plaintiff because of settlement and release, there is no occasion to go into whether he had a case for a jury on the claim made by his petition. So we give precedence to whether plaintiff made a jury question on the plea of avoidance interposed by him against his release.

It is affirmatively defended and admitted that, on the 30th day of September, 1913, a written settlement was entered into and signed by the plaintiff which acknowledges the receipt of $ 500 in full satisfaction, contains a statement that the signer has read and understands this release, and that no contract or promise of employment is made with him. It is replied that the settlement is, inter alia, not binding because of certain things done by Piersol, assistant claim agent of defendant. The claim is, in effect, that Piersol told plaintiff, with fraudulent intent to deceive and to induce the settlement made, that plaintiff was making a big fuss over his injury, that same was trifling, and that plaintiff should have been at work in the freight service for the past six weeks. As against the motion to direct verdict, we must hold that Piersol did say this. Plaintiff contends that, on the authority of Haigh v. White Way Laundry Co., 164 Iowa 143, 145, 145 N.W. 473, such statement made a jury question of whether the settlement was induced by fraudulent representations. We do not so read the Haigh case. It does not deal with the naked statement that the injuries were trifling, but with such statement plus one that "the tendons of the hand were not injured." It excludes the idea that a fraudulent representation can be made out of a statement of an opinion without a statement of a fact, and without an intent to deceive. The case came here upon a ruling on demurrer, and so was admitted that the representation complained of was made with the intent to deceive and mislead. It does not hold that saying that an injury was trifling will send fraudulent representation to the jury, but that such a statement and the false assertion of a fact, both uttered with intent to defraud, will do so. And see Houston & T. C. R. Co. v. Brown, (Tex.) 69 S.W. 651; Douda v. Chicago, R. I. & P. R. Co., 141 Iowa 82, at 87, 119 N.W. 272. The greatest length to which the authorities have gone is found in Hirschfeld v. London, B. & S. C. Ry., 2 Q. B. D. 1, in which it is said that, if the statement to induce the settlement is that the injuries are trivial and temporary, and such representation is fraudulent, the settlement may be disregarded.

But that the question is not foreclosed does not relieve us from dealing with it. May we say that the statements on part of Piersol were a basis upon which a jury might rightfully avoid the settlement? Piersol is not shown to be a physician, and the record fairly discloses that he was not one. He made no physical examination of plaintiff. The plaintiff was injured on June 1st. From then to September 30th, when Piersol spoke, plaintiff had personal knowledge of his own condition. It does not appear that Piersol ever had such knowledge. Plaintiff was advised by others than Piersol that plaintiff was able to do light work. He desired to do such work, and, on August 19th, so advised the officer to whom Piersol acted as assistant. As early as August 5th, Piersol advised he would look into plaintiff's case. Some weeks before Piersol spoke, he sent plaintiff a check for $ 160, and asked that a release sent be executed in consideration. In writing Piersol's principal on August 19, plaintiff asks work, and advises that a doctor had promised that, if plaintiff got work he could do, the doctor would give him a release, i. e., permission to do such work, and that plaintiff has left said check and release at a stated place pending reply to this his letter. On August 25th, Piersol answered that the $ 160 was sent because of the application for assistance that plaintiff had made. He adds that it does not appear that the company was in any way in fault or liable. On September 8th, plaintiff wrote Piersol, reiterating that he would try passenger work until his shoulder got so he could go back on freight. He added:

"As I have been out of work for a long time, and will have some expense now in going to work, would like that you advance me payment for the time I have lost, pending our final settlement."

This letter was answered by one of Piersol, dated September 10, 1913, and which says, concerning request to pay for lost time:

"Until such a time as a settlement is made, I have to say that I thought I was very explicit when you were in my office, and you fully understood that we cannot to anything of this kind at all; that if we pay you any money in this case we must have a complete release. In the first place, it does not appear to me that this company was at fault or liable for the accident with which you met, as I also explained to you when you were here. Whenever you are ready to make an adjustment of this matter, we are willing to make you some allowance, but it will be necessary to sign a full and complete release."

It comes to this: Piersol is not a doctor; he has no personal knowledge of the physical condition of plaintiff; is advised by plaintiff he thinks he can do work; he tells plaintiff that there is no liability for his injury; plaintiff thereafter approaches him of his own volition, and after he has been told that nothing will be paid unless a full release is given: if in these circumstances Piersol said that plaintiff was making a big fuss over his injury that same was of a trifling nature and plaintiff should have been at work in the freight service "for the past six weeks," was there a case of fraudulent representation for a jury? We think that saying this, without more, is the expression of a naked opinion, and one upon which plaintiff had, in the circumstances, no right to rely. Such has been the holding where statements of like effect were made by physicians who had made examination. Nason v. Chicago, R. I. & P. R. Co., 140 Iowa 533, 118 N.W. 751; Kilmartin v. Chicago, B. & Q. R. Co., 137 Iowa 64, 114 N.W. 522; Douda v. Chicago, R. I. & P. R. Co., 141 Iowa 82, 88, 119 N.W. 272; Haigh v. White Way Laundry Co., 164 Iowa 143, 146, 147, 145 N.W. 473; Chicago & N.W. R. Co. v. Wilcox, (C. C. A.) 116 F. 913; Tatman v. Philadelphia, B. & W. R. Co., (Del.) 85 A. 716; Owens v. Norwood White Coal Co., 157 Iowa 389, 400, 138 N.W. 483; Homuth v. Metropolitan St. R. Co., (Mo.) 31 S.W. 903; Doty v. Chicago, St. P. & K. C. R. Co., (Minn.) 52 N.W. 135. And see Longshore v. Jack & Co., 30 Iowa 298. In an action for damages by false representations, the plaintiff has the burden of proving that the representations claimed were made; were false; known at the time to be false; were made with intent to mislead plaintiff; that there was reliance and damage, and no negligence in relying. Gee v. Moss, 68 Iowa 318, 27 N.W. 268; Nason v. Chicago, R. I. & P. R. Co., 140 Iowa 533, 536, 118 N.W. 751; Kilmartin v. Chicago, B. & Q. R. Co., 137 Iowa 64, at 67, 114 N.W. 522; Johnson v. Chicago, R. I. & P. R. Co., 107 Iowa 1, at 7, 77 N.W. 476. It is fraud that avoids the settlement, and "not error of law or lesion." Adle v. Prudhomme, 16 La.Ann. 343. It is not enough that the fact is different from the representation made by the opinion. While an opinion may base the charge of fraud (Haigh's case, 164 Iowa 146, 147), that is not because the truth differs from the opinion, but because "the opinion and belief were fraudulently misrepresented." Stebbins v. Eddy, 4 Mason (U.S.) 414, 417. Appellant cites Meyer v. Houck, 85 Iowa 319. It is not a fortunate selection. Its effect is that a motion to direct a verdict should be sustained when, considering all of the evidence, it clearly appears to the court that, if a verdict were found in favor of the party upon whom the burden of proof rests, it would be the duty of the court to set it aside--that a mere scintilla will not send any case to the jury. The case of Chicago & N.W. R. Co. v. Wilcox, (C. C. A.) 116 F. 913, adds that the settlement may not be avoided by a mere preponderance. We do not care to go so far as that, but not the case as bearing on whether plaintiff had evidence of the fraud he charges. In Nason v. Chicago, R. I. & P. R. Co., 140 Iowa 533, 536, 118 N.W. 751, the condition of plaintiff was much more indicative of serious injury than can be claimed here. So of Nelson v. Chicago & N.W. R. Co., (Minn.) 126 N.W. 902, and Tatman v. Philadelphia, B. & W. R. Co., (Del.) 85 A. 716, at 719. The dealing was at arm's length. As said in Haigh v. White Way Laundry Co., 164 Iowa 143, 145 N.W. 473, that plaintiff's hand was injured and that this was manifest and known to her must be conceded, and this independent fact was as well known to her as to the company. There was much more opportunity to consult others than was present in Owens v. Norwood White Coal Co., 157 Iowa 389, at 393, 138 N.W. 483, or in Nason v. Chicago, R. I. & P. R. Co., 140 Iowa 533, 536, 118 N.W. 751, or Kilmartin v. Chicago, B. & Q. R....