Southern Ry. Co. v. Clark

• Decision Date: 16 June 1916
• Docket Number: 2689.
• Parties: SOUTHERN RY. CO. v. CLARK.
• Court: U.S. Court of Appeals — Sixth Circuit

233 F. 900

SOUTHERN RY. CO. v. CLARK.

No. 2689.

United States Court of Appeals, Sixth Circuit.

June 16, 1916

Caruthers Ewing, of Memphis, Tenn., for plaintiff in error.

M. J Anderson, of Memphis, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

We have a case where the real damage has been ascertained to have been $1,000, which in terms was released for $10. There is testimony tending to show that the release was executed: (1) Upon plaintiff's complaint of injury to one of his ankles and in his loins and groin; (2) upon an attending physician's statement to plaintiff-- made after treatment of the ankle and some examination as to the other injury complained of-- that 'you are just mostly scared and sick at the stomach,' and 'you will soon get over that,' which apparently satisfied plaintiff, since he testified, 'I just taken his word for that'; (3) upon the claim agent's statement-- made after plaintiff had told him he was injured in his 'ankle and back'-- that 'if you are injured, you will get over it in a few days,' but, according to plaintiff's testimony, this agent stated 'the doctor says that you wasn't-- you ain't hurt much; you are mostly scared and will soon get over it'; and (4) upon an offer of $10 for injury to plaintiff's ankle. If the injury complained of as to plaintiff's loins and groin had been of the character stated by the physician and claim agent, the release given would have been fair; but, as we have seen, it is in effect admitted that one of plaintiff's injuries resulted in hernia. Concededly, the release is in writing and in terms is broad enough to include the injury resulting in hernia, as well as the injury to the ankle, in consequence of the negligent derailment.

In the charge to the jury, the trial court stated that the issue joined upon the replication was one of fraud or mutual mistake, and, after submitting the question whether plaintiff was or was not in fact ruptured, said:

'I shall hold and charge you that if you find that this rupture proximately resulted from the accident and the man didn't know that he was hurt there, or if he knew that he had some trouble in that region and was misled by the statements of the agents of the defendant company, then he would be entitled to recover for the injury to his side. But the burden is on him to prove that he was hurt; that is, that he had the rupture, and that he was misled by the doctor or the agent, and that his uneasiness in that direction was allayed by their statement that it would soon pass away. That they may have done either honestly or on purpose. That is to say, they may have known or believed that it would not pass away and that it was not cause(d) by the mere shaking up and mere matter of nausea, and if they did know it was not so caused, then they misled him; or they may not have known that the injury had been sustained in the side and may have said to him and in good faith that it was a merely temporary ailment and would soon pass away. But, if they did either one, in point of fact, and they didn't intend to include for that injury in the side in the settlement they made with him, then they would still be liable, if the man was so injured. I don't know whether I am making myself very clear or not, but I am trying to present the case here so that you will understand that the settlement made would not bar this plaintiff from recovering for the injury to the side unless the parties intended and understood that they were including the injury in the side within the terms of that settlement and the plaintiff was not misled about it to any extent by the defendant.'

It is urged that the trial judge misinterpreted the issue and submitted the case to the jury on the theory that the question presented by the pleadings was whether the parties intended to make a full settlement or only one for the damages arising from injury to plaintiff's ankle counsel's insistence being that no issue was tendered except the question, 'Was the plaintiff at the time he signed the release capable of making a valid contract? ' The court, as we have seen, stated the issue to be one of fraud or mutual mistake, the exact language being:

'The defense is that of not guilty, the general issue, and further a special defense that the defendant had settled with the plaintiff for whatever injury he had sustained by reason of the derailment of this train, and that the defendant is not liable to him for anything further.

'There is a replication filed by the plaintiff to that plea, in which he sets up that it was obtained by fraud or mutual mistake, and upon that replication, the defendant joins issue.'

It was not necessary to restate the issue, but its alternative character--fraud or mistake-- appears to have resulted in some confusion in the course of the charge. For example, the plaintiff was declared entitled to recover for the injury to his side, if at the time the release was given he did not know of such injury, or if the intention was not to include that injury in the release, or if the understanding was so to include the injury and plaintiff was not misled in that respect. The real meaning of all this, however, seems to have been made clear by a special instruction which was given at defendant's request after the general charge was concluded; it was stated in this instruction that: 'If the plaintiff understandingly settled his claim and was not misled or deceived by the defendant in any way, his action is barred, even though at the time of the settlement he was hurt more seriously than he thought.'

It is true that this instruction as submitted ended with the following clause, which was stricken out: 'and in a particular that he did not know. ' But that clause did not, while the next preceding and granted clause did describe plaintiff's condition; for the record stands as a practical admission that shortly before the settlement plaintiff told the physician of the pains he was suffering in his loins and groin. The excluded words, therefore, were not applicable; and, moreover, the granted clause 'even though at the time of the settlement he (plaintiff) was hurt more seriously than he thought,' qualified and rendered harmless the words of the general charge, 'if you find that this rupture proximately resulted from the accident and the man didn't know that he was hurt there'; for the special instruction as given is bottomed on the idea that the action was barred unless plaintiff had in some way been 'misled or deceived by the defendant,' whether at the time of the settlement he knew or did not know the nature or extent of the injury of which he had complained. Again, plaintiff's 'intention' concerning this injury, as well as his concurrence in any 'understanding' had in reference to it, might well have been brought about by the representation of the physician and its repetition by the claim agent. This instruction was the last expression of the court's view of the situation and also that of the parties in regard to the controlling issue of fact to be submitted to the jury; it was indicative of the very atmosphere of the trial and was calculated to clarify the situation; its effect was distinctly to reduce the issue to that of the alleged fraud. We may therefore assume that but for this instruction the judgment would have to be reversed; but we are convinced that any error occurring in the respects pointed out was thus substantially cured. We are strengthened in this view by the fact that the dominant issue traceable through the general charge and practically applied was the feature of fraud; this is shown by the frequent and purposeful use which was made of the word 'misled,' in stating the different hypotheses upon which the jury should consider the evidence; and the few omissions strictly to observe and apply this issue were effectively supplied by the special instruction...