St. Louis, I. M. & S. Ry. Co. v. Hambright

• Decision Date: 02 November 1908
• Citation: 113 S.W. 803
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. HAMBRIGHT.
• Court: Arkansas Supreme Court

113 S.W. 803

ST. LOUIS, I. M. & S. RY. CO. v. HAMBRIGHT.

Supreme Court of Arkansas.

November 2, 1908.

Appeal from Circuit Court, Miller County; Jacob M. Carter, Judge.

Action by W. O. Hambright against the St. Louis Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hambright was a brakeman on a freight train in the employ of the appellant railroad company, and on August 10, 1906, was knocked from his train by a defective waterspout at Austin, and seriously injured. He was taken to his home in Memphis, Tenn., where he was under the care of competent physicians of his own selection. Later he went to the hospital of the railroad company in St. Louis, Mo., where he arrived on the 27th of September. He remained there under treatment for about two weeks, when he returned to Memphis. At that time he promised the chief surgeon, Dr. Outten, that he would return to the hospital. It was a rule of the hospital that employés under treatment there should remain until they were discharged by the chief surgeon, who gave them what was called a "clearance," which they took to the general claim agent of the railroad company. This clearance was a statement of the exact physical condition of the employé, who was expected to take it to the claim agent as a basis for settlement before returning home. On the 21st of November Dr. Outten wrote Hambright, upbraiding him for not fulfilling his promise to return, stating that he, Dr. Outten, had been placed in an embarrassing position by permitting him to leave, evidently referring to his failure to obtain his clearance, and see the claim agent before his discharge. Hambright returned to the hospital shortly after receiving this letter, and was examined by Dr. Outten, the chief surgeon, on December 3d. Dr. Outten then wrote a letter to the general claim agent, making a report upon Hambright's case. He says: "I find a marked deformity of the spinal column, commencing with the twelfth dorsal and involving the first and second lumbar vertebra. There is undoubtedly a diseased condition here, as not only the spinal processes are enlarged, but seemingly the laminæ of the vertebra as well." He goes fully into the case, and concludes as follows: "I cannot tell at this examination whether it will be permanent or not, but, as I have said before, a young man 29 years of age, under intelligent treatment, and when you take into consideration the region of the column involved, there is a bare possibility that it will get well. In any event, it is a serious injury, and one that decidedly menaces his future usefulness. This letter will take place of the clearance, as Hambright will report to you tomorrow morning." Hambright said this letter was given to him sealed, and he carried it to the office of Mr. Jones, the general claim agent, but failed to see Mr. Jones, and left the letter for him. Dr. Outten said that it was his custom to acquaint employés with statements he made to the claim agent, and he is satisfied he did so in this case. He denied the statements attributed to him by Hambright and Phillips hereafter set out. He said that all of his examinations were made in the interest of the employés as well as the company; that he is employed by the company, but that his salary comes out of a hospital fund, which is raised by assessments on all the employés of the company. Hambright says: That, when Dr. Outten examined him, he told him that his injuries were not serious, and that he would be able to go to work by the 1st of March, and he replied to him: "Doctor, it is up to you. I don't know, and I want to know just what you think." That the doctor said: "It is nothing bad, and you will be all right by the 1st of March." A friend of Hambright's, one Phelps, said he was with Hambright at this time, and that Dr. Outten told Hambright that he was not permanently injured, that his injuries were not going to be serious, and that he would be able to take his place back by March, 1907. Hambright returned to Memphis without making a settlement, but subsequently wrote to Dr. Outten that he would like to arrange with Mr. Jones or some of his agents to see him, as he would like to settle with the railroad company. A pass was furnished him to St. Louis, and he went there and saw the claim agent on the 28th of December. There is irreconcilable conflict between the testimony of the claim agent and his stenographer and that of Hambright as to the transaction at that time. The claim agent puts in evidence certain writings: First, a proposition signed by Hambright to him, reciting his injury and his condition, and proposing to settle with the railroad company for $1,250. A written acceptance follows, signed by Jones as general claim agent for the railroad company. Then follows a formal release setting forth in full the accident occasioning the injury and the extent of his injury, and that in his judgment the injuries received are of permanent character, and reciting an agreement to settle for $1,250 and acknowledging receipt of the same in full settlement of all actions, suits, or claims of every class or character arising to him or accruing to him by reason of the injuries referred to. Written upon this by Hambright in his own handwriting is this clause: "I understand this release." Mr. Jones and his stenographer testified that these papers were dictated to the stenographer in the presence of Hambright, and were signed by him, and that they truly reflect the transaction, and they further testify that Mr. Jones had no communication with Dr. Outten at that time, that Dr. Outten's letter, which served as a clearance, was the sole information he had before him of Hambright's condition. On the other hand, Hambright testifies that Mr. Jones called up Dr. Outten over the telephone, and, after inquiring as to Hambright's condition, listened for a few moments, and then turned to him and said: "Dr. Outten says that you are not badly hurt, and that you will be able to go to work by the 1st of March." He says that he placed every reliance upon the statement of Dr. Outten, and thought that he knew exactly what he was talking about, and that he consulted no other doctors at that time in regard to his condition, and that after receiving this information from Mr. Jones that he asked him in regard to his work, and that Jones told him that he would see that his job would be ready for him as soon as he was able to work. He said he told Jones he was hurt bad, and wanted pay for his time off; and he says that the settlement was based on the actual wages from the time of his injury to the 1st of March, and doctor's bills, expenses, and medicines, and that he put in no claim for a settlement for his injuries, and did not know that that element was stated in the writing which he signed, that the papers he signed were not dictated in his presence or hearing, and that he did not read them over because he did not consider it necessary, as he thought it was a receipt for his wages and expenses as agreed upon. The $1,250 was paid to Hambright and he returned to his home in Memphis. His physical condition did not improve, and in the latter part of February he consulted physicians there to see if he would be able to return to work the 1st of March, and was advised that he was permanently disabled from pursuing work in the railroad service requiring physical exertion. The evidence is undisputed that his injuries are of such a nature that he will be unable to do any work which would require physical exertion, and that the only service in the railroad employ for which he would be fitted would be such a position as flagman at a crossing at a salary of $40 or $45 a month. He says he is not sufficiently educated to do any clerical work, and his earnings are dependent upon comparatively unremunerative positions. He was earning at the time of the injury about $150 per month, and he had just been promoted to a freight conductor, but had not assumed that position at that time.

This suit was brought by Hambright against the railroad company to recover damages for his injuries, alleging negligence. The answer denied negligence, and pleaded contributory negligence, and further pleaded a settlement for $1,250 in full satisfaction of the damages on account of the injury. The plaintiff filed an amended complaint, admitting the settlement and the receipt of $1,250, and charged fraud and deceit on the part of defendant's chief surgeon and general claim agent in procuring the settlement. The defendant filed an amended answer denying any false or fraudulent statements in procuring the settlement.

The facts above outlined were developed in the evidence and also the facts as cause of the injury. As...