The Atchison v. Bennett

• Decision Date: 07 December 1901
• Docket Number: 12,538
• Citation: 66 P. 1018,63 Kan. 781
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. E. S. BENNETT

66 P. 1018

63 Kan. 781

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. E. S. BENNETT

No. 12,538

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Error from Cowley district court; W. T. MCBRIDE, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Injury to Employee -- Settlement and Satisfaction -- Fraud. More than four months after the plaintiff below had suffered an actionable injury to his person by the negligence of the defendant company, he made full settlement therefor with the latter. He was at the time in full possession of his faculties, and thought, from the favorable progress of his injuries in the past, that he would get well within a limited time. Desiring the opinion of a physician on the matter before the settlement was made, he called on a doctor in the employ of the defendant company and asked him what he thought about his final recovery, and was told that he did not think his injury was permanent. He knew of the relation between the doctor and the defendant. It turned out that his injury was permanent, and he afterward sought to set aside the settlement and satisfaction, for fraud. Held, that the evidence of fraud in the case was not sufficient, as matter of law, to accomplish this, and that an instruction to the jury to return a verdict for the defendant ought to have been given.

2. RAILROADS -- Opinion not a Basis for Fraud. The expression of an opinion, honestly entertained, as to a matter wherein opinions may differ, does not afford ground to set aside a settlement and satisfaction on the ground that the same was obtained by fraud; and in this case held, that the evidence shows that only an opinion was given.

A. A. Hurd, and O. J. Wood, for plaintiff in error.

C. T. Atkinson, and J. E. Torrance, for defendant in error.

CUNNINGHAM, J. GREEN, POLLOCK, JJ., concurring.

OPINION

CUNNINGHAM, J.:

This was an action by the defendant in error to recover damages from the railway company for personal injuries received in its employ. He was head brakeman on a freight-train which had just pulled into the yards at Arkansas City. The air-brakes were negligently applied by a yardman at the rear of the train, and, in consequence of the sudden stopping of the train thereby, the plaintiff, who was standing on the front end of the train, was violently thrown to the ground and sustained a severe sprain of his ankles. The injury was had on the 8th day of December, 1896. He was attended by Doctor Dunning, the company's local surgeon at Arkansas City, for some little time, and became gradually better, so that he was able to get around, and thought he would eventually fully recover. On April 19, 1897, Mr. Smith, a claim agent of the railway company, went to Arkansas City to effect a settlement between the company and plaintiff for his injuries. Plaintiff wanted $ 1000 at first, but, after some negotiation, he finally agreed to accept $ 450. This amount was paid him, and he gave a receipt in full satisfaction of all claims and demands whatsoever growing out of the injuries received by him on December 8, 1896.

On October 7, 1898, he brought his action against the railway company to recover damages for his injuries. The company answered, setting up, among other things, the settlement and discharge which plaintiff had made. The latter replied that the discharge had been obtained through the fraud of the agents of the railway company. Upon the trial, after all the evidence was in, the railway company asked the court to instruct the jury to return a verdict in its favor, upon the theory that no sufficient evidence had been adduced to prove fraud in the procurement of the release from liability. The court refused so to instruct. In our opinion the instruction should have been given, and, while several errors are urged by plaintiff in error, we shall discuss only the sufficiency of the evidence to invalidate the discharge of liability, as that will dispose of the case.

It seems that Mr. Smith sent word to the plaintiff to meet him at the depot if he desired to make a settlement with the company, and that in pursuance of that notice the plaintiff did hunt up Mr. Smith, and the latter told him he was prepared to make settlement; that he had seen Doctor Dunning, and Doctor Dunning had said that plaintiff's injuries were not permanent. Plaintiff then told Smith that he would go and see the doctor, and see what he had to say. This he did, and plaintiff testified on direct examination as follows:

"When I went to the office I told him (Doctor Dunning) what I came for, and told him I was about to settle, and asked him what he thought about it; asked him if he thought I would be able to go to work in two months. He says, 'I don't see why you can't now.' I says, 'You don't think my injuries are permanent?' He said: 'No, no, I don't think they are permanent; you will be all right.'"

Upon cross-examination, he said:

"I asked him what he thought of my foot, and asked him if he thought it was permanently injured. He said: 'Why, no, it is not a permanent injury; it will be all right in a short time.'"

At the time of this conversation and settlement the plaintiff believed from his own feelings, and from the favorable progress that had been made during the four months that had passed since his injury, that he would be well in two months more.

Doctor Dunning testified as follows:

"Mr. Bennett first came to me and said he was going to make a settlement with the railroad. I asked him why he made the settlement at that time; why he didn't defer the settlement until he was well or was better. And he remarked that he needed the money. He asked me the question, how long would he be disabled. I told him no one, no physician, could state definitely the length of time; might be longer or shorter."

He further testified on cross-examination that he did not know at the time of this conversation whether the plaintiff's injuries were permanent or not. The plaintiff denied that Doctor Dunning told him that no one could foretell the results of the sprain. Thereupon, acting upon all this information, a settlement was made. It was shown on the trial that the injuries were of a permanent character. Taken at its strongest, does all this show such fraud on the part of the officers or agents of the railway company as will invalidate this settlement and permit plaintiff to ignore it?

This settlement was made more than four months after the injury. Plaintiff at the time was in possession of all his faculties. He had noted the progress of the injury toward recovery. It was his opinion that he was not permanently injured. He desired the opinion of a medical man upon this subject, and for this purpose he sought Doctor Dunning. Doctor Dunning did not seek him. He knew the relation which the doctor sustained to the company, yet, knowing this, he went to him for his opinion...