Estes v. MaGee

• Decision Date: 10 December 1940
• Docket Number: 6757
• Citation: 109 P.2d 631,62 Idaho 82
• Parties: MURRAY ESTES, Respondent, v. Dr. C. F. MAGEE, Appellant
• Court: Idaho Supreme Court

109 P.2d 631

62 Idaho 82

MURRAY ESTES, Respondent, v. Dr. C. F. MAGEE, Appellant

No. 6757

Supreme Court of Idaho

December 10, 1940

Rehearing denied December 10, 1940.

PHYSICIANS AND SURGEONS-MALPRACTICE-DAMAGES-RELEASE - MISTAKE-SETTING ASIDE.

1. Generally, a release induced by the fraudulent or honestly mistaken statements by a physician representing a releasee as to the present nature or circumstances of an injury, is not binding on the releasor.

2. Statements to patient by physician from whom patient sought to recover for personal injuries, notwithstanding that the patient had signed a release, on ground that the physician had misrepresented the degree of patient's injuries, that the injuries were not serious and that the patient would entirely recover in a short time, were more than mere "opinions," where closer than ordinary rela- tionship of confidence, friendship, and respect existed between the patient and the physician.

3. The trial court sitting without a jury as a trier of fact is the tribunal to determine whether the evidence is clear satisfactory and convincing in order to overthrow a release if there is competent evidence to that effect.

4. Where the one rescinding a release would be entitled to retain the money received, even though the release be set aside, he is not required to return the money paid in settlement, since the same result can be accomplished by crediting the amount paid in partial satisfaction of the judgment.

5. An award of $2,655 to patient in malpractice action was not excessive for burn on patient's heel, where $155 was special damages for costs of medical treatment, and where patient was forced to undergo two operations and receive treatment for over two years, and patient testified at trial that condition of heel interfered with his walking and caused pain.

6. Physician was not prejudiced by patient's delay in bringing action for personal injuries, though patient had signed a release, on ground that the extent of his injuries were misrepresented to him by the physician, and patient's right of recovery was not barred because of "laches," where the release was executed on June 5, 1935, the injury became worse during the latter part of July, 1935, and patient brought the action on April 22, 1937.

7. In action by patient against physician for personal injuries sustained by the patient when his heel was burned by a hot water bottle while he was under the influence of a general anesthetic, wherein the physician set up a release signed by the patient, but wherein the patient contended that he had signed the release because of misrepresentations by the physician, evidence sustained trial court's finding that the release should be set aside.

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. A. H. Featherstone, Presiding Judge.

Action to recover damages for personal injuries. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

V. R. Clements, for Appellant.

"Where a party to a compromise agreement desired to set aside or avoid the same and be remitted to his original rights, he must place the other in status quo by returning or tendering the return of whatever has been received by him under such compromise." (Leaper v. Vaught, 45 Idaho 587, 593, 264 P. 386; 12 C. J. 355-357; 15 C. J. S. 762-765; 11 Am. Jur. 281; 1 C. J. S. 547, 762; Westerfeld v. New York Life Ins. Co., 157 Cal. 339, 107 P. 699; Hadley v. Hadley, 79 Ore. 573, 155 P. 195; Glaser v. Haskin, 127 Ore. 523, 272 P. 890; Randall v. Port Huron, St. C. & M. C. Ry. Co., 215 Mich. 413, 184 N.W. 435.)

Delay in seeking rescission of a compromise and settlement may bar relief. (12 C. J. 357; 15 C. J. S. 765, 766; Randall v. Port Huron, St. C. M. & C. Ry. Co., supra; Burns v. Estate of Reading, 188 Mich. 591, 155 N.W. 479; Memphis St. Ry. Co. v. Giardino, 166 Tenn. 368, 92 S.W. 855; Brainard v. Van Dyke, 71 Vt. 359, 45 A. 758; Laird v. Union Traction Co., 208 Pa. 574, 57 A. 987.)

Fraud is never presumed, but must be established by clear and convincing evidence, and this is especially true where a party assails the integrity of a written instrument. ( Nelson v. Hudgel, 23 Idaho 327, 130 P. 85; Nelson v. Krigbaum, 38 Idaho 716, 226 P. 169; Smith v. Thomas, 42 Idaho 375, 245 P. 399; Smith v. Johnson, 47 Idaho 468, 276 P. 320; Udelavitz v. Ketchen, 33 Idaho 165, 190 P. 1029; 23 C. J., Evidence, sec. 1759, p. 24; 27 C. J., Fraud, sec. 199, p. 62.)

Fraud cannot be predicated upon expressions of opinion; this is especially true where the opinion is honestly expressed. ( Dellwo v. Petersen, 32 Idaho 172, 180 P. 167; 26 C. J. 1079.)

This rule is applicable to physicians and surgeons. ( Louisville & N. R. Co. v. Carter, (Ky.) 66 S.W. 508; Barrett v. Lewiston B. & B. Street R. Co., 110 Me. 24, 85 A. 306; Davis v. Higgins, 95 Okla. 32, 217 P. 193; Beatrice Creamery Co. v. Goldman, 175 Okla. 300, 52 P.2d 1033.)

Latham D. Moore, for Respondent.

Fraud may exist without intent to do wrong and is known as constructive fraud or fraud in law and may consist of any breach of duty which, if not relieved, would have the effect of an intentional fraud. (Windle v. City of Valparaiso, 62 Ind.App. 342, 113 N.E. 429; National Mfgrs. Co. v. Bird, 97 N.J. Eq. 242, 127 A. 819.)

Fiduciary relations are found where relation of trust and confidence exist between friends. (Thompson v. Thompson, 91 Cal.App. 554, 267 P. 375.)

One has right to rely upon a statement of a material fact made as a positive assertion under circumstances from which it is fairly inferable that the parties making the statement know that the former was relying expressly upon their representations, and that under such circumstances the one to whom the representations are made is under no obligation to inquire into their truth or falsity. (Burger v. Calek, 37 Idaho 235, 215 P. 981; Gridley v. Ross, 37 Idaho 693, 217 P. 989; Goody v. Maryland Casualty Co., 53 Idaho 523, 25 P.2d 1045; Baird v. Gibberd, 32 Idaho 796, 189 P. 56.)

Question of fraud in obtaining release from claim for damages is one of fact for the jury. (Cox v. Northwestern Stage Co., 1 Idaho 376; Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895; Serr v. Biwabik etc. Co., 202 Minn. 165, 278 N.W. 355, 117 A. L. R. 1009.)

Misrepresentation by a physician of an existing material fact is grounds for the rescission of a release induced thereby. (Atchison, T. & S. F. Ry. Co. v. Peterson, 34 Ariz. 292, 271 P. 406; Brown v. Ocean Accident & Guarantee Corp., 153 Wis. 196, 140 N.W. 1112; Granger v. Chicago M. & St. Paul Ry. Co., 194 Wis. 51, 215 N.W. 576; Domincis v. U.S. Casualty Co., 132 A.D. 553, 116 N.Y.S. 975; St. Louis etc. Ry. Co. v. Hambright, 87 Ark. 614, 113 S.W. 803, 807.)

A party is not bound to return or tender back money received under a void or voidable release where the adverse party pleads and relies upon the release as a defense. (Serr v. Biwabik etc. Co., supra; Perkins Oil Co. of Delaware v. Fitzgerald, 197 Ark. 14, 121 S.W.2d 877; Collins v. Hughes & Riddle, 134 Neb. 380, 278 N.W. 888; Thorne v. Columbia Cab Corp., 167 Misc. 72, 3 N.Y.S. (2d) 537.)

The mere relay in bringing an action for a time less than the period of limitations does not amount to laches, unless it appears that the delay has been to the prejudice of the opposite party. (Pomeroy, 4th ed., vol. 4, par. 1442; Victor Oil Co. v. Drum, 184 Cal. 226, 193 P. 243; Jackson v. Meinhardt, 99 Cal.App. 283, 278 P. 462; Ellis v. Jones, 121 Cal.App. 325, 8 P.2d 933.)

GIVENS, J. Holden, J., and McDougall, Porter and Buckner, D. JJ., concur. Ailshie, C. J., and Budge and Morgan, JJ., did not sit at the hearing or participate in the opinion.

OPINION

GIVENS, J.

April 23, 1935, in his own hospital appellant performed an appendectomy upon respondent. Following the operation and upon coming out from the influence of a general anesthetic, respondent felt a sharp pain in his left heel and an examination disclosed a large blister, being a burn caused by a hot water bottle left at respondent's feet in his bed while still under the anesthetic.

Respondent was discharged from the hospital April 29th or 30th but returned every other day for treatment of the burn on his heel. About May 10th appellant advised respondent the burn was not responding to treatment as it should and it would be necessary to remove the top skin from the injury. This appellant did and for a time thereafter respondent appeared to be making a satisfactory recovery.

About the middle of May respondent informed appellant he felt he was entitled to damages for the injury he had suffered while in appellant's care, because of the burn; that he had no desire to injure appellant in any way but that by reason of his having represented appellant in legal matters was aware appellant was covered by insurance and would therefore claim damages for loss of time from work and the inconvenience and pain he had suffered because of the burn. Appellant then advised respondent to write him a letter stating his position so that appellant could forward the letter to his insurance company for adjustment. This letter ^[1] was written May 16, 1935, and during the remainder of May the injury commenced, to heal quite rapidly.

About May 25, 1935, a claims representative of United States Fidelity and Guaranty Company of Baltimore, Marylant concerning advisability of settlement, and no agreement settlement of his claim, at which time respondent told him he desired opportunity for further consultation with appellant concerning advisability of settlement, and no agreement was reached. Respondent again consulted appellant and according to respondent, appellant reiterated his prior statements that the injury was only superficial and that nothing...