Viallet v. Consolidated Ry. & Power Co.

• Decision Date: 13 February 1906
• Docket Number: 1606
• Citation: 84 P. 496,30 Utah 260
• Parties: VIALLET v. CONSOLIDATED RY. & POWER CO
• Court: Utah Supreme Court

84 P. 496

30 Utah 260

VIALLET v. CONSOLIDATED RY. & POWER CO

No. 1606

Supreme Court of Utah

February 13, 1906

APPEAL from District Court, Salt Lake County; S.W. Stewart, Judge.

Action by Louis Viallet against the Consolidated Railway & Power Company. From a judgment for defendant, plaintiff appeals.

REVERSED.

Wm. A Lee and W. H. Wilkins for appellant.

APPELLANT'S POINTS.

The Utah court has declared that it is only "where there is a total defect of evidence as to essential facts, a spark scintilla, as it is termed, the case should be withdrawn from the jury." In the same case the court further says "To make out a proper case in all its parts then although it may in the opinion of the trial court be slight, inconclusive, and far from satisfactory, yet it should be submitted to the jury, whose proper province it is to consider and determine its tendency and weight." (Cunningham v. Union Pacific Ry. Co., 4 Utah 206, 7 P. 797; McGarry v. Tanner, 21 Utah 16, 59 P. 93; Lowe v. City, 13 U. 94, 44 P. 1050; Jennings v. Pratt, 19 U. 126, 56 P. 951; Silcock v. R. G. W. Co., 22 U. 179, 61 P. 565.)

The law is well settled that where a person occupies a fiduciary relation toward another such as parent, guardian, attorney, priest or physician, and obtains from such person any pecuniary advantage by reason of such trust relation, that this alone constitutes the strongest kind of evidence of fraud. (Anson on Contracts [Knowlton's Ed.], p. 218, star p. 167; Marx v. McGynn, 38 N.Y. 357; St. Leger's App., 34 Conn. 434; Drake's App., 45 Conn. 9; Thompson v. Hawkes, 14 F. 902; Headin v. Minn. Med. Inst., 62 Minn. 146, 63 N.W. 168, 35 L.R.A. 417; Unruh v. Lukens, 166 Pa. 324, 31 A. 110; App. of Audenried, 89 Pa. 114, 33 Am. Rep. 731.)

A party need not entertain an unquestionable positive belief in the correctness of an alleged opinion of a physician. It is enough if such person so far relies on such opinion or is influenced by it that it is the inducing cause. (Peterson v. Chicago Ry. Co., 38 Minn. 511, 39 N.W. 485.)

"In the courts of this country with few exceptions an action of deceit may be maintained on account of false representations when the party by whom they were made either knew them to be false or made them in utter disregard of whether they were true or false, or made them believing them to be true but without reasonable ground for such belief, and under such circumstances that he was bound to know the truth." (Anson on Contracts, p. 207, star p. 160, note 1; Houston T. C. R. Co. v. Brown, 69 S.W. 651; Pendarvis v. Gray, 41 Tex. 329; Converson v. Blanchard, 79 Tex. 492, 15 S.W. 700; Peterson v. Chicago Ry. Co., 38 Minn. 511; 39 N.W. 485; Mo. P. Ry. Co. v. Goodholm, 61 Kan. 758, 60 P. 1066; Coles v. Cassady, 138 Mass. 437; Litchfield v. Hutchison, 117 Mass. 195; Walsh v. Morse, 80 Mo. 568; Caldwell v. Henry, 76 Mo. 254; Johnson v. Berney, 9 Ill.App. 64.)

Young & Moyle for respondent.

RESPONDENT'S POINTS.

The mere fact that the injury was more serious than was supposed at the time the settlement was made, or that the consideration was inadequate, is not proof of fraud. (Quebe v. Gulf Railway Co., 81 S.W. 20; Southern Development Co. v. Silva, 125 U.S. 248; Eccles v. Ry. Co., 7 Utah 335; Houston T. C. R. R. Co. v. McCarty, 86 Am. St. Rep. 854, 60 S.W. 429.)

If he did not know its contents this would not be any evidence of fraud, because having had an opportunity to read and being able to read he cannot complain that he did not read it. (Snelgrove v. Earl, 17 Utah 328; Gulliher v. Chicago, R. I. & P. R. Co., 13 N.W. 432; Glenn v. Statler, 42 Iowa 110; Sanger v. Dunn, 32 Am. Rep. 789; Redpath v. Western Union, 17 Am. Rep. 69.)

Our court has held in discussing generally the question of fraud: "Fraud cannot be presumed from mere suspicious circumstances, but must be proved." (Petrovitsky v. Brigham; 14 Utah 472; Douglass v. Alder, 13 Utah 313.)

"The cases cited for the defendants are sufficient, if authority or argument were needed to support the statement that under such circumstances a man has not a right to rely, except at his own peril, upon the representations of the avowed agent of the adverse interest as to what the law will or will not do or will or will not permit to be done. Common prudence and common sense would seem to be in all ordinary cases sufficient safeguard against frauds of that character." (Thompson v. Phoenix Ins. Co., 46 Am. Rep. 358; Mayhew v. Phoenix Ins. Co., 23 Mich. 105; Aetna Ins. Co. v. Reed, 33 Ohio St. 283.)

In order that fraud may he found there must be some evidence of fraud and not a mere statement of erroneous opinion. (Eccles v. Ry. Co., 7 Utah 335; Nelson v. Minnesota St. Ry. Co., 63 N.W. 486; Whitney v. Richards, 17 Utah 226.)

All parties interested supposed at the time that the injury was only temporary and would be cured within two or three weeks, and that none of them had any knowledge or supposition of any more serious injury; but later it developed that this opinion was in error as to the length of the disability of appellant. Under such circumstances there can be no recovery. (Quebe v. Gulf Ry. Co., 81 S.W. 20; Houston, etc., Ry. Co. v. McCarty, 53 L.R.A. 507; Eccles v. Ry. Co., 7 Utah 338; Sheldon v. Davidson, 85 Wis. 141; Robinson v. Parks, 24 A. 411; Norfolk etc. Hosiery Co. v. Arnold, 23 A. 515; Evans v. Folsom, 5 Minn. 355; Anson on Contracts [Knowlton's Ed.], p. 203; Scrogin v. Wood, 54 N.W. 437.)

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

The facts in this case are as follows: On January 13, 1902 plaintiff was a passenger on defendant's electric car, which was going north of State street, in Salt Lake City; that at the intersection of the two lines of the street railway tracks at Fifth, South and State streets, a car, known as the "Waterloo car," was run into the car upon which plaintiff was riding with such force as to throw him violently to the ground, and, as a result, his right shoulder was dislocated. He was taken by defendant company to a drug store in the city, when some young physician came to plaintiff, and said: "I will relieve you if you want me to," and plaintiff consented. He was placed under an anaesthetic, and, while under its influence, and before he recovered consciousness, was taken charge of by the company's (defendant's) physician, who reduced the dislocation, and otherwise treated the injury. Plaintiff returned home, about noon, which was within a few hours after he had been taken in charge by defendant's physician for treatment. This same physician and the claim agent of defendant visited plaintiff, and the doctor examined the injury, tried his shoulder, and tried to get the motion of the shoulder joint, and, while making the examination, the doctor stated that the injury was a simple dislocation, and that plaintiff would be well within a week or ten days. The claim agent then ascertained from plaintiff that he was a man with a large family dependent upon him, and was at that time without means for their support, and offered him $ 40, and presented a release for plaintiff to sign. Plaintiff read the paper and informed the claim agent that he would sign the release if they would offer him employment with the company in case he failed to recover within the time stated by the company's physician, who was treating him for the injury. The doctor and claim agent then went away, and the claim agent came back again in the afternoon, and stated that he could not furnish him with employment, but that he would make the offer of settlement $ 60. Plaintiff replied that he "would rather wait a few days and see how the thing was coming out." A little before noon the next day, the doctor visited the plaintiff again examined his arm and said: "My friend, you are getting along all right." He asked the plaintiff if the claim agent had been there to see him, and plaintiff told the doctor of the offer of $ 60 made by the claim agent the day previous, and the doctor said: "I don't think it is quite enough. I will advise the company to pay $ 75, and if they do not want to do that, I will pay the $ 15 myself from my own pocket." And the doctor again assured plaintiff that his injury was very slight, and that he would be well within a week or 10 days, and requested plaintiff to inform the claim agent when he called again that the doctor had offered him $ 75. When the claim agent called, plaintiff again refused to accept $ 75. The doctor called again the next day, tried the motion of the plaintiff's arm, and told him that he would be all right in a little while; asked plaintiff if he had signed the release, and expressed surprise when told that he had not, and gave reasons why it would be best for plaintiff to sign it. The doctor stated that he had been the company's physician for 14 years and had had lots of cases like that of plaintiff, and cited instances where the company had offered to settle with parties who were injured, and that they had refused, and had gone into court, and did not get anything. "He told me [quoting plaintiff's testimony] that it was better to settle with the company and that generally those who tried to get too much did not get anything. I told him . . . I thought the company ought to offer $ 250. The doctor said that I could not recover any such thing, because he would be opposed to it; that my injury wasn't such as to get $ 250 out of company. He said they would not pay $ 250 for a simple dislocation. I asked him especially that day how long I would be in getting well, and he said he could only repeat what he said yesterday and the day before; that is, you will be well in a week or ten days, but I could put in another week on top of that to rest. ...