Nielsen v. Portland Gas & Coke Co.

Mr. Justice Bean delivered the opinion of the court. The first question for solution is in regard to the settlement and release. Plaintiff avers in his reply that the physician employed by the defendant “wrongfully and without right kept secret and failed to disclose to — 510 — this plaintiff the character and nature of his said injuries, and, upon the assurances of said physician” that his injury was not serious, as detailed, and without knowledge of his true condition, he did agree with defendant to satisfy, release and discharge the latter from any further liability in consideration of the sum of $40. The evidence on this subject is in part as follows: “The doctor said there was nothing wrong with me, only my muscles were hurt. * * I was down there. They kept saying all the time, ‘Don’t sue us; we will take care of you; don’t go to law about it.’ * * “Q. Did you tell them that you were going to sue them at that time? “A. No, sir; I simply had good faith in the company’s superintendent; Mr. Ross told me that he would support me and take care of me, and I told him that I couldn’t do that work.” To the question, “What did you find to be the matter with him?” Dr. Wight the company’s physician, testified in part as follows: “He had — I saw him in the morning, one morning up in my office — I have forgotten the exact date — and he told me that he had been struck in the back, and I had him strip to the waist and examined his back. He had a scratch on it running from the left shoulder blade down toward the mid line about, I should judge, about a foot long; it wasn’t.deep, and there was no other external evidences of injury. I examined his back, and he was very tender over, I should say, about the region of the ninth, tenth, and eleventh ribs, about two inches from the middle line, but I got him to bend over, and his back was apparently flexible, and I could make out nothing more than an injury, what I considered an injury to the muscles along in the back. I think I gave him some liniment, something of that sort, and told him to return the next day, and I saw him the — 511 — next day, and lie still complained of this very severe pain, which was, in a sense, out of proportion to the external evidence of any injury, and I stripped his hack, and I saw him off and on then, I think, probably six or seven times in two weeks, or approximately two weeks from the time that he first came to the office, and the condition had cleared up considerably. The scratch had disappeared in three or four days, and I could make out no other evidence of injury than that, and I suggested that he had better go back to work, and that he could get some easy job for a short time, and in that way he would be able to keep on with his work. I thought there was nothing serious as far as the injury was concerned. “Q. Did you ever examine him for any fractured ribs? “A. My examination would have made out any— He was very tender, and I examined his back carefully because I naturally thought of that possibility if the condition continued. ’ ’ On cross-examination the doctor admits that he never made an X-ray picture; that at the time Mr. Nielsen was hurt there were large X-ray machines in Portland; that it is difficult to recognize a fracture by the fingers; and that his examination was digital. The trial court treated the allegations of the reply as a foundation of fraud, and submitted the question to the jury upon the basis of the fraudulent representations made by the physician. It charged the jury that, unless the plaintiff was deceived in some way, the release was binding; that, if he was deceived by the doctor employed by the defendant, it would be the same as being deceived by the company; that, to constitute fraud, the representation made must be false, the defendant must have known it to be false, or by the exercise of ordinary diligence should have known it to be false and made with intent to deceive, and that — 512 — the plaintiff must have relied thereon and have been led to execute the release. Plaintiff’s counsel objected, and excepted to the instruction, and requested the court to charge the jury from the standpoint of a mistake as follows: “If you believe that at the time the release was signed that Mr. Nielsen did not know his true condition, then the release would not be binding, and you must hold such release void. If you believe that Mr. Nielsen went to a doctor selected by the gas company, and that such doctor did not disclose to the plaintiff the true condition of his injury, and that Mr. Nielsen made the release in ignorance of his true condition, then you are instructed that the release is no part of this case, and you will disregard it in arriving at the verdict.” After a very careful examination of all the evidence, we believe that nothing more can be claimed by plaintiff than that Dr. Wight failed to make a proper diagnosis of his injury; that after the settlement it was ascertained that his injury was greater than it was supposed to be; and that the jury found by its verdict that there was no fraud or imposition practiced upon plaintiff in making the settlement and obtaining the release. Prom the brief and argument of plaintiff’s counsel, as well as from the requested instruction, it seems that plaintiff’s contention is that the release should be avoided on the ground of mistake. The good faith of the company’s physician in giving the information is not impugned. 1. An agreement of settlement and release obtained from an injured person who acts without independent counsel or advice should be scrutinized with great care, and, upon proof of any fact or facts fairly tending to show fraud or unconscionable advantage in obtaining — 513 — it, a jury would be warranted in finding snch settlement to be of no effect: Olston v. Oregon W. P. Ry. Co., 52 Or. 343 (20 L. R. A. (N. S.) 915, 96 Pac. 1095, 97 Pac. 538); Foster v. University Lumber Co., 65 Or. 46 (131 Pac. 736); Woods v. Wikstrom, 67 Or. 581 (135 Pac. 192). 2. Where the evidence discloses no fact or circumstances upon which to base a finding that the settlement was tainted with fraud or imposition, as in the present case, the verdict of the jury upholding such an adjustment should not be disturbed: Nason v. Chicago, R. I. & P. Ry. Co., 140 Iowa, 533 (118 N. W. 751, 753); Nelson v. Minneapolis St. Ry. Co., 61 Minn. 167 (63 N. W. 486); Chicago & N. W. Ry. Co. v. Wilcox, 116 Fed. 913 (54 C. C. A. 147); San Antonio & A. P. Ry. Co. v. Polka, 57 Tex. Civ. App. 626 (124 S. W. 226, 229); Lawton v. Charleston etc. Ry. Co., 91 S. C. 332 (74 S. E. 750). 3. In an action at law for personal injuries, the fact that the plaintiff may have made an unwise bargain and been mistaken as to the extent of his injuries is not a sufficient reason for annulling a settlement and canceling a release fairly made and executed without any fraud or overreaching on the part of defendant : McFarland v. Missouri Pac. Ry. Co., 125 Mo. 253 (28 S. W. 590, 596). 4. 5. There was no error in the giving of the instruction as to fraud, which, we think, fairly submitted to the jury the question pertaining to the release and in refusing to give the requested instruction permitting the jury to ignore the release on account of an innocent mistake. Counsel for plaintiff cite.and rely upon the very able opinion in the case of Lumley v. Wabash R. Co., 76 Fed. 66 (22 C. C. A. 60). This was an — 514 — equity suit for the purpose of canceling a release obtained by fraud. It was stated therein: “Equity relieves from mistakes as well as fraud.” 6. Having arrived at the conclusion that the claim of plaintiff was settled, as found by the verdict of the jury, we must consider the effect of any error of the trial court in holding that the case did not come within the provisions of the Employers’ Liability Act (Laws 1911, p. 16). We think the position of plaintiff that the cause should be tried under the statute referred to is well taken. However, viewing the evidence from every angle, if the settlement is upheld, as it must be upon the verdict of the jury, there can be no reason for remanding the cause for a new trial. It should be noted that the law relied upon as applicable to this case enacts, in effect, that all owners or persons whatsoever engaged in the construction, repairing, or painting of any building or other structure, or in the erection or operation of any machinery, or in the use of any dangerous appliance or substance, shall see that all metal, wood or other material whatever shall be carefully selected and inspected and tested, so as to detect any defects, and all scaffolding, staging, false work or other temporary structure shall be constructed to bear four times the maximum weight to be sustained; and all scaffolding more than 20 feet from the ground or floor shall be secured from swaying and. provided with a strong safety rail or other contrivance, so as to prevent any person from falling therefrom; and generally, all owners and other persons having charge of, or responsible for any work involving a risk or danger to the employees, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and — 515 — limb, limited only by tbe necessity for preserving tbe efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices. The plaintiff and defendant both assert that at the time of the accident defendant was engaged in the construction of a building, and that plaintiff was employed in assistance thereof.' The use to be made of the valve which they were raising at the time, and which they assert was a part' of the building is not thoroughly explained; but, strictly speaking, whether it was a part of the building or of the machinery would make no difference. It was part of the structure, and undoubtedly the parties were correct in saying that the defendant was engaged in constructing the building. The improvised derrick or gin pole and block and tackle in use at the time of the accident are in the same category as the staging, false work and other things mentioned in the act, all of which are not attempted to be detailed therein, and unquestionably come within the general clause of the section. If there was negligence on the part of the defendant in failing to fasten the end of the gin pole so as to provide a safe place for the plaintiff to work in putting the bolts through the T-valve, which he was attempting to do under the direction of his foreman, there would be an infraction of the Employers ’ Liability Act: Heiser v. Shasta Water Co., 71 Or. 566 (143 Pac. 917); Schulte v. Pacific Paper Co., 67 Or. 334 (135 Pac. 527, 136 Pac. 5); Dunn v. Orchard Land & Timber Co., 68 Or. 97 (136 Pac. 872, 874); Browning v. Smiley-Lampert Lbr. Co., 68 Or. 502 (137 Pac. 777, 779); Schaller v. Pacific Brick Co., 70 Or. 557 (139 Pac. 913); Isaacson v. Beaver Logging Co., 73 Or. 28 (143 Pac. 938); Cam — 516 — eron v. Pacific Lime & Gypsum Co., 73 Or. 510 (144 Pac. 446). 7. Nevertheless, owing to our views heretofore expressed, giving to the provisions of Section 3 of Article YII of the Constitution a partial application, and not a literal one, the judgment of the Circuit Court should he upheld without prejudice to plaintiff’s right to institute a suit to cancel the release, notwithstanding there was error in not predicating the case upon the statute: Wasiljeff v. Hawley P. & P. Co., 68 Or. 487 (137 Pac. 755, 759); Schaedler v. Columbia Contract Co., 67 Or. 412 (135 Pac. 536). The judgment of the lower court is therefore affirmed. Affirmed. Rehearing Denied. Mr. Justice Benson and Mr. Justice Harris concur. Mr. Chief Justice Moore concurs in the result.