Hardister v. St. Louis, Iron Mountain & Southern Railway Co.

Wood, J., (1) (after stating the facts). Among the •tests announced by this court to determine whether contracts should be rescinded on the ground of fraudulent representations are the following: “First. Was the relative position of the parties such, 'and their means of information such, that the one must necessarily be presumed to contract upon the faith reposed in the statements of the other; and, “Second. Did the injured party rely upon the fraudulent statements of the other, and did he have a right to rely upon them?” These were amona; the tests formulated by this court from all previous decisions, as early as Yeats v. Pryor, 11 Ark. 66, and stated succinctly in Matlock v. Reppy, 47 Ark. 164, and as there stated, they have been often quoted with approval in many subsequent cases, some of them quite recent. See English v. North, 112 Ark. 490. Applying these tests to the testimony of the appellant himself, and that of his witness, Doctor Gray, the court, had it been requested so to do iby the appellee, should have directed a verdict in its favor. It follows that the verdict and judgment were correct, even though some of the instructions which the court gave submitting the issue concerning fraudulent misrepresentations may have been erroneous. (2) Appellant testified that appellee’s claim agent Collins influenced him to sign the release by telling him that Doctor Gray had told ¡him (Collins) that he (appellant) was not seriously injured, and would be out in a short time. But his testimony further shows that the proposition to pay him $400 as a consideration for his signing the release was made by the agent of the appellee one evening, land was not accepted by him until the next evening. Collins had told him the night before that Doctor Gray said appellant ’is injuries were not serious, and that appellant would soon be up. Thus it appears that appellant had a day to determine, after the alleged false representations were made, as to whether or not they were true. Doctor Gray was his family physician, was treating him for these very injuries, was in easy reach of appellant, iand he could have easily ascertained from his doctor whether or not there was any truth in the representations made toy Collins. The relative position of appellant and his means of information was such that he can not in law toe presumed to have signed the release upon the faith reposed toy him in the statements of Collins ; iand, although he testified that he did rely upon such statements, he had no right, under the circumstances, to rely upon them, and can not escape the binding obligation of his contract of release upon the plea that he did rely upon them. In Delaney v. Jackson, 95 Ark. 131-6, we said: “If the means of information as to the matters represented is equally accessible to tooth parties, they will toe presumed to have informed themselves; ‘ and if they have not done so, they must abide the consequences of their own carelessness.’ ” See, also, McDonald v. Smith, 95 Ark. 523-7. The means of information for lappellant to determine what his physical condition was .as a result of his injuries, and whether or not he would soon recover, was even more accessible to appellant than to the agent of the appellee who was maiking the alleged false representation. Appellant, with the slightest diligence, could have ascertained, if he did not already know, what the doctor thought about his real condition, and whether or not he had made the statements attributed to him toy appellee’s agent. The law holds him to the duty of making this inquiry, and will not allow him, under such circumstances, to vitiate a solemn contract into which he entered for a valuable consideration. 'Such toeing our conclusion, the other questions pass out. The judgment is correct, and it is affirmed.