{ "id": 1382151, "name": "F. Kiech Manufacturing Company v. James", "name_abbreviation": "F. Kiech Manufacturing Co. v. James", "decision_date": "1924-04-28", "docket_number": "", "first_page": "137", "last_page": "144", "citations": [ { "type": "official", "cite": "164 Ark. 137" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "139 Ark. 69", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596350 ], "opinion_index": -1, "case_paths": [ "/ark/139/0069-01" ] }, { "cite": "93 Ark. 589", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1546908 ], "opinion_index": -1, "case_paths": [ "/ark/93/0589-01" ] }, { "cite": "143 N. Y. 424", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2262327 ], "opinion_index": -1, "case_paths": [ "/ny/143/0424-01" ] }, { "cite": "47 Ark. 335", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888739 ], "opinion_index": -1, "case_paths": [ "/ark/47/0335-01" ] }, { "cite": "89 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515255 ], "opinion_index": -1, "case_paths": [ "/ark/89/0321-01" ] }, { "cite": "128 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581932 ], "opinion_index": -1, "case_paths": [ "/ark/128/0223-01" ] }, { "cite": "121 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559363 ], "opinion_index": -1, "case_paths": [ "/ark/121/0433-01" ] }, { "cite": "115 Ark. 629", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "110 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337129 ], "opinion_index": -1, "case_paths": [ "/ark/110/0182-01" ] }, { "cite": "156 N. W. 251", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "136 Fed. 118", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3873217 ], "opinion_index": -1, "case_paths": [ "/f/136/0118-01" ] }, { "cite": "87 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519173 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ark/87/0614-01" ] }, { "cite": "115 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1533795 ], "opinion_index": 0, "case_paths": [ "/ark/115/0529-01" ] }, { "cite": "121 Ark. 269", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559372 ], "opinion_index": 0, "case_paths": [ "/ark/121/0269-01" ] }, { "cite": "126 Ark. 562", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551689 ], "opinion_index": 0, "case_paths": [ "/ark/126/0562-01" ] }, { "cite": "129 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580481 ], "opinion_index": 0, "case_paths": [ "/ark/129/0095-01" ] }, { "cite": "132 Ark. 449", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1576809 ], "opinion_index": 0, "case_paths": [ "/ark/132/0449-01" ] }, { "cite": "140 Ark. 73", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594457 ], "opinion_index": 0, "case_paths": [ "/ark/140/0073-01" ] }, { "cite": "145 Ark. 269", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1586156 ], "opinion_index": 0, "case_paths": [ "/ark/145/0269-01" ] }, { "cite": "151 Ark. 102", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1366120 ], "opinion_index": 0, "case_paths": [ "/ark/151/0102-01" ] }, { "cite": "152 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364103 ], "opinion_index": 0, "case_paths": [ "/ark/152/0442-01" ] }, { "cite": "128 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581932 ], "opinion_index": 0, "case_paths": [ "/ark/128/0223-01" ] }, { "cite": "121 Ark. 433", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1559363 ], "opinion_index": 0, "case_paths": [ "/ark/121/0433-01" ] }, { "cite": "110 Ark. 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337129 ], "opinion_index": 0, "case_paths": [ "/ark/110/0182-01" ] }, { "cite": "87 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519173 ], "opinion_index": 0, "case_paths": [ "/ark/87/0614-01" ] } ], "analysis": { "cardinality": 715, "char_count": 15292, "ocr_confidence": 0.481, "pagerank": { "raw": 3.5878371864950764e-07, "percentile": 0.8870855018960565 }, "sha256": "f0664bbef06d5567db2f44d11701be6dfbd56c8e13e8f4aa9cd1cf56ac0b5dff", "simhash": "1:1c065c093675e1fc", "word_count": 2621 }, "last_updated": "2023-07-14T21:06:17.410158+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "F. Kiech Manufacturing Company v. James." ], "opinions": [ { "text": "Smith, J.\nOn March 1, 1922, appellee sustained an injury while working as an employee of the appellant company, at its manufacturing plant in Lake City, Arkansas. On the same day he was taken to Jonesboro and placed in a hospital, and remained there under the care of Dr. H. H. McAdams until May 7 following, when lie was discharged from the hospital by Dr. McAdams.\nOn May 9, 1922, a settlement was effected between appellant and appellee, pursuant to which appellant paid appellee $1,050 and took the following release:\n\u201cRelease.\n\u201cMay 9, 1922. For the sole consideration of one thousand, fifty and 00/100 dollars to me this day paid, I, for myself, my heirs, executors, administrators and assigns, do hereby release and forever discharge the F. Kiech Manufacturing Company of and from all claims or demands, damages, actions, or causes of action in law or \\n equity, from any matter, cause or thing whatsoever prior to the date hereof, and on account of personal injuries, and all other loss or damage (including loss or damages to the property of the undersigned) resulting, or to result from an accident to myself, L. F. James, which occurred on or about the 1st day of March, 1922.\n\u201cTo secure the payment of said sum, I hereby represent to the F. Kiech Manufacturing Company that I am twenty-one years of age, and that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, disabilities and damage, and that no representations or statements about them have induced me to make this settlement.\n\u201cIt is understood and agreed the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein.\n\u201cIn witness whereof I have hereunto set my hand this ninth day of May, 1922.\n\u201cIn the presence of: H. H. McAdams, F. M. James.\u201d\nhis\n\u201cLawrence F. x James (Seal),\nmark\nhis\n\u201cL. F. x James (Seal),\nmark. \u2019 \u2019\nThereafter, notwithstanding said release, appellee instituted this action to recover damages for his injury. Appellant interposed several defenses, and, among others, the release; and at the trial appellee sought to avoid the effect o\u00ed the release by showing that, on the day it was given, Dr. McAdams made to appellee certain statements relative to the nature, extent and probable duration of his injuries, which he believed to be true, but which, as it subsequently developed, were erroneous.\nDr. McAdams did1 not testify as a witness, but a statement of what his evidence would be if present was dictated into the record, which reads as follows:\n\u201cIt is agreed by counsel for both plaintiff and defendant that Dr. H. H. McAdams, if present, would testify that he attended Lawrence James from the time he was injured until he was discharged from the hospital ; that at the time the purported settlement was made he was present and heard the settlement discussed1 between Lawrence James and Mr. Boydston and Mr. Bird, representing the F. Kiech Manufacturing Company; that he, McAdams, examined Mr. James\u2019 injuries at the time, and stated to Mr. James, in the presence and hearing of Mr. Boydston and Mr. Bird, that the injuries were not permanent; that in a -short time, in the course of five or six months, he would recover the use of his arm, and could use it as g*ood as he ever did, except there might be a stiffness in the elbow; that, at the time he made this statement, he honestly believed his prognosis was correct, but, since that time, it has become necessary to perform an operation on the arm, and they amputated it, and that he, McAdams, assisted in the amputation. In the opinion of the witness, at the time James signed the release, he was not under the influence of narcotics, and, in the opinion of Dr. McAdams, Mtr. James knew and understood what he was doing, and was in full possession of his mental faculties at the time the release was executed.\u201d\nAfter appellee was injured, Hysmith, the plant foreman, directed Dr. Roberts to attend the injured man, and Roberts rendered first aid, and carried appellee to the hospital at Jonesboro. Dr. Roberts testified that, at the suggestion of Hysmith, he called Drs. Stroud and McAdams, physicians and surgeons, practicing their profession as partners at Jonesboro, to meet him at the hospital. That on the way he met C. M. Boydston, the manager of the company, or a Mr. Shauver, an officer of the company (he did not remember which one), who, on learning of the occurrence of the accident, told the witness to \u201ctake him on and do the best you can for him.\u201d .Witness placed appellee in the hospital, and Drs. Stroud and McAdams assumed charge of the case, and witness advised Boydston the action he had taken.\nAppellee testified that, while he was in the hospital, he was attended by Drs. Stroud and McAdams, principally the latter; that he did not know who engaged them, and that he was discharged from the hospital by Dr. McAdams on May 7. These physicians continued to treat appellee after he was discharged from the hospital until the 1st of September following, during the first month of which time he came into Jonesboro to their office for treatment every day. These visits were reduced to two a week, and later to one a week, but, as appellee did not get well, as had been anticipated, and continued1 to suffer, his arm was amputated, the operation being performed by Drs. Stroud and McAdams, assisted by Dr. Roberts.\nDuring appellee\u2019s illness the company paid all his expenses and advanced him small sums of money from time to time, and, by the terms of the settlement made between appellee and the company, the company was to pay the sum of $1,050, out of which was to be deducted the expenses paid, and the sum of $219.04 due' Drs. Stroud and McAdams, and certain drug bills, and the advances which the company had made in money.\nOn the day the settlement was made, as appears from Dr. McAdams\u2019 statement copied above, appellee was examined by Dr. McAdams, in the presence of representatives of the company. This examination was made for the obvious purpose of forming a basis of a settlement, and appellee was given the assurance of Dr. McAdams that time would restore him, except a stiffness in the elbow. It does not appear that the charge of this examination was included in the doctors \u2019 bill which was to be deducted from the compensation agreed upon.\nThe jury was told, if there was a finding for the plaintiff, to deduct from the sum found the $1,050 paid, and there was a verdict in appellee\u2019s favor for the sum of $3,962.18.\nAt the trial appellant asked instructions numbered 1, 2 and 9, which are set out in appellant\u2019s abstract. The court refused to give any of these instructions, and this action is assigned as error. The other instructions asked by appellant are not set out, and we must therefore presume that, in so far as the requested instructions correctly declared the law, they were covered by other instructions which were given. Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442; Christian & Taylor v. Fancher, 151 Ark. 102; Covill v. Gerschmay, 145 Ark. 269; U. S. Auto Co. v. Arkadelphia Milling Co., 140 Ark. 73; Morris v. Raymond, 132 Ark. 449; Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95; Barnett Bros. v. Western Assurance Co., 126 Ark. 562; Harrelson v. Eureka Springs Electric Co., 121 Ark. 269.\nThe court gave, at the request of appellee and over appellant\u2019s objection, an instruction numbered 1, which reads as follows:\n\u201cNo. 1. As a defense to this action, defendant pleads a release signed by plaintiff as a complete defense. The plaintiff admits the execution of the release offered in evidence, and the same is binding upon him, unless you find, from a preponderance of the evidence, that, at or before the time the consideration was paid for said release and the same was executed, the physician and surgeon employed to attend the plaintiff made an examination of the plaintiff\u2019s injuries, and thereupon assured the plaintiff that his injuries were not permanent, but that plaintiff\u2019s arm would be in as good condition as it ever was, within the course of four or five months, and that plaintiff, relying upon said statement as being true, executed said release, but that thereafter it was developed that plaintiff was permanently injured, and that he never would be able to perform labor in his line of employment, and that, at the time of making said statement, defendant\u2019s physician and surgeon either knew that the plaintiff was permanently injured, and misrepresented that fact, or was honestly mistaken as to the extent of plaintiff\u2019s injury, and misled plaintiff into signing said release, then and in either of said events plaintiff is not bound by said release, and yon will so find.\u201d\nThe giving of this instruction is assigned as error, it being also insisted that it assumed that the doctor upon whose representations appellee claims to have relied was the company\u2019s physician, whereas that question should have been submitted to the jury.\nHowever, at the time the instruction was given only a general objection was made; and we think the objection now urged against the instruction, that it assumed a disputed fact, is one which should have been specifically made at the trial. The testimony set out certainly tends to show that Dr. McAdams was in fact acting for appellant, and, if appellant thought there was testimony from which the jury might have found otherwise, and desired that issue submitted to the jury, a specific objection should have been made, calling attention to the assumption of this fact.\nMoreover, as none of the instructions requested by appellee, except instruction numbered 1, are set out in the abstract, a presumption arises from the failure so to do that correct instructions were given, curing this defect, if it is curable, and we third?: it might have been, by an instruction specifically submitting that question to the jury.\nTh\u00e9 testimonv of appellee, corroborated by the statement of Dr. McAdams, is sufficient to support the finding that appellee signed the release under a misapprehension of the extent of his injury, and that this misapprehension was induced by the representations of Dr. McAdams. No attempt was made to prove that any fraud was practiced upon appellee to induce him to sign the release, and it is admitted that Dr. McAdams acted in good faith in the expression of the opinion that appellee\u2019s injury was not of a permanent character.\nIt is true the release recited that appellee, in signing it, was acting wholly upon his own judgment as to the nature and extent of his injury, and that no representations had been made in regard thereto upon which he relied. But this instrument was prepared by appellant, and all parties concerned knew that appellee had been examined by Dr. McAdams on the day the settlement was made for the sole purpose of ascertaining the nature, extent and probable duration of his injury, and that the purpose of this examination was to ascertain those facts so that the doctor might form an opinion \u25a0thereon. This examination was made in the presence of representatives of the company, and the conclusion reached, as a result of -this examination, was communicated to appellee, and was accepted by him as true, and, on the assumption of its truth, he agreed to accept the sum recited as full compensation for his injury. Had these representations been substantially correct, appellee would have been bound by this release, although it might later have developed that he had settled for too small a sum. But it is now admitted that the doctor was mistaken, and, if he was in fact the company\u2019s physician in making the examination and in reporting the result ther\u00e9of, then appellee was not bound by the release. This is the effect of the holding in the cases of St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614; St. L. I. M. & S. R. Co. v. Reilly, 110 Ark. 182; St. L. I. M. & S. R. Co. v. Morgan, 115 Ark. 529; Griffin v. St. L. I. M. & S. R. Co., 121 Ark. 433; C. R. I. & P. Ry. Co. v. Smith, 128 Ark. 223.\nNo prejudicial error appears, and the judgment is affirmed. \u2019 ' ' .......", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Cooley \u25a0& Adams and Hughes & Hughes, for appellant.", "J. F. J\u00f3hnston and Gcmtney \u2022& Dudley, for appellee." ], "corrections": "", "head_matter": "F. Kiech Manufacturing Company v. James.\nOpinion delivered April 28, 1924.\n1. Appeal and error \u2014 refusal of instructions \u2014 presumption.\u2014 Where appellant fails to set oiit all of the instructions given by the court, it will be presumed that, in so far as refused instructions correctly declared the law, they were covered by other instructions given.\n2. Trial \u2014 specific objection to instruction. \u2014 In a personal-injury action, where defendant pleaded a release signed by defendant as a defense, specific objection should have been made to an instruction which assumed that the doctor upon whose representations plaintiff claimed to have relied was defendant\u2019s employee, if such question should have been submitted to the jury.\n3. Appeal and error \u2014 presumption where instructions not set out. \u2014 Where none of appellee\u2019s requested instructions except one complained of by appellant were set out in appellant\u2019s abstract, the presumption arises that correct instructions were given correcting the defect if it was curable.\n4. Release \u2014 when not binding. \u2014 Where plaintiff, injured in defendant\u2019s employment, signed a release relying upon a mistaken opinion of the defendant\u2019s doctor that his injury was not permanent, he was not bound thereby, notwithstanding the release recites that he acted on his own judgment, and that no representations were made upon which he relied.\nAppeal from Craighead Circuit Court, Jonesboro District; W. W. Bandy, Judge;\naffirmed.\nCooley \u25a0& Adams and Hughes & Hughes, for appellant.\nThe release was a contract between the parties, and must be tested by the principles of law which govern the reformation or rescission of other contracts. Where cancellation is sought on the ground of. mistake of fact, it must appear that it was a.mutual mistake. 1 Black on Rescission and Cancellation, \u00a7 128, pp. 362-3; 2 Black p. 975. While this court is committed to the rule that an innocent misrepresentation of the facts of the releasor\u2019s injury, made by the releasee\u2019s physician, may be effective to avoid a release induced thereby (87 Ark. 614), it is equally true that, where a releasor relies upon the opinion of his own physician, which proves to be incorrect, there is no grounds for setting aside the release (20 Ann. Cas. p. 750). Citations on the two points are found at 136 Fed. 118; 156 N. W. 251; 34 Cyc. 1059; 23 R. C. L. p. 292; L. R. A- 1916B, p. 784; 110 Ark. 182; 115 Ark. 629; 121 Ark. 433; 128 Ark. 223; 1 Black p. 163; Id. p. 238-239. It was a disputed question as to whose agent Dr. McAdams was, and it was error to give appellee\u2019s instruction No. 1, which assumed that Dr. McAdams was the agent of the appellant. Appellee is estopped to repudiate his release. 89 Ark. 321; 47 Ark. 335. No representation was made by appellant, and the release declares that the releasee was relying upon his own judgment. This case does not come within the class of cases found at 143 N. Y. 424, where false representations were made.\nJ. F. J\u00f3hnston and Gcmtney \u2022& Dudley, for appellee.\nAppellant only made a general objection to instruction No. 1. The same instruction has been approved in 87 Ark. 614; 93 Ark. 589; 139 Ark. 69." }, "file_name": "0137-01", "first_page_order": 159, "last_page_order": 166 }