{ "id": 1435107, "name": "Phoenix Utility Company v. Smith", "name_abbreviation": "Phoenix Utility Co. v. Smith", "decision_date": "1932-04-11", "docket_number": "", "first_page": "587", "last_page": "590", "citations": [ { "type": "official", "cite": "185 Ark. 587" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "31 S. W. (2d) 963", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "182 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1389789 ], "opinion_index": 0, "case_paths": [ "/ark/182/0484-01" ] }, { "cite": "4 S. W. (2d) 528", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "176 Ark. 737", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399862 ], "opinion_index": 0, "case_paths": [ "/ark/176/0737-01" ] }, { "cite": "293 S. W. 9", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "173 Ark. 729", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723995 ], "opinion_index": 0, "case_paths": [ "/ark/173/0729-01" ] }, { "cite": "283 S. W. 81", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "171 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1369509 ], "opinion_index": 0, "case_paths": [ "/ark/171/0103-01" ] }, { "cite": "261 S. W. 124", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "164 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1382151 ], "opinion_index": 0, "case_paths": [ "/ark/164/0137-01" ] }, { "cite": "193 S. W. 791", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "128 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1581932 ], "opinion_index": 0, "case_paths": [ "/ark/128/0223-01" ] }, { "cite": "171 S. W. 1187", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "115 Ark. 529", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1533795 ], "opinion_index": 0, "case_paths": [ "/ark/115/0529-01" ] }, { "cite": "171 S. W. 123", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "115 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "145 S. W. 534", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "102 Ark. 621", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354000 ], "opinion_index": 0, "case_paths": [ "/ark/102/0621-01" ] }, { "cite": "113 S. W. 803", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "87 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519173 ], "opinion_index": 0, "case_paths": [ "/ark/87/0614-01" ] } ], "analysis": { "cardinality": 364, "char_count": 5469, "ocr_confidence": 0.507, "pagerank": { "raw": 1.1654840247411978e-07, "percentile": 0.5850304399986254 }, "sha256": "8624f1df8b9624e4c288f9060803eb3cff1b22859360c374703150f739a2c5e7", "simhash": "1:b91fe4125b214666", "word_count": 1000 }, "last_updated": "2023-07-14T16:31:44.100435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Phoenix Utility Company v. Smith." ], "opinions": [ { "text": "Smith, J.\nAppellee sustained a serious injury on May 28, 1930, by being thrown from an engine and being dragged by the engine along the track upon which the engine was being run. He recovered a judgment against appellant to compensate his injury, from which is this appeal.\nNo question is raised here as to appellant\u2019s liability, it being- insisted only for the reversal of the judgment appealed from that appellee\u2019s cause of action had been compromised and settled before the case was tried in the court below.\nAfter his injury, appellee was treated at his home by a physician furnished by appellant, his employer, until June 2, when he was carried to a hospital, where, on June 4, he was operated on for double hernia. On June 13, which was nine days after the operation, appellant\u2019s adjuster visited appellee at the hospital for the purpose of settling his claim for damages.\nAppellee stated that he was not ready to settle and would not be until he had consulted his doctor. The adjuster said: \u201cYou see the doctor, and I will return next Friday,\u201d which was June 20. On the 20th Dr. Tribble, who had performed the operation under employment by appellant, called on appellee at the hospital, and appellee said to him: \u201cDoctor, the insurance adjuster was over Friday, and I would like to know how long it will be before I will be able to go back to work. \u2019 \u2019 According to appellee, the doctor answered: \u201cYou will be able to go back to work in three months. You will be just as good as you ever were, or may be stronger. \u2019 \u2019 Later in the day the adjuster called on appellee and asked: \u201cAre you ready to settle?\u201d and appellee answered: \u201cI guess I am; I saw the doctor. \u2019 \u2019 The adjuster asked: \u2018 \u2018 Are you ready to leave the hospital?\u201d and appellee answered: \u201cI don\u2019t know; I never asked about leaving the hospital.\u201d The adjuster said he would see Dr. Tribble, and he left the hospital, but soon returned and reported to appellee that lie had seen Dr. Tribble and that the doctor had said that appellee would be all right in three months, and that appellee could leave the hospital, and he did leave the hospital on that day, having been in the hospital about sixteen days after his operation.\nDr. Tribble testified that the operation was a proper and perfect one, and admitted that he had told appellee that he would be all right in three months and able to do his work as well as ever, unless there was some complication, and that recovery from such an operation was usually complete in three months.\nAppellee testified that he and the adjuster figured what his wages would be for three months, if he were working, and, as the amount was slightly less than $400, they agreed upon a settlement for that amount.\nIt was the insistence of appellee in the court below that he relied upon and was misled by the statement of appellant\u2019s physician that he would be well and able to resume work within three months, whereas at the time of the trial from which this appeal comes in November, 1931, he was still suffering pain and was unable to work.\nThe jury returned a verdict for appellee in the sum of $3,000, less the $400 previously paid, and judgment was rendered accordingly.\nThe issue of fact in the case was submitted in an instruction given at the request of appellant, which reads as follows: \u201cYou are instructed that, before the plaintiff is entitled to recover in this ease, he must first avoid the release executed by him, and that to avoid that release the burden is on the plaintiff to show by a preponderance of the evidence that Dr. Tribble told him, as his unqualified opinion, that he would be fully recovered from his injuries in three months, and that at the end of three months he would be able to .go back to work, and that he had not so recovered at the end of that time; and, unless he discharges that burden, the release he executed is a valid release and your verdict must be for the defendant.\u201d\nThis instruction was as favorable as appellant could ask, as this court has frequently held that a release is not binding on the releasor where the physician of the party responsible for an injury represents to the injured person that his injuries are temporary, when, in fact, they are permanent, and the injured person executes the release relying upon such statement of the physician of the party responsible for the injury. St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; Francis v. St. Louis, I. M. & S. Ry. Co., 102 Ark. 621, 145 S. W. 534; Kansas City Southern Ry. Co. v. Armstrong, 115 Ark. 128, 171 S. W. 123; St. L., I. M. & S. Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187; C., R. I. & P. Ry. Co. v. Smith, 128 Ark. 223, 193 S. W. 791; F. Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 124; St. L.-S. F. Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 81; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9; M. P. Rd. Co. v. Elvins, 176 Ark. 737, 4 S. W. (2d) 528; K. C. S. Ry. Co. v. Sanford, 182 Ark. 484, 31 S. W. (2d) 963.\nThere is no contention that Dr. Tribble intentionally deceived appellee or practiced any fraud upon him., but the testimony supports appellee\u2019s contention that he relied upon the doctor\u2019s opinion as to his recovery, and that the doctor was mistaken in his prognosis.\nThe judgment of the court below must therefore be affirmed, and it is so ordered.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Buzbee, Pugh $ Harrison, for appellant.", "Arthur Cobb and Murphy Wood, for appellee." ], "corrections": "", "head_matter": "Phoenix Utility Company v. Smith.\nOpinion delivered April 11, 1932.\nBuzbee, Pugh $ Harrison, for appellant.\nArthur Cobb and Murphy Wood, for appellee." }, "file_name": "0587-01", "first_page_order": 607, "last_page_order": 610 }