Ozan Lumber Company v. Bishop , 203 Ark. 625 ( 1942 )

If it were conceded that the verdict is grossly excessive and, for that reason, should be reduced, yet that is not what the majority do. The judgment is not reduced; the cause of action has been dismissed.

It is undisputed that appellee received an injury for which he should have compensation, if appellant is liable for that injury. Indeed, the majority opinion concedes that the testimony is sufficient to support the finding that the injury is permanent, although it is stated that such a finding would be clearly against the preponderance of the evidence. Needless to say, that is a question for the jury, and not for us.

But the majority hold that appellee should receive nothing notwithstanding his injury. It does not appear to be seriously questioned that appellee's own testimony, and other testimony in his behalf, makes a question for the jury as to appellant's liability for the injury. The decision is put upon the ground that appellee's written statement shows there was no liability, and it is said that he did not testify that this written statement was untrue. He may not have denounced it as false, but the purport of his testimony at the trial is that the written statement was false. He certainly did not admit at the trial that the written statement was true. Had he done so, the learned trial judge would, no doubt, have directed the jury to return a verdict against him.

The situation presented is not at all unusual. It is one which has occurred in scores and scores of cases, as is reflected in innumerable personal injury opinions rendered by this court. It has never been held that a plaintiff whose testimony at the trial established liability for an injury may not recover for the reason merely that he had previously signed a statement from which it appeared that his injury was not occasioned by the master's negligence. It has always been held competent to contradict the plaintiff by the production of such evidence, just as it is competent to prove any other statement by the plaintiff against his interest.

It must be remembered that the writing was not a compromise and settlement of plaintiff's injury, and was not offered in evidence as such. Its only purpose was to contradict the testimony of the plaintiff given at the trial, for which purpose it was, of course, competent. No consideration was paid plaintiff as compensation, in whole or in part, for his injury, and no contention is made that the writing was in any sense a settlement or release.

Plaintiff testified, as the majority opinion recites, that the facts stated in the writing were obtained, "partly so," from him, and that he signed the writing, as did his wife, who knew nothing, and did not profess to know, anything about the injury, and that he signed the paper without reading it upon the representation that this was necessary for the company to take care of him. This may not have been true, but the truth of this testimony was a question for the jury, and not for us.

Had this writing been contractual in its nature (but it was not), executed for a consideration, in settlement and release of liability for the injury, it would not have been binding had its execution been procured through fraud or misrepresentation as to its contents and purposes.

Appellee testified that he signed the paper in a truck, without opportunity to read it, and that on account of the condition of his eyes he could not read it, and under the impression, induced by Johnson, the company's adjuster, that it was all for the purpose of having the company take care of him. Johnson was not called to contradict this testimony, and it stands undisputed in the record.

Let it here again be called to mind that the writing was not a release, and even though it were it would not necessarily bar the suit. It was held in the case of Union Compress Warehouse Co. v. Shaw, 187 Ark. 249,59 S.W.2d 1021, that, while one may not avoid the effect of a release by proof that he did not read it when he signed it or know what it contained, he might avoid the release by showing that he was induced to sign by deception practiced upon him, whether such deception was intentionally fraudulent or not. There are many other cases to the same effect, one of these appearing in the last volume of our printed reports, the case of Harmon v. Harrison,201 Ark. 988, 147 S.W.2d 739.

In my opinion, the writing did not bar this suit, and was of evidentiary value only to contradict the testimony given by appellee at the trial, and the cause should not be dismissed.

The views here expressed accord with the decision of this court in the case of Public Utilities Corp. v. Corden,182 Ark. 858, 32 S.W.2d 1058, presenting the same state of facts.

I am authorized to say that Justice HUMPHREYS concurs in the views here expressed.