Johnson v. Chicago, Rock Island & Pacific Railway Co.

107 Iowa 1

Opinion

Given, J.

1 I. Plaintiff complains of said rulings on his reply and amendments. To avoid the admitted settlement, plaintiff relies upon certain representations claimed to be false, made to him to induce the settlement, and by which he was induced to make it. Each representation relied upon shotdd have been plainly stated in the reply, with allegations of their falsity, and that they were made to be and were relied upon in making the settlement. The reply and amendments are mainly extended statements of matters claimed to support the charge of fraud. They axe statements of evidence, rather than of ultimate facts. Whatever error there may have been in these rulings was cured by allowing that part of the last amendment to stand that was retained, as thereby the issue of fraud in the settlement is as fully presented as it had been pleaded, and the parts excluded did not enlarge the issues nor the scope of the evidence.

2 II. The grounds of defendant’s motion for a verdict may be summed up as follows: That there is no evidence tending to show that the alleged representations were false, nor that they were relied upon, nor that they were the sole inducement to the settlement, nor that plaintiff was induced or misled thereby, no evidence tending to avoid said settlement, and that there is evidence tending to show that plaintiff sought and brought about the settlement himself. In considering the ruling on this motion we notice briefly the facts upon which plaintiff’s cause of action rests, as shown by his testimony, and then more particularly the evidence as to the settlement. Plaintiff, then aged nineteen and Nicholas and Hanson, boarded defendant’s freight train with the intention, as it is expressed,' of “beating their way, of stealing a ride,” knowing that it was not allowed by the company, and that the trainmen had orders to put such persons off the train. As the train was nearing Altoona at slackened speed, defendant’s brakeman, in a threatening manner, and in threatening words, ordered plaintiff to get off the train, and refused to allow him to wait until the train stopped. Plaintiff proceeded to go down the ladder from the top of the car, and when on the ladder the brakeman forced him to loosen his hold on the ladder, by reason of which he fell, and his left leg was run over and injured so as to require amputation. This is the substance of the testimony of plaintiff and Nicholas, the only witness of the accident who was examined, as to how it occurred. This action was commenced March 17, 1895, George W. Lafferty and B. W. Preston appearing as attorneys for the plaintiff. On a day in October, 1895, the plaintiff and his mother, Mrs. Carter, then living in Oskaloosa, without any solicitation from the defendant, called at the office of George E. McCaughn, attorney and adjusting agent for the defendant, in the city of Des Moines, and the admitted settlement was then and there made by plaintiff and McCaughn, plaintiff’s counsel not being present. Plaintiff and his mother were the only witnesses examined as to what took place at the settlement, and their testimony as to the alleged false representations is, in substance., this: Mrs. Carter says McOaughn claimed that plaintiff had no case; that they could prove by five or six witnesses “that the brakeman didn’t throw plaintiff from the train, and didn’t curse and abuse him.” Plaintiff testifies: “McCaughn said he could prove by five or six witnesses that the brakeman didn’t lay his hands on me, and that I didn’t, have no case, and had better settle.” Mrs. Carter said to McCaughn, “What would Mr. Lafferty say if we were to compromise without his presence ?” and he replied that “it was not necessary to have Lafferty, because we and him and John could settle this case without Lafferty,” and that, if Lafferty found it out, “send him to me, and I will buck against him.” When discussing the amount to be paid, McCaughn said that he was representing the company, and would not allow more than one hundred and fifty dollars, and that was all the company would allow; that he had to do as the company said, and that Lafferty had offered to compromise for a great deal less than five hundred dollars.! In reply to Mrs. Carter’s demand for five hundred dollars McCaughn offered to give her fifty dollars in addition to.the .one hundred and fifty dollars on account of plaintiff’s 'boarding' after he left the hospital, and before he fully recovered, and thereupon she advised plaintiff to take the one hundred and fifty dollars, and the settlement was concluded, and the two hundred dollars paid as agreed. ■

3 4 III. The representations alleged of which there is evidence are these: That plaintiff had no cause of action; that defendant could prove by five or six witnesses that the brakeman did not curse and a.buse plaintiff, nor lay hands on him, or force him from the train. Plaintiff’s counsel cite á large number of authorities, but, as the rules applicable to this case are undisputed, we need not notice them at length. They say: “We are aware that, in order to avoid a contract on the ground of fraud, under the doctrine of Holmes v. Clark, 10 Iowa, 423, it must appear that the representations were false; second, that the vendor knew them to be false when making them; and, third, that they were made for the purpose of inducing, and-did induce, the vendee to enter into the contract. This doctrine has been the authority in several subsequent cases. Put our own courts have in one or more cases recognized the fact that there are exceptions, and, if it- is' disputed, they will be pointed out before this case is fully submitted.” The cases cited do not show exceptions to this rule, but the application of it to the varying facts of the cases. The first representation that we have to consider is 'that plaintiff had no cause of action. That was but the .expression' of an opinion. Plaintiff quotes from Stebbins v. Eddy, 4 Mason, 417, Fed. Cas. No. 13,342: “If a person expresses as his opinion what is Uot his opinion, and knowing that the facts are not what his'expressed opinion would imply that they were, he may, in case the other party is entitled to rely on his opinion, be guilty of fraud. If the statement is one of belief, the contradiction of the good faith of the person making it is to be established, not by showing that the fact‘is different than the representation, but that the opinion and belief were fraudulently misrepresented. It has been suggested that fraud cannot be predicated of belief, but only of facts. But this distinction is quite too subtle and refined. The affirmation of belief is the affirmation of fact, — that is, the fact of belief; and if it is fraudulently made to mislead or cheat another, to abuse his confidence, or to bind his judgment, it is in law or morals just as reprehensible as if any other fact was affirmed for like purpose.” There is no evidence that it was not the opinion of McCaughn that plaintiff had no cause of action; indeed, the record leaves no doubt that such was his opinion, and that it was expressed in good faith. The relation of the parties, and the facts attending the settlement, preclude the idea that plaintiff had a right to or did rely upon that expression of opinion. He had, no doubt, been advised by his counsel as to the case, and he and his mother seem to have been aware of the importance of evidence as to the conduct of the brakeman.

5 IV. As to the representations that defendant could prove by five or six witnesses as stated above, there is no evidence whatever that it was false, nor that it was not believed by McOaughn to be true. Plaintiff’s counsel assume that there was no other person within view at the time of the accident than plaintiff, Nicholas, and Hanson, and that defendant could not, therefore, have five or six witnesses by whom to prove as represented. Nicholas does not' say that there were not others in view, and plaintiff says: “I rode on the east end of the car. The train was going east. One Ira Nicholas and some other parties were on the west end of the "car next in front of me. * * * I got on. the train after Ilanson did. Some other parties were on the train when I got on. * * * 'pkg other men were on the car just in front of me. I didn’t know them. * * * - Hanson and I were lying close together. * * * -There were some parties on the next car in front of me, some seven or eight feet away.” Under this evidence it cannot be said that the representation that defendant could prove as stated, by five or six witnesses, was false. McCaughn did not say by whom nor how he could prove as stated. He did 'not say it was by eyewitnesses. If it were true that but the three were present, it does not follow that defendant could not prove as stated by showing statements of the plaintiff as to how* the accident occurred.' There being no evidence tending to show that this representation was false, or that McCaughn did not believe it to be true, there was no error in not submitting the issue to the jury.

6 7 V. The evidence shows that McCaughn said it was not necessary to have Mr. Lafferty present at the settlement, that they could make the settlement, and that Lafferty had offered to settle for less than five hundred dollars. Whatever may be said as to the impropriety of making this settlement in the absence of Mr. Lafferty, it is certainly true that the representation that it could be made in his absence was not false. This settlement in his absence should be viewed with closest scrutiny. Plaintiff and his mother sought it. They seem to have understood that the case rested largely on proof of what the brakeman did, and of this plaintiff had exact knowledge. There were some important variances between the statements in the petition and the evidence as to- what the brakeman did. It was with this knowledge of his case that plaintiff consented to receive the one hundred and fifty dollars to himself and fifty dollars to his mother as a full settlement. We do not think there is anything in the facts or circumstances to show that the settlement was fraudulently procured because of the absen.ce of Mr. Lafferty. Plaintiff offered to prove by Mr. Lafferty that he had not offered to settle the case for less than five hundred dollars, and this evidence was excluded on defendant’s objection. There was no error in the ruling, for the reason that no such representation was set up in the reply or the amendments; not even in the parts that were ruled out. For the reasons stated, the judgment of the district court is affirmed.