
    Dock Robinson, Appellee, v. R. O. Meek, Appellant.
    1 PLEADING-: Issues, Proof, and Variance&emdash;Similar Representation. An allegation that a representation was that a doctor’s charge “would not exceed $10’’ is properly met by proof that "the representation was that the said charge “would -be about $10.’’ (See Book: of ■ Anno., Vol. I, Séc. 11177.) -,....
    •2 RELEASE: Fraud&emdash;Jury Question; A jury question' a;s to the validity of a release of personal injury damages is made-by proof that the releasee represented that the doctor’s charges would be “about” $10, and that the representation was materially false, and was made to the releasor and acted on by him when he was alone and practically helpless from his injuries.
    Headnote 1: 31 Oye. pp. 701, 703. Headnote 2: 34 Oye. pp. 1105, 1106.
    
      Appeal from Black Hawk District Court. — E. B. Stiles, Judge.
    November 16, 1926.
    Rehearing Denied February 19, 1927.
    Action for personal injuries resulting from an automobile collision. The defense was a general denial and a plea of compromise and settlement. The reply pleaded fraud, in avoidance of the settlement. There was a verdict and judgment for the plaintiff, and the defendant appeals.
    
    Affirmed.
    
      'Mears ¡& Lovejoy and C. C. Putnam', for appellant.
    
      Reed, Tuthill As Reed, for appellee.
   Evans, J.

I. The accident in question happened at 5:15 P. M. on October 21st, at the intersection of Independence and Irving Streets in the city of Waterloo. Independence is an east and west street, and Irving is a north and south street. .Both parties were traveling on Independence Street, — the plaintiff going east, and the defendant going west. The plaintiff rode a bicycle, and the defendant drove an automobile. The defendant approached Irving Street from the east, and turned south on Irving. The plaintiff approached Irving Street from the west, and proceeded on Independence Street across Irving Street. He had nearly crossed the intersection with Irving Street when the collision occurred. His claim is that the defendant, in turning from Independence Street into Irving, cut the southeast corner of the intersection, and failed to keep.to the right of the center of the intersection. The collision occurred at the southeast comer of the intersection. The automobile struck the plaintiff and ran over him for its full length. He was picked up ten feet behind the, automobile. Both bones of his left leg were broken near the ankle. The fracture was compound, — the broken bones protruding through the skin of 'the leg above the ankle. He suffered injuries to the head and shoulders and wrist, also. He was taken to the hospital, and came under the care of a- physician. The settlement pleaded by the defendant was had at-this hospital on the evening of- October 23d. The contract of settlement was procured -by the agent of an'insuring company. The fraud pleaded in avoidance was that the settlement was obtained from the plaintiff under a condition of helplessness on his part, and by ffalse representations made by the agent to him. The petition charged these representations to bé -that the doctor’s charges incurred would not exceed $10, and that his hospital bill would be'$5.00 a day for three or four days. The. evidence-was that the agent said to the plaintiff that the doctor’s charge would “be about $10.” The grounds of appeal presented by the defendant, as appellant, are concentrated upon this-evidence. Two points áre raised: (1) That-there is a fatal variance between evidence and pleading; (2) that the alleged false.represehtations testified to were mere expressions of opinion, and-furnished no actionable basis. "

As to the first proposition, the petition alleged that the-agent represented that the doctor’s bill would “not exceed $10.” The evidence in support of this allegation was as already stated. Was the variance necessarily material? That question depends upon still other evidence. If the doctor’s bill had been in fact $10 -or -less, the variance would be clearly -immaterial. If the doctor’s bill had been approximately $10, but slightly in excess thereof, the variance might be deemed material. At the time' this representation was made, the doctor’s bill amounted in- fact to $64. For the purpose of this case,' therefore, we think that- a-statement that the doctor’s bill would “not exceed $10,” and a statement that it was “about $10,” amount to the same thing, and present no material variance. The fact that the- court submitted the'issue to the jury as it was pleaded,' rather than-as it was proved by the testimony, could not work any prejudice, in view of the fact that both statements were so nearly identical, as compared with the true fact. We hold, therefore, that this-assignment of error is not available to the-appellant’. ■

II. The question whether the statements proved, constituted false representations, within the meaning of the law, is more. difficult, and involves a consideration, of evidence other 'than the-representations-themselves,: If-the evir dence -of the representations stood alone, un-, aided by the circumstances under whieh they were made, we should hesitate to hold them sufficient. The plaintiff is a--colored man, reared in Arkansas, and brought to Waterloo- by his • employer a year or two before the accident. His education was limited, but he was able to read and write in some degree, and was an intelligent and industrious laborer, who commanded a wage of $5.00 a day at a particular job for. the round -year. The fracture of- his leg was'a very serious injury.. It.was some days before the doctor was able to get a. successful, reduction thereof.: We -purport only to recite facts which plaintiff's evidence tended fairly to prove; The- defendant, Meek, called to see the-plaintiff-on his first evening at the hospital, which was-Tuesday. He assured him at that time that-his ■ expenses would be eared for: On Thursday evening,- ¡he came again,; -bringing with him the insurance agent. They came without any-, previous appointment,- and-without any declared purpose. The conversation in the first instance was the casual, conversation of visitors. The plaintiff was suffering, great pain. His. leg was in- a splint,.-and was held .in an.elevated position, from which a weight, was suspended over a- pulley. ■ His head had been injured, and he was suffering from great headache and from roaring in his head; Sleeping tablets had been, administered to him, and a “shot in the-arm.” This was his physical condition. -He-had no one present to advise or assist him. • He had no warning that he Would need any- advice or assistance. The; conversation was one-sided.- The defendant assured, hita that his expenses ■ would ■ all be cared- for.. -He appears to - have, been appreciative of defendant's" solicitude. The. record, discloses that the plaintiff, assented to. everything that Was .said or proposed to him.: .After making -the representations testified "to,the agent said to hita, “I will give you $125. Will that be all right?” ■ The plaintiff-answered,-“I guess so.” The'agent immediately wrote out the contract of settlement. When he-found that the' plaintiff could not read it,- because of his condition, .he read it to him; :The plaintiff, testified, that he could not understand him because-he- read so fast. The settlement appears to have been- accomplished in.a very brief.-time. No.objection was-made'by-.plaintiff to tbe offer;.no counter.proposition was, sug-. gested'by bim. ■ The' agent executed .the cheek, and)left-it upon-a little.table at the side of plaintiff’s bed,-and:directed him to: give it to his-wife in-the'morning. This he did.- It does not' appear that a copy of the .contract was left with .him. Shortly thereafter, and after he had- opportunity. ■ to ■ obtain. advice,, he purported to -rescind--the settlement, 'and-¡served-.’notice, accordingly, and-tendered the return of. the money. ¡The plaintiff-testified concerning the representations as follows: i ■ -<

■ ‘‘When the insurance adjuster and Mr. Meek first came out’ to the hospital that night,-they asked me how the accident hap-pened, and I told them, as near as I-could, and he. finally asked me about $125. ¡He said the doctor charged.me about-.$10 for. setting a leg, and I would■ he in the hospital three or four days,- and that would be about $5.00 a day. Then I would.be ready to! go home; and-he asked:me again about-$125,..and -I told him. I reckoned so. ■* # -* Q. Did. the insurance adjuster, read it-to you?. A. Yes, sir;’he read .'it .so fast, and-did -not talk very loud,-and I could not-understandwhat.he said. I did not understand what he said; because I had such an- awful' headache and roaring in the head ; ¡and I. had.been given-some rest-tablets .by the-doctor, and the-sister gave me- a shot in the-arm; and I’did-not. understand what he said.’’ ■ ■ ■ : . .-

The doctor’s bill incurred up to the time-of the.-trial -amount- - ed to $507, and the hospital-bill to $215-. The plaintiff had not yet-recovéred, and.had no-prospects of-recovery within less than-two or three months. The trial was had about six months after the accident.- It is evident.from -the-foregoing that the.plaintiff was under a considerable .degree of disability, and that he was not in a condition to transact important business or to protect himself in the proposed settlement. His condition was necessarily apparent to the parties dealing with him. Though the contents of .the writing were read to. him, they were read so rapidly that he could not understand the same. He did understand the conversation preceding, but there was nothing said, in that conversation to indicate that.there was to-be.a writing. Nor was anything said in the conversation which would advise him that the acceptance, of $125. would be-an absolute bar against his demanding more, in case his .doctor’s bill and hospital ..bill exceeded the amount pressed upon him by the agent. On the contrary* the defendant assured him that his expenses would be cared for. The helpless condition of the plaintiff was pleaded in the reply,"as an incident of the fraud. Without holding that the mere representations herein set forth' were of themselves sufficient to impeach this settlement, if they had been made under different circumstances from those indicated herein, wé reach the= conclusion that the question of fraud and fraudulent representations, in the light of plaintiff’s then • physical and mental condition and capacity, was fairly one for the jury.. In Kilmartin v. Chicago, B. & Q. R. Co., 137 Iowa 64, wherein we sustained the settlement, we said (pages 70 and 71):

“Settlements made with an injured party by a claim agent of á railroad, who is rushed to the scene, and who deals with-the-injured person before he has had time to realize what he has sufféred, or is likely to suffer, and without opportunity for consultation* may well be looked upon with suspicion; but in:this case we think there is no evidence of fraud or imposition.”

In Kilby v. Charles City W. R. Co., 191 Iowa 926, we said:

“This is not a case where an adjuster for a company rushes to a recently injured- party, and hastily secures a settlement, without giving the injured party opportunity -for reflection or to obtain counsel. * * * The amount of the settlement was not unsubstantial or trivial, and not siich as to shock the conscience or be indicative of fraud.” •

The foregoing statements are- quite descriptive of the situation in the case at bar. No other assignment of error is argued than the foregoing.

The- judgment below must be affirmed. — Affirmed. ■ ■ .

De Grape, C. J., and Albert and Morling, JJ., concur.  