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Mathias v. Baltimore & O.r. Co.

MARCH 20, 1968.

MORGAN J. MATHIAS, PLAINTIFF-APPELLEE,

v.

THE BALTIMORE AND OHIO RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WILLIAM M. BARTH, Judge, presiding. Reversed and remanded. MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 19, 1968.

Defendant appeals from a jury verdict and judgment for $30,000 for personal injuries.

Plaintiff's complaint filed November 21, 1960, under the Federal Employers' Liability Act (45 USCA § 51) alleged that on November 21, 1957, while working for defendant at Willard, Ohio, plaintiff was injured by a ladder striking him on the head when it was knocked over by another employee pushing a wagon. Defendant's answer denied the allegation of the complaint and affirmatively defended on the ground that on March 10, 1958, in consideration of the sum of $1,500 plaintiff released defendant of all claims and demands. Plaintiff's reply to defendant's answer set out fraud and misrepresentation in the procurement of the release and a mutual mistake of fact as to the nature and extent of the injuries. During the trial defendant admitted liability for the accident and the trial proceeded on the issue of the validity of the release.

On appeal defendant contends:

1. That the court erred in not directing a verdict in favor of defendant;

2. That it was error not to allow the showing of defendant's surveillance movies;

3. That the court erred in submitting a special interrogatory on mutual mistake and refusing to submit a special interrogatory on fraud; and

4. That the court committed other trial errors.

Testimony of Plaintiff

On November 21, 1957, while working for defendant at Willard, Ohio, he was struck on the forehead by the top of a falling ladder. He fell to the ground bleeding profusely from a one and one-half inch cut; he received first aid but was sent home by Dr. Drury and told to take the rest of the day off and apply ice packs. He did not return to work until November 27 but worked from then until January 10, 1958; he had bad headaches and saw Dr. Drury three or four times during that period and received pain pills. His first fainting spell occurred on December 7, 1957, and the spells lasted until March; he was ordered to go to Willard Municipal Hospital for X rays in December of 1957, where he received pain pills and diathermy and was advised to have heat treatments. On January 10, 1958, Dr. Drury told him to stay off work for a week. He saw Dr. Book at Willard Hospital and was directed to go to Chicago St. Luke's Hospital for examination by Dr. Harry Mock and two other specialists where he received spinal, brain wave and X-ray tests and had water injected into his ear. He was kept in traction from February 5 until February 21, 1958. He was told by Dr. Mock that there was nothing the matter with him and he believed it. On March 10, 1958, he had a conversation with Mr. Leaman (District Claim Agent for defendant) at his office; Mr. Leaman told him that he would have to sign a release to obtain his back wages and they would "come up with fifteen hundred dollars." Mr. Leaman told him that he couldn't come back for more money if he signed that release ". . . but they would play fair with me if [sic] any future doctor bills or if I had to go back to the hospital or anything like that they'd take care of it, and at that time I thought he meant wages also if I was off any more." He signed the release and received $1,500 less the $329 which had been paid to him prior to that time as sick benefits.

He returned to work the next day, March 11, 1958. The defendant paid $325 in doctor bills after the settlement; however it stopped paying in April 1959. When he continued to suffer from dizziness and pain in his neck, he called in sick on May 25, 1960, and that was his last day of work on the railroad. He lost no time from work between March 1958 and May 1960. He saw Dr. Drury 156 times after the B. & O. stopped paying, receiving diathermy treatments, pain pills and circulation pills for dizziness. He still suffers from dizziness, pain and severe headaches for which he took the pain and circulation pills prescribed by Dr. Drury and applied heat. The pills helped but caused extreme pain in his left eye. The defendant refused all medical expenses after August of 1959.

Prior to the accident he had no complaints of dizziness or pain in the back of his neck and no doctor had told him he had arthritis. (Defendant's Exhibit 12 showed that in a complaint filed for a disability allowance with the Veterans Bureau in 1930 he listed symptoms of "dizziness, frequent urination, pains in back and through chest, severe headaches, nervousness.") Dr. Drury was the only doctor actively treating him; the others were only examining him. He had a little dizziness between the time of the accident and the time he signed the release but he didn't know at the time of the signing that he would suffer from fainting spells and pain in the back of the neck. The dizziness grew worse after the release, and he found it difficult to work around moving equipment now.

Testimony of Milton Leaman, witness for defendant

He was the claim agent who negotiated the release from plaintiff for $1,500. The amount of plaintiff's lost wages was $776.96. In addition to the $1,500 settlement, $886 was paid by defendant for plaintiff's medical expenses. He told plaintiff that he could not come back at any later date and receive anything; that defendant would take care of future medical bills so long as the medical department went along with it; that Leaman knew that plaintiff was receiving "future medical," and that he was going to Dr. Drury, and that this was ...


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