Appeal from the Circuit Court of Madison County; the Hon. FRED
P. SCHUMAN, Judge, presiding. Judgment affirmed, cause remanded
for new trial on the issue of damages only.
Rehearing denied and supplemental opinion October 2, 1969.
Defendant, Terminal Railroad Association of St. Louis, appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $60,000.
Plaintiff's complaint, as amended, alleges a cause of action based upon the Federal Employers' Liability Act (45 USCA 51, et seq.) arising out of an occurrence in April 1964, in defendant's C.D. Yard near East St. Louis, while plaintiff was employed as a switchman. In its answer, as an affirmative defense, defendant pleaded the execution of "a full and complete release." Plaintiff replied, averring that the release was not binding because it was executed "under a misapprehension of fact" and an erroneous conception of the nature and extent of the disability suffered; the release is supported by a totally inadequate consideration, and resulted from defendant and its agent overreaching plaintiff, and the release was procured by fraud and deception.
In its case, defendant called plaintiff under section 60 of the Civil Practice Act. During the interrogation of plaintiff, plaintiff's counsel stated "our only contention about this release is the mutuality of a mistake of fact of this medical condition."
Plaintiff testified that after he was released from treatment for the injury he was told there was nothing wrong with his knee, it was just a bruised muscle and he could go back to work when he felt up to it. When he talked to William P. Bittle, defendant's claim agent, Bittle told him the doctor said all he had was a bruised muscle.
In rebuttal, plaintiff read from Bittle's discovery deposition, as follows:
"Q. The report which you had, would that indicate to you that there was any residual in this injury that was suffered?
"A. I said `No' and he made no complaint as I recall.
"Q. At the time you took the release, the contemplation was that, or your understanding at least, was that he had recovered from this injury?
"A. Right, he had been working two days."
The trial court, holding that the release was taken under a mutual mistake of fact as to the nature and extent of plaintiff's injuries, directed a verdict on the issue, and defendant, as its first assignment of error argues that in so doing, it erred.
[1-3] The validity of a release attacked in an action brought under the Federal Employers' Liability Act is governed by federal law. Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 96 L Ed 399, 72 S Ct 312. The burden of proving the release invalid because of a mutual mistake of fact is on the plaintiff, Callen v. Pennsylvania R. Co., 332 U.S. 625, 92 L Ed 242, 68 S Ct 296, and it must be proved by a preponderance of the evidence, Purvis v. Pennsylvania R. Co., 198 F.2d 631. There is nothing in the Federal Employers' Liability Act or the decisions of the Supreme Court of the United States which precludes the direction of a verdict in a proper case, Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 1 L Ed2d 493, 77 S Ct 443.
The only evidence of record on the issue is the testimony of plaintiff, and the admissions contained in Mr. Bittle's deposition. This case is clearly distinguishable from Callen v. Pennsylvania R. Co. (supra), upon which defendant principally relies, in that in Callen the claim agent testified that he determined the amount of the settlement on the basis of his belief that there was no liability, and the defendant strenuously contested the issue of whether plaintiff was suffering any further disability. Here the defendant offered no evidence on either the ...