Leach v. Mason Valley Mines Co.

1. Master and Servant — Personal Injuries — Workmen’s Compensation Law — Release—Validity. Under Workmen’s Compensation Act (Act of March 24, 1911, Stats. 1911, c. 1S3), section 11, allowing workmen to elect any other remedy at law, where a servant, a citizen and resident of California, executed in California a full and fair release of liis master from liability for injuries received in his employment in Nevada, which was valid in California, it was a valid defense to action by him in Nevada for such injuries, notwithstanding Rev. Laws. 5652, providing that no acceptance of any insurance, relief benefit, or indemnity by the person entitled thereto shall constitute any bar to any personal injury action, for, the cause of action being transitory, and being completely barred in California, it was completely extinguished everywhere.

Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge. Action by William 0. Leach against Mason Valley Mines Company. From judgment for defendant, plaintiff appeals. The alleged release comes within the provisions of section 5652, Revised Laws, and cannot constitute any defense in bar of appellant’s cause of action. The allegation that the release was executed in California makes no difference, because the employment, the injuries and the action were all in Nevada, and the law of the latter must necessarily govern. The alleged release attempts to set up a contract which is contrary to the policy of the state, and could not, therefore, be enforced by our courts. {Lawson v. Halifax-Tonopah Mining Co., 36 Nev. 596.) Objection being made, it was the duty of the lower court to exclude the release from the evidence, or at most to allow it to be used, not in bar but merely for the purpose of giving the jury an opportunity to reduce the amount of the consideration from their verdict, if they found that this was a consideration moving from the respondent and not from the Guardian Casualty Company. It was pleaded in bar, and not by way of reduction of the verdict. It was offered in evidence in bar, and was admitted as in bar of plaintiff’s right of action, was so treated by the court all through the trial, and in the final decision of the trial judge in directing a verdict for the defendant. {Robinson v. Baltimore & Ohio Ry. Co., 237 U. S. 84, 59 L. Ed. 851; Lawson v. Halifax, supra.) Even if the release had, in law, constituted a prima facie bar of plaintiff’s right of action, he was still entitled to have the several issues raised by his replies and supported by his evidence submitted to the jury for their decision; and the trial court very greatly erred in refusing to submit these issues to the jury for their decision. "On motion for directed verdict, it is not within the province of the court to weigh the evidence; but plaintiff is entitled to have the most favorable view of the evidence taken in his behalf.” {Hales v. Michigan Central Ry., 200 Fed. 533; Bolton Pratt Co. v. Chester, 210 Fed. 251; Travelers’ Ins. Co. v. Randolph, 78 Fed. 754; Worthington v. Elmer, 207 Fed. 306; Erie R. R. v. Weber, 207 Fed. 293; ErieR. R. v. Schults, 183 Fed. 673; Blount v. Railroad, 61 Fed. 375; C. O. Ry. v. King, 99 Fed. 251; Erie R. R. v. Rooney, 186 Fed. 16; M. & O. Ry. v. Yockey, 103 Fed. 365; Milwaukee Ins. Co. v. Rhea, 123 Fed. 81; Byers v. Pa. Steel Co., 159 Fed. 347; Tenn. Copper Co. v. Caddy, 207 Fed. 297; Yazoo Ry. Go. v. Wright, 207 Fed. 281; Evans v. Josephine Mills Co., 113 Ga. 1097; Mahuken v. Board, 59 N. J. 404.) Every fact and circumstance surrounding the execution of the release was fully disclosed and testified to by appellant, and no pleading could be drawn which, under the facts in the case, would in any manner affect the binding force of the release. There is not a suggestion in the record of any fraud or misrepresentation whatsoever on the part of respondent or any of its representatives. While appellant in numerous places in the record asserts that he made his settlement with the insurance company, it conclusively appears from his own testimony that he did know and understand that he was thereby settling his claim for damages as distinguished from any claim for insurance. There is no authority which holds that the mere undisclosed mental state of a party to a contract, unaccompanied by any fraud or misrepresentation on the part of the other party, will relieve him of his obligation under such contract. "The salutary power of courts of equity to rescind or reform contracts which do not express the real intention of the parties is not to be extended to cases where the contract, because of the mistake of one of the parties, fails only to express the meaning of that party, and he seeks relief purely on the ground of his own mistake.” (Moffett Co. v. City of Rochester, 91 Fed. 28.) "Every written contract carries the strong presumption that it expresses the terms agreed upon between the parties to it, and ought not to be reformed except when it clearly and satisfactorily appears that there has been a mutual mistake, or a mistake on. the part of the plaintiff accompanied by fraud on the part of the defendant, or by such acts on his part as would clearly be inequitable betweén the parties.” (Kleinsorge v. Rohse, 25 Ore. 51; Ramsey v. Smith, 32 N. J. Eq. 28; Deseret National Bank v. Dinwoodey, 17 Utah, 43; Crane v. McCormick, 28 Pac. 222; Comer v. Granniss, 75 Ga. 277; Griffin v. O’Neill, 29 Pac. 143; Brown v. Levy, 69 S. W. 255.) In the case at bar appellant confessedly retained the full amount of the settlement, and has made no offer to return same, or any part thereof. "But there is another insurmountable obstacle in the complainant’s way upon this feature of this case, and that is, although she desires to set aside the contract of release, she still retains the consideration, and has never offered to return it. Where-a party attempts to rescind a contract, the rescission must be complete. He cannot affirm it in part and reject it in part. Common honesty would require him seeking to escape the burdens of the contract to return the benefits which he has received. This is not only the rule of common honesty and fairness, but has been recognized by the courts from time immemorial. ” (Barker v. Northern Pacific Ry. Co., 65 Fed. 460; McLean v. Clapp, 141 U, S. 429; Hill v. Northern Pacific Ry. Co., 113 Fed. 914; Valley v. Boston R. Co., 68 Atl. 635; Louisville Ry. Co. v. McElroy, 37 S. W. 844; Norwich v. Girton, 24 N. E. 984.) Even if the contract of settlement had been made between citizens of Nevada within the State of Nevada, it would be a valid contract, and to uphold the release would in no way violate any statute of Nevada or conflict in the slightest degree with the decision of this court in the case of Lawson v. Halifax, 36 Nev. 596. Appellant was at all times a resident of the State of California, and, • at the time the contract of settlement was made, was a resident and citizen of that state. At all times in question, respondent was a citizen and resident of the State of Maine. These facts are conclusively established, not only by record but by the removal proceedings, pursuant to which the state court of Nevada retained jurisdiction of the cause solely by reason of the fact that neither party to the action was a resident or citizen of the State of Nevada. A cause of action for personal injuries is a transitory cause of action, which-follows its owner wherever he goes, and may be sued upon in any state where jurisdiction of the defendant can be secured. (Dennickv. Railroad Co., 103 U. S. 18; 4 Labatt, Master and Servant, sec. 1620; Christensen v. Floriston Pulp and Paper Co., 29 Nev. 552; Mclntirev. Mclntire, 16 D. C. 344.) "Compromise or settlement, when full and complete and fairly made, operates as a merger and bars all right to recover on all claims and causes of action included therein.” (8 Cyc. 516; Oglesby v. Attrill, 105 U. S. 611.) When appellant saw fit to settle his controversy in California, he extinguished his cause of action. If his cause of action was extinguished, then manifestly when he crossed the state line to institute the present suit in the courts of Nevada, he had nothing to bring with him. The settlement which the statute of Nevada says shall not constitute a bar must be construed to mean a contract made and executed within the State.of Nevada. . The law of the place of the contract controls. (International Harvester Co. v. McAdams, 124 N. W. 1042; Pritchard v. Norton, 106 U. S. 124; 9 Cyc. 667.)