(after stating the facts). I. Appellant says that the evidence is not sufficient to show that the plaintiff was either deceived or misled, or that any fraud was practiced on him in obtaining the settlement. In discussing this, it must be taken that the jury has accepted the testimony of Flambright and Phelps and rejected that of Outten and Jones; and the sufficiency of the evidence must be tested solely upon the accredited testimony.
In Houston & T. C. Ry. Co. v. Brown, 69 S. W. (Tex.) 651, an employee of the railroad company was injured, and was taken to a hospital, where 'he was treated by Dr. Stewart, the surgeon of the railroad company. The doctor represented to him that the bones of his arm had knitted and united together, that his arm was well, and that as soon as the swelling had passed away his arm would be as good as ever. Brown, the employee, had stated that he was ready to settle with the railroad company whenever the bones of his arm had knit together, and his arm was cured. The court said:
“The facts in evidence warrant the conclusion that Stewart made the representations and statements to the appellee for the purpose of inducing him to execute the release to appellant, and that the appellee believed the statements were true, and relied upon the same, and was thereby induced to make the settlement and sign the release; that the representations and statements so made by Stewart were false, in that the bones at the time' of the trial were not united, and that his arm was practically destroyed in its usefulness. The court correctly submitted this issue to the jury.
“We cannot agree with the contention of appellant that it may escape liability on the ground that the representations and statements made by Stewart was [were] a mere expression of opinion. It was more than an opinion — it was the statement of a fact. The effect of his statement was that the appellee was a sound man, and that the bones of his arm had knitted together, and that it would be all right. It is true this statement may have been predicated upon his opinion as a medical expert, but the opinion is based upon facts of which .he possessed knowledge. The fact that the statement made by Stewart was not intentionally false does not affect the right of the appellee to have the release set aside if he was misled by the statement, and executed the release believing the statement was true. In such a case innocent misrepresentations may as well be the basis of relief as where such statements are intentionally false.”
This case was quoted from and approved by the Federal Court of Appeals of the 9th Circuit in Great Northern Ry. Co. v. Fowler, 136 Fed. 118. In that case a brakeman on a railroad was injured, and was examined by the company’s physician, who advised him, after a cursory examination, that his injuries were slight, and that he would be ready for work in two weeks. He consulted no other physician as to the extent of his probable injuries. The decisions touching this exact point are carefully considered and discriminated, and these conclusions reached: “He accepted» the statement and opinion of the appellant’s surgeon, and, on the basis of it, received $195 and signed the discharge. We entertain no doubt that such a release, executed under a mutual mistake of fact .so induced by the appellant, should be set aside. It is true that where there is no misrepresentation or fraud on the part of the releasee, a releasor cannot subsequently avoid his release on the ground that his injuries were more serious than he thought them to be, even though his opinion at the time of making the settlement may have been based upon that of a physician employed by the releasee to examine and report on the extent of his injuries. * * * But it is equally true that a mutual mistake of fact or an innocent misrepresentation of the facts of the releasor’s injury, made by the releasee’s physician, may be effective to avoid a release induced thereby.”
The case of Texas & P. Ry. Co. v. Jowers, 110 S. W. (Tex.) 946, is essentially similar to the case at bar. An employee of the railroad company was injured and sent to the same hospital to which Hambright went, and was under the care of Dr. Vaster-ling, who was also one of the physicians who attended Hambright while he was at the hospital. The course of dealing between the hospital and the patient was shown to be the same in that case as it was in this. The plaintiff’s evidence was that he had settled upon the statement of Dr. Vasterling that his injuries were slight, and it was proved that such was not the case. The court said:
“The fifth and sixth assignments are submitted 'together in the appellant’s brief, and assail the court’s charge in submitting the issue of bad faith or fraud upon the part of Dr. Vasterling', appellant’s physician in charge of the hospital, and Hoeppner, appellant’s claim agent stationed at that place, in advising the appellee concerning the extent of his injuries at the time the release was executed. The propositions (two in number) submitted under those assignments .indicate that the particular objection was to the action of the court in submitting any such issue at all under the circumstances. The first proposition asserts that fraud cannot be predicated upon a representation which is a mere statement of opinion, and not the statement of the fact. The appellants lose sight evidently of the fact that fraud may be based upon the giving of an opinion as well as the statement of any other fact. In this particular .suit the contention is relied upon that the physician fraudulently gave an incorrect opinion, and thereby misled the appellee into agreeing to a settlement. (Citing ■authorities). The second proposition assumes as a matter of fact that the physician acted in good faith. That, we think, was an issue for the jury.” See also, on the general principle involved, Great Northern Ry. Co. v. Kasischke, 104 Fed. 440, in the Circuit Court of Appeals of the 8th Circuit.
The appellee’s evidence fully meets the requirements of the authorities to avoid a release' induced by fraud.
II. A special exception was taken, to submitting the question of Dr. Outten being mistaken as to the extent of plaintiff’s injuries to the jury in the third instruction. As shown by the above authorities, if the settlement was based upon a mutual mistake of fact, predicated upon the doctor’s medical opinion as to the present condition of the employee, which opinion induced the settlement, the instruction was correct. If there was room to find that there was such mistake of fact as above indicated, it would be equally effective to set aside the release, and the appellant cannot be injured by having the most charitable construction given to the statements of Dr. Outten.
III. It is said that Hambright came direct from his own physicians, and ought to have known, and must have known, something of his condition outside of anything Dr. Outten said to him, and that he could not have been misled in this regard. Hambright testified that he had been under Dr. Outten’s care from September, and that he did not know his own conditon, but relied upon Dr. Outten, and asked him to tell him his true condition. In the third instruction, the court predicated plaintiff’s case on a reliance upon Dr. Outten’s statements, and the verdict means that the jury believed he did rely upon them. Dr. Outten says that his examinations were made in behalf of the employees as well as the railroad; that his employment came from the railroad company, and his compensation came from a hospital fund derived from assessments of the employees. Certainly, Ham-bright had a right to rely upon his good faith, and it does not lie in the mouth of the railway company to say that an employee can not safely rely upon statements of its chief surgeon who occupies this delicate position between it and its employees.
IV. It is next argued that the court erred in entertaining this 'suit without requiring a tender of the amount received in the settlement of December 28. This point was reserved by exception to the fourth instruction. This contention, however, was' settled against the appellant in St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105. In that case, as in this, there was a controversy over a release, one. 'side claiming that it was for a singk purpose, and the other side claiming that it was a full release The court said: “So, if the jury fcund that she was paid the sum of money as compensation only for the inconvenience and delay caused by the collision, or that she was induced to sign the receipt by false representations, which she relied on, as to its contents, she would not be bound to return the sum paid before suing to recover the damages sustained.” If plaintiff’s evidence was true, then the tender was not necessary; and the defendant did not ask for the converse of the proposition to be submitted.
V. Objection is made 'to the third instruction; but, as seen in the previous discussion, it is in accord with the authorities.
VI. Error is assigned for the refusal to give each of the ten instructions asked on the part of the defendant. The first and second of these charged the jury that if the writings introduced in evidence were signed by the plaintiff, he would be bound by the terms and conditions thereof and not permitted by oral testimony to change, vary, add to or contradict them. The rule of evidence forbidding the addition, alteration or contradiction of a written instrument by parol testimony of antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing. Jordan v. Fenno, 13 Ark. 593; Gauss v. Doyle, 46 Ark. 122; Colonial & U. S. Mortg. Co. v. Jeter, 71 Ark. 185.
The exception to the refusal of the court to give the ten instructions was a general one, and where such is the case, if any of the instructions are bad, such exception does not preserve for review the other instructions. Young v. Stevenson, 75 Ark. 181.
There was no error in refusing to give any of these instructions. As they are not in reviewable shape, the questions presented by them cannot properly be discussed.
Judgment affirmed.
Mr. Justice McCurroch concurs in judgment, but not in all of the opinion.