Almquist v. Wilcox

• Citation: 131 N.W. 796,115 Minn. 37
• Decision Date: 16 June 1911
• Docket Number: 17,056 - (148)
• Parties: HENRY ALMQUIST v. ARCHA E. WILCOX
• Court: Supreme Court of Minnesota (US)

131 N.W. 796

115 Minn. 37

HENRY ALMQUIST v. ARCHA E. WILCOX

Nos. 17,056 - (148)

Supreme Court of Minnesota

June 16, 1911

Action in the district court for Hennepin county by the administrator of the estate of Joel Bengston, deceased, to recover $5,000 for negligence in trepanning the skull of his intestate in failing to remove the gauze in dressing the wound, by reason of which a tumor was formed on the brain, as a result whereof intestate died. The answer, for a defense alleged a settlement by plaintiff with James L. Robinson, the employer whose negligence caused the injury to decedent. From an order, Holt, J., sustaining plaintiff's demurrer to that defense, defendant appealed. Reversed.

SYLLABUS

Death by wrongful act -- settlement.

The right of action given by section 4503, R.L. 1905, for the wrongful death of a person, creates one single, indivisible cause of action; and a recovery against, or settlement with one of the wrongdoers, is a bar to a subsequent action against others whose wrongful conduct may have contributed to cause the death.

Morton Barrows and Arthur A. Stewart, for appellant.

Olof L. Bruce and W. M. Babcock, for respondent.

OPINION

BROWN, J.

Plaintiff's intestate was in the employ of one Robinson and engaged in tearing down an old livery barn in the city of Minneapolis. He received an injury while so engaged, solely by reason of the negligence of his employer, from which he subsequently died. Plaintiff was duly appointed administrator of his estate, and as such duly made claim against the employer for his wrongful death. The validity of the claim was recognized, and a settlement was effected by which plaintiff was paid the sum of $350 in full for all damages sustained. The settlement was reported to the probate court and by that tribunal approved. A formal written acknowledgment of the settlement, and of the receipt of the money, was executed by plaintiff, and therein said employer, Robinson, was released from any further liability. The settlement and payment of the money was effected March 24th, 1909. Thereafter, on June 30, 1910, plaintiff brought the present action against defendant, the physician who attended decedent after his injury, charging carelessness, unskilfulness, and negligence in the treatment rendered, in consequence of which decedent failed to recover from his injury, and, further, that if the treatment had been carefully and skilfully rendered decedent would have recovered. Defendant interposed as a defense to the action the settlement with Robinson, the employer whose negligence caused the injury. Plaintiff demurred to the defense, and defendant appealed from an order sustaining it.

We are of opinion, and so hold, that the settlement with Robinson completely extinguished plaintiff's cause of action, and that the demurrer to the answer should have been overruled. The action is statutory (section 4503, R.L 1905), and in no respect founded upon, governed, or controlled by the rules of the common law applicable to personal torts. Undoubtedly decedent, had he recovered from his injuries, could have maintained an action against one or both of the wrongdoers; but...