Barr v. Gilmour

• Decision Date: 30 September 1924
• Citation: 204 Ky. 582,265 S.W. 6
• Parties: BARR v. GILMOUR.
• Court: Kentucky Court of Appeals

265 S.W. 6

204 Ky. 582

BARR v. GILMOUR.

Court of Appeals of Kentucky.

September 30, 1924

Appeal from Circuit Court, Warren County.

Action by Lucy McGuiar Gilmour against W. E. Barr.Judgment for plaintiff, and defendant appeals.Affirmed.

N. P Sims, Sims & Sims, and Thomas, Thomas & Logan, all of Bowling Green, for appellant.

L. B Finn, of Franklin, for appellee.

SAMPSON C.J.

Appellant Barr, is a dental surgeon, practicing in Bowling Green, and appellee, Mrs. Gilmour, a resident of that city, is the wife of the chief telegraph operator at that place.Some time in August, 1921, Mrs. Gilmour went to the office of Dr. Barr for the purpose of obtaining treatment for her gums, teeth, and mouth.After making an examination, Dr. Barr lanced her gums for abscess.A few days later he again lanced her gums.Soon thereafter she had lockjaw and suffered great agony.She attributed her tetanus to the unskillfulness and negligence of Dr. Barr, and accused him of operating upon her with an unclean instrument or with dirty hands, and threatened to sue him.The husband of the plaintiff called upon Dr. Barr at his office and told him the situation, and demanded that he pay the expenses which the plaintiff had incurred in going to other dentists and surgeons for operations caused, as she insisted, by the negligence and want of skill of Dr. Barr.Mrs. Gilmour averred in her petition and testifies upon the trial that she made her husband her agent for the settlement of her claim against Dr. Barr, and that her husband had full authority to act for her.Dr. Barr asked her husband what expenses had been incurred on account of Mrs. Gilmour's lockjaw, and he was told that the total was about $2,000.According to plaintiff's husband Dr. Barr offered $500 in compromise, and that was rejected.He then offered $750, and said that was all the money that he could raise at that time; that this money belonged to his wife, having been inherited from her father.The doctor was told, however, that this would not begin to pay the bill.It was then agreed, according to Dr. Barr and Mr. Gilmour, that the latter should return to his home and talk the matter over with his wife and see what was the least she would agree to take and later report to the doctor.Mr. Gilmour also says that neither he nor Dr. Barr were to engage a lawyer or consult any one about it.A day or so thereafter he heard that Dr. Barr had gone to Franklin, Ky. to see a physician who had Mrs. Gilmour under treatment in his hospital.When Dr. Barr returned Mr. Gilmour called him up and told him the whole proposition was off because he had violated his agreement concerning consultation with other persons.It was not long thereafter until a friendly third person induced the parties to again take up negotiations looking to a compromise, and when they came together it was agreed, so the plaintiff insists, that Dr. Barr was to pay Mrs. Gilmour and her husband the sum of $900 in full settlement and satisfaction of their claim against him for damages on account of the unsatisfactory dental surgical operation.This agreement was reduced to writing, and reads:

"This contract of release made and entered into this January 28, 1922, by and between N.M. Gilmour and his wife, Lucy Gilmour, parties of the first part, and E. Wallace Barr, party of the second part, witnesseth:

That whereas there has arisen between the parties hereto a controversy as to certain injuries resulting to Lucy Gilmour from dental operations, and whereas the parties hereto desire to avoid any litigation concerning said injury, it is agreed between the parties to this contract that upon receipt of $900 this day cash in hand paid the first parties by the second party, the receipt whereof is hereby acknowledged, the first parties do hereby release E. Wallace Barr from any and all liability for any injury or damage which Lucy Gilmour has sustained by reason of said dental operations, and from any and all liability for any damages which may result to the said Lucy Gilmour in the future on account of said dental operations.N.M. Gilmour, the husband of Lucy Gilmour, joins in this instrument to release E. Wallace Barr from

any and all liability to the said N.M. Gilmour for any damage the said N.M. Gilmour may have sustained, or may in the future sustain, by reason of said dental operations performed upon his wife, Lucy Gilmour.

E. Wallace Barr enters into this contract without admitting any liability upon his part and without admitting that he has been guilty of any neglect or malpractice; and he has entered into this contract of settlement over the advice of his attorneys, Sims & Sims, and in the face of the advice of said attorneys, that he was in nowise liable to the first parties, and that any suit they might bring could be successfully defended.

In witness whereof the parties hereto have signed their names this the day and date first above written."

But the writing was never signed by any one of the parties save Mrs. Gilmour.It was prepared at the instance of Dr. Barr and by his attorney, Porter Sims, of Bowling Green.The parties met at Mr. Sims' office and told him their business.Thereupon he called his stenographer and dictated to her the writing; and, after some controversy as to whether the clause stating that "W. Wallace Barr enters into this contract without admitting any liability upon his part, and without admitting that he has been guilty of any neglect or malpractice, etc.," should be placed in the writing, it was explained by the lawyer to Mr. Gilmour, and was finally agreed upon for the benefit of Dr. Barr who, it was insisted, desired to ward off the bad effects of such a settlement by incorporating in the agreement or settlement the statement that he did not admit his liability or that he was guilty of malpractice.After going over the matter with the parties, Mr. Sims made some corrections in the dictated agreement, and sent his stenographer to put it in type.Thereupon both Dr. Barr and Mr. Gilmour left the office, it being understood that the lawyer would carry the writing down to Mr. Gilmour at the depot before 6 o'clock so that he could carry it with him to Franklin that night and obtain the signature of his wife, who was there in a hospital.About 6 o'clock the attorney appeared at the office of Gilmour in the depot and read to him the writing, and they had some slight conversation, and it was delivered to Gilmour with the understanding he was to take it to Franklin and obtain the signature of his wife and to bring it back on Monday.In telling about how the compromise came about Mr. Gilmour testified:

"Well, anyway, on Friday, the following morning, Dr. Barr called me and asked me to come to his office, and when I got there he said that Dr. Guthrie had talked to him over the long distance phone, 'and he said that you were willing to settle for $900,' and I said, 'Yes, we will settle for $900,' and then Dr. Barr asked me if we had any objection to his getting some lawyer to draw up a release for future reference to show that there had been a settlement effected, and I said, 'Yes, that is all right with us,' and he says, 'How about Porter Sims?' and I said, 'All right,' and he followed me to the door and said, 'There will be no more of this, will there?' and I says, 'No,' and on Friday night I went to Franklin and came back to Bowling Green Saturday morning on the 9 o'clock train and went to work, and Dr. Barr called me on the phone and asked me to meet him at Porter Sims' office at 2 o'clock and I went, and Dr. Barr introduced me to Mr. Sims and asked me to have a seat, and Mr. Sims says, 'Mr. Gilmour, Dr. Barr tells me that a little controversy has arose between you all about an operation, and you all have agreed to compromise for $900, is this correct?' and I says, 'Yes,' and he called his stenographer and dictated it to her, and I believe it started out this way, 'This contract of release made and entered into this January 28,

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