Doyle v. Teasdale

• Decision Date: 03 March 1953
• Citation: 57 N.W.2d 381,263 Wis. 328
• Parties: DOYLE et al. v. TEASDALE et al.
• Court: Wisconsin Supreme Court

Page 381

57 N.W.2d 381

263 Wis. 328

DOYLE et al. v. TEASDALE et al.

Supreme Court of Wisconsin.

March 3, 1953.

This is an action by the plaintiffs Bernard E. Doyle and Travelers Insurance Company (the workmen's insurance carrier for Doyle's employer) against the defendants Boyd Earl Teasdale and Farmers Mutual Automobile Insurance Company (the liability insurance carrier on Teasdale's automobile, hereinafter referred to as 'Farmers Mutual') to set aside a release executed by Doyle in favor of the defendants dated March 12, 1948, and to recover the damages sustained by Doyle in an accident alleged to have been proximately caused by the negligence of Teasdale, other than those known to the parties at the time of such release, but including the workmen's compensation and medical expenses paid by the plaintiff Travelers Insurance Company. By said release Doyle released defendants from all claims on account of injuries to person and damage to property resulting from an automobile collision which occurred on October 27, 1947, between Doyle's and Teasdale's automobiles.

At the time said collision occurred on October 27, 1947, Doyle, who resided at Shullsburg, Wisconsin, was employed by the Retail Credit Company as an investigator in certain fields of insurance and in credit investigations, and was driving his own automobile in the business of his employer in La Fayette county. On the day following the accident he consulted a physician of his own choice, Dr. Van Ells, of Shullsburg, who made the following findings as to injuries: (1) shock; (2) sprained ankle; (3) bruised right knee; and (4) sprained back. The plaintiff was advised to rest and given a sacroiliac belt to wear which he wore for four to six weeks and was able to return to work on November 11th or 12th 1947, thus losing only two weeks away from work.

Doyle employed Attorney W. J. Boyle, of Darlington, sometime in December, 1947, to handle Doyle's claim for damages arising out of the collision, and Attorney Boyle had several conferences with one J. C. Gamroth, an attorney-adjuster for Farmers Mutual, Doyle not being present at any of the negotiations which led to the settlement. At first Boyle and Gamroth were apart as to a mutually satisfactory figure for settlement, but finally Gamroth increased the offer in behalf of Farmers Mutual to $1,400, which was submitted by Boyle to Doyle, and Doyle authorized Boyle to accept the offer, which figure covered damages to Doyle's automobile, two weeks' loss of earnings, and medical expenses, in addition to Doyle's personal injuries. Before concluding the settlement, Boyle, who had in his possession the first written report of Dr. Van Ells, recommended that Doyle again see Dr. Van Ells and get a further written report, as Boyle wanted to be sure, as far as medically possible, that Doyle's injuries were as described in the first report. Doyle thereupon submitted himself for examination to Dr. Van Ells on February 26, 1948. According to Dr. Van Ells' testimony, Doyle told the doctor that his back was better but it still hurt him. Dr. Van Ells then made out a further written report, dated February 26, 1948, in which he certified that he had treated Doyle for the following injuries: (1) sprain of right ankle; (2) shock; (3) bruised right knee; and (4) sprained back; and added this comment: 'The shock and sprained back are not completely subsided as of examination this date'. Doyle at that time asked Dr. Van Ells if it would be satisfactory to make a settlement and his response was as follows:

'It would be satisfactory. And I also stated at that time that in case something should turn up it always can be re-opened.'

At that time Dr. Van Ells had no specific knowledge as to any injuries to Doyle's coccyx and did not believe that there might be a possibility of any subsequent development.

The second written report of Dr. Van Ells, dated February 26, 1948, was submitted by Doyle to Boyle, who in turn also submitted it to Gamroth, as Farmers Mutual wanted a written medical report in order to substantiate the settlement figure. Farmers Mutual had no medical report other than this and an earlier one of Dr. Van Ells upon which it relied in making settlement.

After the $1,400 settlement figure had been agreed upon, Farmers Mutual forwarded a written release to Boyle to be signed by Doyle, and such release was duly executed by Doyle, after reading the same, and was witnessed by Boyle and the latter's secretary. Such release stated that Doyle forever released and discharged Teasdale and Farmers Mutual 'from all claims * * * in consequence of or on account of all injuries to person, including those known and unknown, developed or undeveloped, and unforseen or unexpected developments and consequences of known injuries and damage to property resulting to me * * *' from the collision of October 27, 1947.

During the latter part of March, 1948, Doyle began to experience pain in his back lower down than the pain previously experienced, and on April 5, 1948, he went to the Monroe Clinic for a physical checkup. X-rays were taken of the coccyx region, and Dr. Bear of that clinic made a physical examination of the coccyx, examining it with his fingers, and diagnosed the trouble as coccyalgia, or painful coccyx, and rendered a written report to such effect. Doyle then returned to Dr. Van Ells, who operated on Doyle on May 11, 1948, and removed and nucleated the coccyx.

Thereafter the within action was instituted to set aside the release on the ground that it was entered into as the result of mutual mistake, and to recover further damages. The trial court without a jury tried the issue as to the setting aside of the release, and rendered a memorandum decision in which he held that the release had been executed as a result of mutual mistake and that the painful condition of Doyle's coccyx was due to the accident of October 27, 1947. Thereafter formal findings of fact, and conclusions of law were signed, and an interlocutory judgment was entered, dated April 9, 1952, setting aside the release and directing that the negligence issues, and the issue as to amount of damages to which the plaintiffs might be entitled, be tried in the usual manner before a jury. Defendants have appealed from such interlocutory judgment.

Aberg, Bell, Blake & Conrad, Madison, for appellants.

Stroud, Stebbins, Wingert & Stroud, Madison, for respondents.

CURRIE, Justice.

This appeal presents the following issues:

(1) Is the release voidable on the ground of having been executed as a result of mutual mistake;

(2) Is Doyle barred from seeking to set aside the release by reason of the fact that he failed to tender back the $1,400 received by him as consideration for the release; and

(3) If the release is not voidable on the ground of mutual mistake, is such release binding upon the Travelers Insurance Company (the workmen's compensation insurance carrier of the employer of plaintiff Doyle)?

It is the contention of plaintiffs that both plaintiff Doyle and the defendant Farmers Mutual in entering into the compromise settlement which resulted in the execution of the release dated March 12, 1948, relied upon Dr. Van Ells' written report of Doyle's injuries, dated February 26, 1948, as to the nature of such injuries; and, therefore, the release was executed under a mutual mistake of fact in that both parties were then ignorant of the injury to Doyle's coccyx. In passing on this contention, it is necessary to determine whether the injury to the coccyx was embraced within the diagnosis of 'sprained back' contained in such written report of Dr. Van Ells.

Gould's Medical Dictionary (5th ed.), defines a 'sprain' to be 'a wrenching of a joint producing a straining or laceration of the ligaments'. Maloy's Medical Dictionary for Lawyers (2d ed.), defines 'sprain' as 'an overstrain or wrenching of the ligaments of a joint'. Attorneys' Textbook of Medicine by Gray (3d ed.), lists coccygeal sprain under 'sprain--back'. There is competent medical testimony in the record that the injury to Doyle's coccyx produced a condition known as coccyalgia caused by the pulling of the ligaments connecting the coccyx with the sacrum. If there were only the pulling or tearing of the ligaments with no fracture of the bone itself, the general term 'sprained back', contained in Dr. Van Ells' report, would be broad enough to embrace such condition and would tend to negative any mutual mistake in the execution of the release.

However, plaintiffs stress the testimony of Dr. Van Ells, that when he made his examination and report of February 26, 1948, he did not then have any knowledge of any injury to Doyle's coccyx. Dr. Van Ells' testimony on this point is as follows:

'Q. Now at the time you made this report which has been marked Exhibit 'A' and in which you refer to a sprained back, will you state whether or not at that time you had any knowledge of any injury to Mr. Doyle's coccyx? A. I did not.

'Q. In the report then, marked Exhibit 'A', and in such other reports as you may have made with reference to the injuries of Mr. Doyle, did your explanation of sprained back in any way indicate that knowledge by you of any injury to Mr. Doyle's coccyx? A. No.

'Q. When did you first learn that Mr. Doyle had suffered any injury to his coccyx? A. Oh, it was approximately * * * one to three weeks before the time of operation; it was some time between February 26th and the time of the operation.'

Dr. Van Ells further testified that the point in Doyle's back where he was experiencing pain up to the time of such report was in the region of the lumbar-sacro junction which was about 3 1/2"' above the coccyx.

On the other hand, Gamroth, the attorney-adjuster who represented the defendant Farmers Mutual in the settlement negotiation, testified 'My basis on which I arrived at this settlement was here the doctor indicates a sprained back. As far as the bruises and knee I wasn't so much concerned...