Forsythe v. Rexroat

• Citation: 234 Ky. 173
• Court: United States State Supreme Court — District of Kentucky
• Decision Date: 27 May 1930
• Parties: Forsythe v. Rexroat.

234 Ky. 173

Forsythe v. Rexroat.

Court of Appeals of Kentucky.

Decided November 12, 1929.

As Modified, on Denial of Rehearing, May 27, 1930.

1. Contracts. — Forbearance to sue is a sufficient consideration to support promise, but suit forborne must not be wholly and certainly groundless or unsustainable at law or in equity.

2. Contracts. — It is not essential that validity or basis of claim giving rise to promise in consideration of forbearance to sue should be certain and sure, but if it be doubtful, and asserted in good faith, that is sufficient, but good faith or honest belief in its soundness alone is not enough.

3. Compromise and Settlement. — In testing validity of compromise agreement, it is not adequacy of consideration which controls, but it is sufficient if there is something of detriment to one party or benefit to another, however slight, since legal sufficiency does not depend on comparative economic value.

4. Compromise and Settlement. — Real consideration which each party receives under compromise agreement, and that which gives it validity, is settlement of dispute or controversy, and not settlement of claim.

5. Compromise and Settlement. — Mere threat or fear of lawsuit on claim without foundation is no consideration for agreement of compromise, or promise to satisfy groundless claim.

6. Parent and Child. — Where child is acting as agent of parent, either by express designation or by implication, or where child is conduit through which parent's carelessness operates, parent is liable for child's negligence.

7. Compromise and Settlement. — In action on contract executed by parent in consideration of plaintiff's forbearance to sue parent for minor child's negligence in running into plaintiff with bicycle, resulting in severe and permanent injuries, petition alleging that, in consideration of plaintiff not suing defendant for damages sustained, he agreed to pay all expenses incurred by plaintiff in proper treatment of her injuries, and that pursuant to such agreement, and at defendant's special request, she incurred hospital and other necessary expenses customary, reasonable, and just, and that she had complied with all provisions of contract, and that defendant had only refunded to her part of expenses incurred, whereby defendant was indebted to her in specified sum, held sufficient to state cause of action.

8. Compromise and Settlement. — Whether claim underlying promise to pay in consideration of forebearance to sue is a baseless or doubtful one must be measured by its own peculiar facts.

9. Frauds, Statutes of. — Claim under contract wherein parent promised to pay reasonable and necessary expenses in caring for personal injuries resulting when minor child, while riding bicycle, struck pedestrian, claim being asserted against parent on account of his own liability, and not for default or liability of child, held not within statute of frauds, as oral promise to pay for the debt or default of another.

10. Compromise and Settlement. — Where promise to pay reasonable and necessary expenses in caring for injuries, resulting when minor child, while riding bicycle, struck pedestrian, was deliberately and intelligently entered into by parent, promisor, if contract is proved, should not be permitted to escape liability.

11. Compromise and Settlement. — It is court's duty to encourage parties in compromising and adjusting conflicting claims, and nature and extent of rights of each party should not be nicely scrutinized, and so far as it can be done legally and properly courts should support such agreements having for their object an amicable settlement of doubtful rights, since trials are always burdensome, and courts always look favorably on settlements of cases out of court.

12. Contracts. — Where father directed third person injured when struck by son's bicycle to incur medical expenses in treating injuries sustained, father's promise to pay therefor, on third person's acceptance of promise by incurring expenses, became executed contract on which father would be liable, since if one incurs legal liability at request of another, such liability is sufficient consideration to support promise of person at whose request it is incurred.

13. Judgment. — Defendant was not entitled to judgment notwithstanding verdict for plaintiff's failure to traverse allegation of answer affirmatively pleading want of consideration for promise to pay in consideration of forbearance to sue, where case was tried and submitted on same issue raised by petition and its traverse in answer, since one denial ought to be sufficient.

Appeal from Bullitt Circuit Court.

A.E. FUNK, JR., for appellant.

JAMES & JAMES for appellee.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Reversing.

The petition of the appellant, Mrs. Belle Forsythe, states that in May 1927, while she was walking on a sidewalk in the town of Lebanon Junction, the appellee's son, under 14 years of age, with gross negligence ran into her with a bicycle he was then riding, and severely and permanently injured her. On the same day, in consideration of the plaintiff not suing the defendant for damages thus sustained, he "entered into an agreement that he (the defendant) would pay all expenses incurred by plaintiff in the proper treatment of said injuries." Pursuant to that agreement, and at defendant's special request, as she averred, she employed doctors suggested by him, and incurred hospital and other expenses which were necessary, customary, reasonable, and just, in securing treatment for her injuries. Such expenses aggregated $705, which she had paid, of which sum the defendant had refunded her $135. It was further alleged that by reason of the agreement plaintiff refrained from filing any suit for damages against the defendant for those injuries, that more than one year had elapsed since they were sustained, that she had complied with all the provisions of the contract, and that by reason thereof the defendant was indebted to her in the sum of $570, for which sum she sued.

It appears the court first overruled the demurrer to the petition, and a trial was had, resulting in a verdict for the plaintiff. But a motion for a new trial was sustained, and thereafter the former order was revoked, the demurrer sustained. The plaintiff declined to plead further, and her petition was dismissed, and this appeal granted.

It is well-known law that forbearance to sue is a sufficient consideration to support a promise. But, as is equally well established the suit forborne must not be wholly and certainly groundless or unsustainable at law or in equity. Cline & Co. v. Templeton, 78 Ky. 550. This for the reason, as expressed in Sellers v. Jones, 164 Ky. 458, 175 S.W. 1002, that the promotion of such suit would be either fraudulent or wanting in good faith. It is not essential, however, that the validity or basis of the claim giving rise to such promise should be certain and sure. If it be doubtful, and asserted in good faith, that is sufficient. Good faith or an honest belief in its soundness alone is not enough. Hardin's Adm'r v. Hardin, 201 Ky. 310, 256 S.W. 417, 419, 38 A.L.R. 756.

In interpreting this generic classification of the character of a claim which may become the consideration for a compromise, and on which the suit is forborne, it is pointed out in the Hardin case that "this court seems to have gone somewhat farther than any other by holding in several cases that to be a doubtful claim it must be one about which well-informed lawyers and judges may easily differ, and about which the parties themselves do differ." Reference is made in that opinion to Western & Southern Life Insurance Company v. Quinn, 130 Ky. 397, 113 S.W. 456, in which it was held that the compromise claim must be one about which reasonable men at the time may have entertained substantial doubt. Such rule was reiterated in Berry v. Berry, 183 Ky. 481, 209 S.W. 855, but with the additional declaration that it is immaterial that the parties settled the controversy other than the law would have done or that merit or the right ultimately proves to have been on the other side. Gray v. U.S. Savings & Loan Company, 116 Ky. 967, 77 S.W. 200, 25 Ky. Law Rep. 1120; 16 C.J. 346. It is not the adequacy of the consideration which controls in testing the validity of the compromise agreement, for legal sufficiency does not depend on comparative economic value. It is sufficient if there is something of detriment to one party or benefit to the other, however slight. Newton v. Carson, 80 Ky. 309; Posey v. Lambert-Grisham Hdw. Co., 197 Ky. 373, 247 S.W. 30; Dexter v. Duncan, 205 Ky. 344, 265 S.W. 832. The real consideration which each party receives under a compromise agreement, and that which gives it validity is the settlement of the dispute or controversy, and not the...