General Accident, Fire & Life Assur. Co., Ltd., of Scotland v. Tibbs

Decision Date02 June 1936
Docket Number15185.
Citation2 N.E.2d 229,102 Ind.App. 262
PartiesGENERAL ACCIDENT, FIRE & LIFE ASSUR. CO., LIMITED, OF SCOTLAND, v. TIBBS.
CourtIndiana Appellate Court

Appeal from Circuit Court, La Porte County; Alfred J. Link, Judge.

Action by Leota Tibbs against the General Accident, Fire & Life Assurance Company, Limited, of Scotland. Judgment for plaintiff, and defendant appeals.

Reversed with instructions.

Privilege granted by statute declaring communications between physician and patient privileged does not extend to third persons who are present and overhear a conversation unless such third person was necessary for purpose of transmitting the information to the physician. Burns' Ann.St. § 2-1714 subd. 4.

Osborn & Osborn, of La Porte, J. Allen Lampman, of Three Rivers Mich., and John A. Bloomingston, of Chicago, Ill., for appellant.

Moore, Long & Johnson, of Gary, and Darrow, Rowley & Shields, of La Porte, for appellee.

WIECKING, Judge.

On September, 6, 1931, the appellee, plaintiff below, was injured in an automobile accident. Appellee was riding in a car driven by its owner, Robert Taylor, which collided with a truck driven by Robert Robinson, an employee of Midland Press. At the time of the collision Robert Robinson was using the truck without the knowledge or consent of the owner and was returning from a trip made on personal business. The appellee on September 10, 1931, filed an action for damages against said Robert Robinson and Midland Press as a result of the collision. The appellant was the insurance carrier for Midland Press and covered the truck involved against liability for personal injuries and property damage upon certain conditions. On October 15, 1931, the appellee accompanied by her father, mother, sister, and Robert Taylor went to Chicago, to the office of the appellant, and while there executed an instrument purporting to release her claim against Midland Press from damages for her injury. At that time the appellant paid to appellee the sum of $442.50 in compromise of her claim, without admitting any liability. Some time later in March of 1933, the appellee brought this action for damages against the appellant for fraud practiced on her by appellant's agents in inducing her to sign a release of her claim against Midland Press.

The complaint was in one paragraph to which the appellant filed an answer in general denial. The cause was tried by a jury resulting in a verdict for the appellee and against the appellant in the sum of $2,529. Judgment was rendered upon the verdict and this appeal is prosecuted from that judgment. The errors assigned here are: (1) That the court erred in overruling the appellant's motion for judgment on the interrogatories, and (2) the court erred in overruling the appellant's motion for a new trial.

The grounds of the motion for new trial presented by appellant's brief are: (a) That the verdict of the jury is not sustained by sufficient evidence; (b) that the verdict of the jury is contrary to law; (c) that the damages assessed by the jury are excessive; (d) the court erred in refusing to instruct the jury to return a verdict for the defendant at the close of the plaintiff's evidence; (e) the court erred in refusing to instruct the jury to return a verdict for the defendant at the close of all the evidence; (f) the court erred in admitting certain exhibits in evidence; (g) the court erred in excluding certain evidence of the witness Bessie Miller, a nurse, on the ground that such evidence was privileged; (h) the court erred in refusing to give certain instructions tendered by the defendant; and (i) the court erred in giving certain instructions of its own motion.

The principal question raised by the appellant is as to the legal effect of the release signed by the appellee. The jury by its answers to interrogatories specifically found that she was induced to sign the release by fraud practiced upon her by appellant's agents. However, for the appellee to recover in this action, she must necessarily show not only that she was fraudulently induced to sign the statement, but that in so doing she was damaged. Appellee's position is that in executing the release to Midland Press she thereby also released Robert Robinson and was prevented from recovering against him. She must therefore also show that she had a good cause of action against said Robinson. The jury by its answers to the interrogatories in this case specifically found that at the time of the collision the said Robinson was not performing any act or duty as an employee of Midland Press, but was operating the truck in question for his own personal purposes and not as an employee of Midland Press. This narrows our inquiry on the release in question as to the legal effect of the release when there was no legal liability on the part of the one to whom it was executed and whether or not such release acted as a release of said Robinson.

The release executed by the appellee, omitting the verification and signature of witnesses, was as follows:

" Know all Men by these Presents, That I, Leota Tibbs in consideration of the sum of four hundred forty-two and 50/100 ($442.50) dollars plus medical expense not to exceed $30.00 to me in hand paid by Midland Press receipt whereof is hereby acknowledged, have released, acquitted and discharged and by these presents do release, acquit and forever discharge said Midland Press of and from any and all actions, causes of action, damages or demands of whatever name or nature in any manner arisen, arising or to grow out of any and all accidents or matters and especially an accident to myself claimed by the undersigned to have been sustained on or about the 6th day of September, 1931, substantially as follows: wherein I was injured when, on United States Highway number 12, five miles east of Michigan City, Indiana, the automobile in which I was riding was in collision with automobile of Midland Press.
" To secure this settlement and the payment of said sum I hereby declare that I am twenty-one years of age, and that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of injuries, disabilities and damages sustained by myself and that no representations or statements about them, made by the surgeons or agents of said Midland Press have influenced me in making, or induced me to make this settlement.
" It is further acknowledged that there is no agreement or promise on the part of said Midland Press to do or omit to do any act or thing not herein mentioned, and that the above consideration is in full settlement of any and all damages to the undersigned arising from or out of any and all matters aforementioned.
" The said Midland Press in paying the said sum of money does so in compromise of the said claim or claims, action or actions, cause of action or causes of action, damages and demand or demands above released, not admitting any liability on account of the same.
" In Witness Whereof, I have hereunto set my hand and seal at Chicago, Illinois, this 15th day of October, A. D. 1931.
" [Signed] Leota Tibbs.(L.S.)"

The appellee relies upon the familiar rule of law that payment by and...

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