Herbert v. Durgis

• Decision Date: 16 June 1936
• Docket Number: No. 50.,50.
• Citation: 276 Mich. 158,267 N.W. 809
• Parties: HERBERT v. DURGIS et al.
• Court: Michigan Supreme Court

276 Mich. 158

267 N.W. 809

HERBERT

v.DURGIS et al.

No. 50.

Supreme Court of Michigan.

June 16, 1936.

Action by Gladys Herbert against Allan Durgis and another.Judgment for plaintiff, and defendants appeal.

Affirmed.

WIEST and TOY, JJ., dissenting.Appeal from Circuit Court, Huron County; Xenophon A. Boomhower, judge.

Argued before the Entire Bench.

Paul Woodworth, of Bad Axe, and Kerr, Lacey & Scroggie, of Detroit, for appellants.

Hugh K. Davidson, David E. Kull, and Walter M. Nelson, all of Detroit, for appellee.

BUTZEL, Justice.

At about 1:30 a. m. on July 16, 1933, Orville McMann, accompanied by Zelma Shanks and plaintiffMrs. Gladys Herbert, while returning from a dance, drove a roadster in a northerly direction towards Forrester, Michigan, on M-29, a gravel road, approximately 16 feet wide, skirting the shore of Lake Huron.About a mile south of Forrester, the road proceeds across a bridge 40 feet long and from 13 to 16 feet wide; the testimony being in conflict as to the exact width.A sign at the northerly approach to the bridge read, ‘Narrow Bridge, one way traffic.’As the roadster approached the bridge, a truck owned by defendantJohn A. Howard, and loaded with fish, was being driven by defendantAllan Durgis in a southerly direction towards the bridge.Durgis was accompanied by Donald Howard, son of defendant Howard.The car and truck collided with tremendous force.The testimony again is in conflict as to whether the collision occurred on the bridge or near its north approach and after plaintiff's car had succeeded in crossing.

The injuries of Orville McMann were fatal; those of plaintiff, very serious.Zelma Shanks was also hurt.Plaintiff was taken to the Tweedie Hospital at Sandusky Mich., where she remained for 10 days.She was then taken to her home, where she remained bedridden for approximately 6 weeks; subsequently she returned to Detroit.There was testimony showing that the clavicle and the upper jaw were fractured; the jaw to such an extent that the doctor was able to extend his finger from inside the mouth into the nasal cavity.It was shown that plaintiff also suffered a fracture of the skull near the eye and many other cuts and serious bruises.It was necessary to insert a steel frame into the mouth until the jaws healed and to wire in some teeth.At the time of the trial, over 18 months after the accident, plaintiff claimed she still was suffering from various pains, nervousness, nausea, and dizzy spells.She complained particularly of a pain in the back of the neck at the base of the skull which made it impossible for her to lie flat in bed and necessitated the use of a pillowed prop to hold up her head while lying down so as to avoid severe pain.She also has a permanent disfigurement of her lip, a drooping appearing of one of the eyes, and a change in her facial expression as a result of the accident.The General Accident Assurance Corporation, the insurer of defendant Howard, sent its adjuster, Mr. Knott, to investigate the accident and adjust the claims.On July 25, 1933, he called at the Tweedie Hospital, and, according to plaintiff, was introduced by Dr. Tweedie as the attorney for the insurance company.It is claimed that plaintiff made statements in the presence of a court stenographer to the effect that she did not know very much about how the accident occurred.Plaintiff categorically denies that she ever made such statements, and attention is called to the fact that she would have had great difficulty in speaking or being understood because of a gag in her mouth that was holding up the broken jaw.

The coroner held an inquest on account of the death of Orville McMann.The record does not contain the testimony taken before the coroner.The only eyewitness of the accident who could have testified was Durgis, as plaintiff, the only other eyewitness, was bedridden at the time.The persons who were at the scene of the collision were McMann, who was killed, Allan Durgis, who drove the fish truck, defendant Howard's son Donald, who testified that he was asleep when the collision occurred, Mrs. Herbert, and Zelma Shanks.The latter could not give any of the details as to what occurred immediately prior to the collision.The coroner's jury held that the death was caused by an accident, but did not place the blame on any one.On August 10, 1933, Knott called at plaintiff's home late in the evening to make a settlement.Plaintiff testified that she believed Knott to be a lawyer, as he had been introduced as such by Dr. Tweedie.Mary Shanks, who was present at the time with her daughter, also testified that Knott introduced himself as the lawyer for the insurance company when he came to plaintiff's home.Plaintiff claims that Knott strongly advised her and her husband not to engage an attorney, and stated that the finding at the coroner's inquest conclusively showed they had no case; that six witnesses had testified at the inquest that the accident happened in the middle of the bridge and that McMann was to blame; that if they brought suit, they would have to bring it at Bad Axe, Mich., and then they would have no chance because the insurance company would drag the case along and that it would be thrown out and forgotten; that the most that could be paid in settlement was $1,270, owing to the fact that there was insufficient insurance to pay more after settling the McMann claim and leaving something to pay Zelma Shanks.Plaintiff further claims that she was in a nervous and sick condition at the time of the settlement.Mr. Herbert demanded at least $1,500 and the payment of the doctor's bill, but finally plaintiff and her husband together signed a release for $1,270, of which plaintiff claims $500 was for herself, $500 for her husband, and $270 to pay the doctor and hospital bills.A draft was drawn for $1,000 payable to plaintiff and her husband and another one of $270 to pay the doctor and hospital bills; the proceeds from the $1,000 draft being subsequently divided equally between plaintiff and her husband.Plaintiff further claims that she was very unhappy over the amount of the settlement, and, after consulting a lawyer, tendered back to the insurance company the sum of $500, plus legal interest asserting that the settlement was secured through fraud, and was not binding.The case was submitted to the jury who rendered a verdict for plaintiff for $15,500.The trial judge conditioned the denial of defendants' motion for a new trial upon plaintiff's filing a remittitur of $5,500, thus bringing the judgment down to $10,000.The remittitur was filed.Defendants have appealed.We shall not discuss the amount and form of tender or any other questions that have not been set forth in appellants' brief in the statement of questions involved.

Appellants claim that the verdict was against the great weight of the evidence.There is ample testimony both to show liability and that fraudulent representations, as to facts then existing, were made to induce the settlement.While some of the alleged representations are insufficient to set aside a settlement agreement on account of fraud, others, such as the representations that there were six witnesses who testified at the inquest that McMann was at fault and that he could get a carload of witnesses from Detroit who would testify to like effect, and that the amount of the insurance was insufficient to pay more than $1,270, were manifestly untrue and undoubtedly tended to induce plaintiff to accept a meagre amount for the very large damages she would be entitled to if defendants were responsible for her injuries.The law favors settlements, but not overreaching through false representations of material existing facts to one who is bedridden and suffering from shock and injuries of a most serious nature and who was deceived by these falsifications.

Error is claimed because the court refused to permit inquiry into the financial worth of defendant Howard at the time of the accident.The purpose of introducing the testimony was to show that there was a duty on plaintiff's part to investigate Howard's collectibility and not to rely solely on Knott's representation of insufficient insurance.Plaintiff's attorneys objected to it on the ground that it was not shown to have been communicated to plaintiff.Pla...