Johnstons' Estate v. United Airlines

• Decision Date: 24 April 1970
• Docket Number: No. 2,Docket No. 6348,2
• Parties: Administrator of the ESTATE OF Eugene S. JOHNSTON, Deceased, Plaintiff-Appellant, v. UNITED AIRLINES, a corporation successor to Capital Airlines, Inc., a corporation, now merged and part of United Airlines, and Liberty Mutual Insurance Companies, a corporation, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 536

178 N.W.2d 536

23 Mich.App. 279

Administrator of the ESTATE OF Eugene S. JOHNSTON, Deceased Plaintiff-Appellant, v. UNITED AIRLINES, a corporation successor to Capital Airlines, Inc., a corporation, now merged and part of United Airlines, and Liberty Mutual Insurance Companies, a corporation Defendants-Appellees.

Docket No. 6348.

Court of Appeals of Michigan, Division No. 2.

April 24, 1970.

Released for Publication July 23, 1970.

Andrew J. Transue, Flint, for plaintiff-appellant.

Gilbert Y. Rubenstein, Hoffman & Rubenstein, Flint, for defendants-appellees.

Before LEVIN, P.J., and T. M. BURNS and DANHOF, JJ.

DANHOF, Judge.

Plaintiff filed a complaint seeking to set aside a redemption agreement executed by plaintiff's deceased and defendant airlines on the basis of fraud. Subsequent to the filing of the initial complaint a motion for summary judgment was filed on behalf of defendants, which was granted, but the trial court allowed the plaintiff to file an amended complaint, which was done on August 12, 1968. On August 29, 1968 another motion for summary judgment was filed and by written opinion on September 20, 1968 the trial judge granted the motion for summary judgment. The order of dismissal was signed and filed on September 25, 1968. Plaintiff appeals the entry of this order.

It is well-settled that in determining the propriety of a motion for summary judgment, for failure of the complaint to state a claim upon which relief can be granted, every well-pleaded allegation in the complaint is assumed to be true by both the trial court and the appellate courts. Bielski v. Wolverine Insurance Company (1967), 379 Mich. 280, 150 N.W.2d 788, Hiers v. Detroit Superintendent of Schools (1965), 376 Mich. 225, 136 N.W.2d 10.

The pleaded facts indicate that on February 1, 1960 plaintiff was injured while in the employment of Capital Airlines, Inc., a company subsequently merged and now a part of United Airlines, at Flint, Michigan. From February 1, 1960 to February 11, 1960 plaintiff was hospitalized at McLaren Hospital, Flint, Michigan under the case of Dr. Donald Brasie, a medical doctor to whom plaintiff was referred by his employer, Capital Airlines, Inc., and whose services were paid for by the employer's workmen's compensation insurance carrier, Liberty Mutual Insurance Company. On March 8, 1960 a notice of dispute of the plaintiff's claim was filed by the defendants with the State of Michigan workmen's compensation department. On or about March 24 plaintiff retained his own attorney, Mr. Robert J. MacDonald, to represent him in the workmen's compensation claim. On or about March 24 plaintiff was examined by his personal physician, Dr. Burt A. Parliament of Flint, Michigan. On April 19, 1960 Dr. Parliament gave a detailed medical report to the plaintiff's attorney, Mr. MacDonald. On June 6, 1960 Dr. Parliament furnished plaintiff's attorney, Mr. MacDonald, with a further medical report of the plaintiff. On June 29, 1960 an agreement to redeem the liability was entered into by and between the plaintiff, the plaintiff's attorney, and attorneys for the defendants, on the required form furnished by the workmen's compensation department. On August 4, 1960 a hearing on the redemption was had and testimony taken before James W. Nolan, hearing referee of the workmen's compensation department. A copy of this transcript on the redemption hearing was attached to and made a part of the plaintiff's complaint.

The agreement to redeem the liability which plaintiff signed on July 29, 1960 stated in part:

'Plaintiff claims that he is still disabled because of the injury sustained on February 1, 1960. Defendants dispute this.

'Plaintiff, rather than litigate this matter, has offered to settle his claim for any and all compensation benefits of every nature for $2000. Defendants agree to pay the sum of $2000 in full settlement of all liability pursuant to the workmen's compensation act of Michigan. It is specifically understood and agreed that this redemption is intended to cover any medical expenses which plaintiff may have incurred or may incur in the future.

'Plaintiff adopts and accepts the medical reports attached hereto.'

A full redemption based upon the above agreement was approved by the workmen's compensation referee on August 4, 1960.

The injury complained of was the result of a fall from an airplane loading stand, when plaintiff allegedly landed on his head and shoulders. He was hospitalized for a short period under the care of the doctor recommended by the defendant, Capital Airlines, Inc. and paid for by the compensation carrier, defendant, Liberty Mutual Insurance Companies. Plaintiff received further medical treatment at a clinic in Washington, D.C. to which he was sent by defendant. On March 8, 1960 the liability of the plaintiff's claim was disputed on the basis of diabetes. In addition to diabetes, plaintiff was the civtim of arthritis and high blood pressure. After the dispute was filed plaintiff retained his own counsel to represent him in his claim, and also was examined by his own personal physician. The testimony taken at the redemption hearing as shown by the transcript, made a part of the plaintiff's complaint, indicates that plaintiff accepted the settlement upon the recommendation of his attorney and physician.

'REFEREE: You feel that if you took this settlement and went back home, why, maybe some of these worries and problems that you have around here would leave, and insofar as the diabetes is concerned, that could level itself off?

'A. That's what my personal physician recommended, as far as the diabetes.

'REFEREE: All right, Robert.

'MR. MacDONALD: This started out as an argument regarding whether this was an idiopathic fall in which he had had a diabetic attack or whether he actually fell. It would be disputed on trial. Our contention is that he had an actual fall and he did not have any attack of diabetes.

'Dr. John Benson who is his personal physician treating him for the diabetes indicates and would so testify that he thinks it was not a fall due to a diabetic attack. On the other hand, Dr. Benson does not feel that his diabetes was aggravated or exacerbated to an extent it would do anything more than a temporary problem.

'Now, I have gone over this with Mr. Johnston in great detail and I have talked to Dr. Benson three times now. Dr. Parliament's report are on file regarding the back injury. This is strictly a compromise. I have gone into it and he is packed to go, and as I understand, you believe that there is available a job working in a motel in your--

'A. Well, that's not definite, Mr. MacDonald.

'MR. MacDONALD: In other words, your father did tell you that he thought that this was available when you arrived?

'A. It might be available when I get there.

'MR. MacDONALD: Yes. I feel this is a good solution to this. The problem in this case really that has been upsetting Mr. Johnston is not so much the injury or things that have occurred as a result of this fall, but the fact that the Air Lines let him go after seven...