Joosten v. Robinson

• Decision Date: 05 January 1960
• Citation: 9 Wis.2d 1,100 N.W.2d 327
• Parties: Marie JOOSTEN, Appellant, v. Terry ROBINSON, Respondent.
• Court: Wisconsin Supreme Court

Page 327

100 N.W.2d 327

9 Wis.2d 1

Marie JOOSTEN, Appellant, v. Terry ROBINSON, Respondent.

Supreme Court of Wisconsin.

Jan. 5, 1960.

Godfrey, Godfrey & Neshek, Elkhorn, for appellant.

Kenney, Korf & Pfeil, Elkhorn, for respondent.

BROADFOOT, Justice.

By her complaint and in the affidavits in opposition to the motion for summary judgment the plaintiff asserts that the accident happened at Lake Geneva in Walworth county, Wisconsin; plaintiff sustained a fractured skull and was rendered unconscious; she was taken by ambulance to Lakeland hospital at Elkhorn, where she was attended by a Lake Geneva Physician, who is now deceased; he was not their family physician but was summoned by someone at the time of the accident; the physician made a written report on June 4, 1952, indicating that plaintiff's total disability would last for one month, followed by partial disability for two weeks, ending July 15, 1952; this report was erroneous in that plaintiff suffered headaches thereafter and in February, 1957, had a convulsion; she sought further medical treatment and subsequently had brain surgery which showed that there had been brain damage as a result of the accident; the doctor who performed the operation advised her to see an attorney and the action was started soon thereafter; the report being erroneous, the settlement was based upon a mutual mistake of fact; a short time after the accident the defendant saw the plaintiff and asked her not to talk about the accident with any person except that an insurance man from his company would come to see her shortly; that she should talk with the insurance man and sign such papers as he wanted signed, and then the insurance man would settle with her; thereafter one John R. Burke came to plaintiff's home and told plaintiff and her mother that he represented the defendant's insurance company; they trusted Burke because the defendant said they could; they told Burke the things defendant told her to tell him and she and her mother signed the papers which Burke asked them to sign, just as defendant told her to do; plaintiff was then sixteen years of age; her parents had little education or business experience and none of them had had any experience with personal injury claims; none of them had ever employed a lawyer and they had no experience to guide them in fixing the value of plaintiff's claim; Burke told plaintiff's mother she should not talk to anyone else; he knew what the claim was worth and it was worth $477.50 and no more; Burke's conduct and statements were fraudulent in that he knew or should have known that her claim was worth several times the value he placed upon it; Burke did not disclose to the plaintiff or her mother the factual data which he had in his possession with respect to the nature, extent and probable effect upon the plaintiff as to her injuries and that he told plaintiff and her mother they did not need to talk with anyone else with respect to the claim and its value; the plaintiff and her parents were residents of McHenry county, Illinois; Burke further defrauded plaintiff in that he employed an attorney to draft a petition for guardianship and all other documents relating to the settlement, and this attorney was paid by the insurance company; the attorney's interests were adverse to those of the plaintiff; Burke did not read the petition and other documents, including the release which he asked plaintiff and her mother to sign, to them and did not explain the nature or effect thereof; plaintiff and her mother relied upon the statements Burke made and she and her parents were thereby lulled into taking no steps to protect her rights legally by serving a notice of injury.

Plaintiff further asserts that fraud was practiced upon the court in Illinois by not making a full disclosure to the court with respect to the known injuries sustained by the plaintiff and the extent of her disability by incorporating in the petition a statement that petit...