Kirl v. Zinner

• Decision Date: 07 January 1936
• Docket Number: No. 88.,88.
• Citation: 274 Mich. 331,264 N.W. 391
• Parties: KIRL v. ZINNER.
• Court: Michigan Supreme Court

274 Mich. 331

264 N.W. 391

KIRL

v.ZINNER.

No. 88.

Supreme Court of Michigan.

Jan. 7, 1936.

Action by Alex Kirl against Edith Zinner, Judgment for defendant, and plaintiff appeals.

Affirmed.

POTTER and BUSHNELL, JJ., dissenting.

Appeal from Circuit Court, Macomb County; Neil E. Reid, judge.

Argued before the Entire Bench.

George W. & Clifford A. John, of Mount Clemens, for appellant.

Bert V. Nunneley, of Mount Clemens, and Howard D. Brown, of Detroit (Robert G. Jamieson, of Detroit, of counsel), for appellee.

WIEST, Justice.

I do not join in the opinion of Mr. Justice POTTER, nor in the criticism of Dr. Norton, for I think the opinion relative to the release erroneous, and the criticism unwarranted.

Plaintiff was indigent, and the hospital was not a public institution, nor was the doctor in the employ of the public. The one opened its doors to the injured man, and the other rendered him medical and surgical services. Both were justly concerned about their pay for the services, and plaintiff evidently wanted them paid. It is true that when he entered the hospital he was then, and for a time, obstreperous, but such was not by reason of his fractured leg.

The physician, attending plaintiff at the hospital, testified:

‘During the night he got out of bed on his splint and was so obstreperous we had to put him in a restraining sheet, and of course he had to hove some medicine to help quiet him. * * *

‘We had to keep him in a restraining sheet for about a week, kept his hands tied so he would not tear the bandages off and get out of bed.

‘Q. Was there anything else the matter with him besides the broken leg and this cut, doctor? A. Well, just that he was poisoned with bad liquor.

‘Q. What makes you say that, doctor? A. Well, he had-he was just plain drunk, crazy drunk, in a way that good liquor would not make him, and he had an upset stomach, and he was vomiting, and his kidneys showed a marked irritation. There were, if I remember, rightly, three-plus albuminaria present, which it took about two weeks to clear up perfectly eventually. So I am satisfied it was some poison that he had been taking which brought it about. * * *

‘In the ordinary case of broken leg the patient is not out of his head. This patient was more or less out of his head for a time after he came to the hospital there.

‘Q. As far as you can remember, about how long would you say that was? A. Well, it was-well, he was very obstreperous and nonco-operative for a week afterwards. He was perhaps-you couldn't call him unconscious for more than, I think, 36 or 48 hours.'

At the time of the settlement, about five weeks after the accident, plaintiff was up and about on crutches. It is also true that the release was not read to him, but the reason was that it was handed to him and he read it, and stated that he also wanted an automobile. He disposes of the settlement and release by saying that he has no memory on the subject.

If that disposes of the matter, a safe retreat is open to parties to a settlement, for it shows an easy way to avoid a release.

At the time of signing the release, plaintiff's mental faculties were functioning, for he requested an automobile in addition to the payment of the doctor and hospital. This he did not deny and, of course, could not deny under his claim of no memory on the subject.

I cannot take the uncontradicted testimony relative to the release and, upon plaintiff's claim of lack of memory on the subject, find evidence of fraud, mistake, duress, or unconscionable advantage taken.

Of course, the doctor wanted his pay, as did the hospital, and it is no unkindness to plaintiff to find that he wanted to see them paid and accepted the only method open to him to accomplish that purpose.

A compromise and release is not to be confused with the law of contract, in which equivalents are exchanged, for the very essence of a release is to avoid litigation, even at the expense of strict right.

Here was no confession of liability, but an unliquidated claim for an alleged tort, asserted by one party and denied by the other.

The case at bar is not an instance of an insurance adjuster rushing to the hospital and inducing a sufferer in agony to release a tort-feasor. The adjuster was requested to visit the hospital by the doctor attending plaintiff.

It is a general and salutary rule that one repudiating or seeking to avoid a compromise settlement or release, and thereby revert to the original right of action, must place the other party in statu quo, otherwise the very fact of payment, in consideration of the compromise or release, will likely operate as a confession of liability.

When it appeared that plaintiff signed the release and indorsed the checks for the stipulated amount thereof, and his only reply thereto was that he had no memory of doing so, there was no impeachment of the release, and it was effective, and judgment should have been directed for defendant.

‘Where a party to a compromise desires to set aside or avoid the same and to be remitted to his original rights, he must place the other party in statu quo by returning or tendering the return of whatever has been received by him under such compromise, in case it is of any value, and so far as possible any right lost by the other party because thereof. This rule obtains even though the contract was induced by the fraud or false representations of the other party, or was obtained under duress, or was made under a mistake of fact or as to the law; and until this is done the settlement will constitute a good defense. By electing to retain the property, a party must be held to be bound by the settlement. The rule applies to actions ex contractu as well as ex delicto.’ 12 C.J. p. 355, § 57.

‘A settlement being once shown every presumption is indulged in favor of its fairness and correctness; and the burden of proving mistake, fraud, duress, or other facts relied on in avoidance of a compromise and settlement is on the party seeking to avoid the settlement.’ 12 C.J. p. 365, § 79.

By bringing suit, plaintiff forced defendant to plead the release and then, if successful, disposed of it by saying he had no memory on the subject.

The circuit judge may have given a wrong reason for a right result, but the right reason was also presented, and if the result is right, it must prevail.

I think the judgment should be affirmed, with costs to defendant.

NORTH, C. J., and FEAD, BUTZEL, and EDWARD M. SHARPE, JJ., concurred with WIEST, J.

The late Justice NELSON SHARPE took no part in this decision.

POTTER, Justice (dissenting.)

Plaintiff, a young man thirty-three years of age, was, December 14, 1932, injured by being struck by an automobile driven upon the public highway by defendant, brought suit to recover damages for the injuries suffered, had verdict at the hands of a jury for $950, which verdict was set aside by the trial court and judgment entered, notwithstanding the verdict, for defendant. Plaintiff brings the case here by appeal in the nature of writ of error.

The principal question as here presented is whether there was any evidence to go to the jury to sustain the verdict rendered by it. In order for plaintiff to recover, it was incumbent upon him to prove by a preponderance of the evidence that defendant was guilty of negligence which was the proximate cause of his injury; that he was free from negligence causing or contributing to the injury received by him; and that the settlement claimed to have been entered into by plaintiff did not constitute a bar to his recovery.

Appellant says that contributory negligence was not established and that the trial court should have granted a new trial to plaintiff on the ground of the inadequacy of the damages fixed by the jury. Defendantclaims plaintiff was drunk and was guilty of contributory negligence as a matter of law. There was proof introduced to sustain this contention, but plaintiff testifies directly and positively that he was not drunk and had not drunk any liquor that day; that although he had two empty bottles in his overcoat pocket, he had picked up these bottles to take home because he was in the habit of so doing, selling the bottles for his own use and benefit. There was other testimony tending to corroborate his claim. The question of whether plaintiff was drunk or not was for the jury. The trial court found the preponderance of evidence was in favor of plaintiff's intoxication, but recognized that he was bound to accept plaintiff's testimony as true for the purposes of the motion. The trial court placed plaintiff's contributory negligence as a matter of law upon his failure to note the lights of defendant's automobile coming from behind him. The court said: ‘* * * He was required to note the lights of Mrs. Zinner's car approaching, which would throw their rays on the pathway ahead of him. His own sworn testimony, undisputed in the case, that he did not observe these lights, clearly shows his contributory negligence.'

Plaintiff testified that he was walking on the right-hand side of the pavement within 1 or 2 feet of the outer edge and that he heard no horn sounded by defendant's car, nor was his attention attracted by the lights therefrom. It is not indicated by the trial court what plaintiff should have done had he known defendant's car was coming from behind.

Defendant had no right to drive her automobile upon the public highway at the place and at the time in question at a speed greater than would permit her to bring it to a stop within the assured clear distance ahead (1 Comp. Laws 1929, § 4697); and it was prima facie unlawful for her to exceed that limitation in speed (1 Comp. Laws 1929, § 4697). She was required by statute to have her car equipped with headlights (1 Comp.Laws 1929, § 4736) that would at all times, under normal atmospheric conditions, on a level road, produce a light sufficient to render clearly discernible a person 200 feet ahead (1 Comp. Laws 1929, § 4738), and she was required to have...