Madison Trust Co. v. Helleckson

• Decision Date: 04 December 1934
• Citation: 257 N.W. 691,216 Wis. 443
• Parties: MADISON TRUST CO. v. HELLECKSON ET AL.
• Court: Wisconsin Supreme Court

216 Wis. 443

257 N.W. 691

MADISON TRUST CO.

v.HELLECKSON ET AL.

Supreme Court of Wisconsin.

Dec. 4, 1934.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge. Affirmed.

Action by Madison Trust Company, as administrator of the estate of Helen Lorraine Holl, deceased, against Theodore O. Helleckson and his insurer, commenced November 7, 1933. From a judgment for the plaintiff entered April 18, 1934, the defendants appeal.

A five year old child was killed by being struck by an automobile driven by a servant of the defendant Helleckson engaged upon his master's business. The plaintiff is the administrator of the deceased child's estate. The administrator sues Helleckson and his insurer to recover the damages of the parents of the child under the death by wrongful act statute (St. 1933, §§ 331.03, 331.04) on the ground that the death of the child was caused by negligence of the driver of the car. The parents “individually and as parents and natural guardians of * * * (the child) for and in consideration of $245.69” signed an instrument by which, by its terms, they released and discharged Helleckson, his driver, and his insurer from all liability for the killing of the child, and agreed to indemnify them from any claim growing out of the accident resulting in her death. The complaint alleged that the release was procured by fraud of the insurer and prayed that it be set aside.

The jury by special verdict found negligence of the driver of the car as to speed, lookout, control of the car, and warning, and that each such negligence proximately caused the child's death, and assessed the parents' damages at $3,712.69. They also found that the insurer, for the purpose of inducing the parents to sign the release, falsely represented in substance that the release or payment thereunder was for a gratuity, a customary gesture of good will in a nonliability case, and that, if suit were brought, the gratuitous offer would be withdrawn, and that an action would be of no use; that the insurer for such purpose falsely represented that, unless the driver of the car was found guilty of gross or criminal negligence, there could be no liability at all, and that, if so found guilty, it would result in a prison sentence for him and might result in the death of his mother; that the parents believed these representations, and relied thereon in signing the release; and that the parents under the existing circumstances used due care in so relying. The court entered judgment for the plaintiff on this verdict.Sanborn, Blake & Aberg, Philip G. Sanborn, and Charles A. Winding, all of Madison, for appellants.

Michelson & Forkner, of Madison, and John E. Ferris, Jr., of Milwaukee, for respondent.

FOWLER, Justice.

The appellants contend that the court erred (1) in overruling their demurrer ore tenus to the complaint and (2) in denying their motion to strike certain allegations of the complaint; that the evidence was insufficient to support the findings of the jury (3) as to fraud in procurement of the release and (4) upon the issue of negligence; (5) that the damages assessed by the jury are excessive; that the court erred (6) in instructing the jury; and that this court should direct dismissal of the complaint or order a new trial.

[1][2] 1, 2. The appellants devote five pages of their brief to support their contentions that the complaint does not state a cause of action because of insufficiency of its allegations of fraud in procuring the release and that the court erred in refusing to strike all the allegations of the complaint relating to said issue. The preparation and presentation of all this is labor lost. When a trial court has proceeded with the trial of a case and taken a verdict and entered judgment thereon, this court will ordinarily devote its attention to whether the evidence supports the verdict and judgment, and consider the complaint amended to accord with the facts found, if the complaint as framed is insufficient to support them, and whether any immaterial or irrelevant evidence was admitted upon the trial that invalidates the verdict, and will do so here. Error is not assigned for admission of immaterial or irrelevant evidence upon the trial, nor was it claimed upon the argument nor is it claimed in the briefs that any such was admitted. The motion to strike, being aimed at the entire cause of action to set aside the release, was in effect a mere repetition of the demurrer ore tenus, and therefore entirely useless. The demurrer having been overruled, denial of the motion would follow as a matter of course.

3. The appellants argue that the parents of the child, as intelligent persons able to read and to comprehend the language of the release, having had ample opportunity to read the release and consider its terms, and no artifice having been resorted to to obtain their signatures, may not be heard to say that they did not understand its contents and understood that it was a mere receipt for money. We consider this position well taken. But this does not cover the whole issue of fraud in inducing its execution. The questions submitted upon this issue did not go to the proposition of misunderstanding of the terms of the release or misrepresentation of its nature or contents. The inducing representations covered by the questions were that the insurer's agent represented that (a) the instrument and payment thereunder were “for a mere gratuity, a customary gesture of good will in a non-liability case,” and, if suit was brought, the gratuitous offer would be withdrawn and the action would be useless; and that (b) unless the driver of the car was found guilty of gross or criminal liability, there could be no liability at all, and that, if he was found guilty, it would result in his being sent to prison; that he was already in bad with the police department, and this would be bad for him, and might result in the death of his mother.

[3][4][5] We are of opinion that these representations taken as a whole, if established by the evidence as false, and justifiably relied on by the parents, are sufficient to avoid the release. Some of them, if standing alone, doubtless would not support avoidance because immaterial. As, for instance, that the driver of the car would be sent to prison and that he was already in bad with the police department and it would be bad for him. But others were fraudulent in character. The statement that it was customary as a gesture of good will to give gratuities in nonliability cases itself would be immaterial, and of itself would not form a basis for avoidance of the release, but for the fact that it carries the imputation that this was a nonliability case, and that is a different matter, as are the statements that an action would be useless, and that there would be no liability unless the driver of the car was guilty of criminal negligence. The agent who made the statements is an attorney at law, and he had made an investigation of the facts which the parents might rightly assume was full and fair, and which they might rightly rely upon. That liability did not exist upon the facts and that suit would be useless might be matter of opinion if honestly made by a person not a lawyer assuming to advise the party adverse to the party he was representing. The statement that there could be no liability at all unless the driver was found guilty of gross or criminal negligence could not have been honestly made, as it was necessarily known to be false by the agent as a practicing attorney. Statements that would be matters of opinion if honestly made become statements of fact if the one who makes them does not himself entertain them. Birdsey v. Butterfield, 34 Wis. 52. Whether statements are to be considered as matters of fact or matters of opinion depends on whether the person to whom they are made may rightly rely upon them. Karls v. Drake, 168 Wis. 372, 170 N. W. 248;Swoboda v. Rubin, 169 Wis. 162, 170 N. W. 955. The jury here found that the parents were justified in relying upon these statements. It is urged that the statements are matters of law and consequently might not rightly be relied on. It is true that they are or partake of the nature of matters of law, and that a representation of a matter of law does not ordinarily constitute a basis for an action for fraud. But, “* * * even though misrepresentations are in part in relation to matters of law, if they are made by one who has superior means of information and professes a knowledge of the law, and thereby obtains an unconscionable advantage of another, who is ignorant and has not been in a situation to become informed, the injured party is entitled to relief, just as well as if the misrepresentation had been concerning a matter of fact.” Allison v. Wm. Doerflinger Co., 208 Wis. 206, 242 N. W. 558, 561.

[6] We are of opinion that the circumstances here involved bring the case within the rules of the cases above cited, and that the representations found, if the evidence supports the findings, form sufficient basis for rescission of the release.

Counsel argue that the language of the questions submitted is...