Pederson v. Eppard

• Decision Date: 27 June 1930
• Docket Number: No. 27503.,27503.
• Citation: 181 Minn. 47,231 N.W. 393
• Parties: PEDERSON v. EPPARD.
• Court: Minnesota Supreme Court

231 N.W. 393

181 Minn. 47

PEDERSON v. EPPARD.

No. 27503.

Supreme Court of Minnesota.

June 27, 1930.

Appeal from District Court, Carlton County; C. R. Magney, Judge.

Action by Ruby Holcombe Pederson against R. M. Eppard. From an order striking a certain portion of the answer as sham, frivolous, and irrelevant, defendant appeals.

Reversed.

Baldwin, Baldwin, Holmes & Mayall, of Duluth, for appellant.

Theo. Hollister and Lathers & Hoag, all of Duluth, for respondent.

DIBELL, J.

Action for malpractice. Plaintiff moved to strike a certain portion of the answer as sham, frivolous, and irrelevant. The motion was granted. The defendant appeals.

1. A "sham answer" is a false answer. To justify striking it, its falsity must be clear. 5 Dunnell, Minn. Dig. (2d Ed.) § 7667 et seq.

2. A "frivolous answer" is one the insufficiency of which is apparent upon bare inspection without argument. It cannot be stricken unless it so appears. 5 Dunnell, Minn. Dig. (2d Ed.) § 7668 et seq.

3. The third ground of the motion, the alleged irrelevancy of the matter stricken, more directly reaches the merits. To be irrelevant the pleading must have no material relation to the case; and here, too, the pleading should not be stricken unless the pleading to which the motion is directed is clearly, or as is sometimes said indisputably irrelevant to the issue. 5 Dunnell, Minn. Dig. (2d Ed.) § 7652 et seq.

4. The facts necessary to consider in determining the motion are about as follows: On December 9, 1926, the plaintiff fell on a street in Cloquet and sustained a fracture of her right leg. She was treated by the defendant for the injury. On March 1, 1927, after the defendant's services had ended, the plaintiff settled her claim against the city of Cloquet for $200 and was paid this sum by the city, and a release in the following form was given:

"Know all men by these presents, that I, Ruby Elleanor Holcombe, of the city of Cloquet, Carlton county, Minnesota, in consideration of the sum of two hundred and no/100 ($200.00) dollars, to me paid, the receipt whereof is hereby acknowledged do hereby and forever discharge the city of Cloquet, a municipal corporation, Carlton county, Minnesota, its successors and assigns, from all debts, claims, demands damages, actions and causes of action, whatsoever, which I now have or may hereafter have, and which have arisen out of, by reason of, or in any manner have grown out of injuries sustained by me, including injuries to me known and unknown which I have sustained, suffered, or may sustain or suffer by reason of falling on a sidewalk on the south side of Cloquet avenue in front of or near what is known as the `Berg' building situated south of and facing said Cloquet avenue, and east of Twelfth street, in said city of Cloquet, Carlton county, Minnesota, on or about December ninth (9), 1926.

"In witness whereof, I have hereunto set my hand and seal this 1st day of March, 1927.

                        "Ruby Elleanor Holcombe [Seal]"
                

The portion of the answer which alleged the release as a defense was stricken together with the allegation following to the effect that "by the said compromise and settlement * * * plaintiff released and discharged any claims which she might otherwise make against the defendant." Unless the release and this portion of the answer were clearly insufficient as a defense—unless they were insufficient as a pleading of defensive facts —they should not have been stricken.

The cause of action which the plaintiff had against the city for negligence was a single one. The cause of action which she had against the defendant for malpractice was a single one. The two parties, the city and the defendant, and the two causes of action could not be joined. McGannon v. Chicago & N. W. R. Co., 160 Minn. 143, 199 N. W. 894. The defendant Eppard was liable only for the damages which his negligence caused. Korman v. Hagen, 165 Minn. 320, 206 N. W. 650. The city was liable only for the damages caused by its negligence; but if the damages were enhanced by the negligence of her physician, and she was not negligent in selecting him, the city was liable for the enhanced damages arising from the original injury caused by its negligence; or, in another way, all the damages which she suffered were in such case the proximate result of the defendant's negligence. Goss v. Goss, 102 Minn. 346 113 N. W. 690; Fields v. Mankato Electric Traction Co., 116 Minn. 218, 133 N. W. 577.

If the plaintiff had settled with the defendant for his negligence, the settlement would not be a bar to an action by her against the city, but in such case only the damages caused by the city could be recovered; and the difficulty, whatever it might be, of limiting the damages to those caused by the city would have to be met. Viou v. Brooks-Scanlon Lumber Co., 99 Minn. 97, 108 N. W. 891, 9 Ann. Cas. 318. So if the plaintiff settled with the city, and the settlement included all the damages suffered, including those which were the result of the defendant's negligence, it may be that the city would be entitled to recover the amount of the damages caused by the defendant. Fisher v. Milwaukee, etc., 173 Wis. 57, 180 N. W. 269.

The defendant cites Hartigan v. Dickson, 81 Minn. 284, 83 N. W. 1091. That case goes on a different principle. The plaintiff suffered an injury while in the employ of the Great Northern Railway Company and settled with the railway for his cause of action. He then brought suit against the defendant Dickson, the foreman, whose personal negligence caused the injury. It was...