Schweikert v. John R. Davis Lumber Co.

• Decision Date: 14 November 1911
• Citation: 147 Wis. 242,133 N.W. 136
• Parties: SCHWEIKERT v. JOHN R. DAVIS LUMBER CO.
• Court: Wisconsin Supreme Court

147 Wis. 242

133 N.W. 136

SCHWEIKERT

v.JOHN R. DAVIS LUMBER CO.

Supreme Court of Wisconsin.

Nov. 14, 1911.

Appeal from Circuit Court, Price County; E. B. Belden, Judge.

Action by John Henry Schweikert against the John R. Davis Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

See, also, 145 Wis. 632, 130 N. W. 508.

This action is brought to recover damages for personal injury. The defenses interposed were: (1) A release and settlement; (2) contributory negligence on the part of the plaintiff; and (3) no negligence on the part of the defendant. A special verdict, consisting of 21 questions, was returned by the jury. The first, second, seventh, ninth, eleventh, twelfth, thirteenth, and sixteenth questions and the answers returned thereto are as follows:

“(1) Did the plaintiff execute the contract of settlement and release in question? Answer: Yes.

(2) If you answer the first question, ‘Yes,’ did the plaintiff, at the time of signing the same, possess sufficient understanding to know the nature of the release and its effect? Answer: No.”

“(7) Did the defendant negligently fail to inspect the tongs, before the plaintiff's injury, to ascertain the sufficiency and strength thereof for the work in question? Answer: Yes.”

“(9) Did the defendant negligently fail, before the injury to the plaintiff, to warn the plaintiff of dangers incident to remaining inside the rails after the tongs had been fixed to the rail, and while the track was being lifted? Answer: Yes.”

“(11) Was the danger of remaining between the rails after the tongs had been fixed to the rail, and while the track was being lifted, obvious to a person of plaintiff's experience, intelligence, and understanding? Answer: No.

(12) Did the plaintiff, before his injury, know and appreciate the dangers incident to remaining between the rails after the tongs had been fixed to the rail, and while the track was being lifted? Answer: No.

(13) If you answer question 12, ‘No,’ then ought the plaintiff, in the exercise of ordinary care, considering his experience, intelligence, and understanding, to have known and appreciated the dangers incident to remainingbetween the rails after the tongs had been fixed to the rail, and while the track was being lifted? Answer: No.”

“(16) Were the tongs reasonably safe for the work being done at the time of plaintiff's injury? Answer: No.”

The court changed the answers to all of these questions, excepting the first and twelfth, as not supported by the evidence, and awarded judgment for the defendant, from which judgment this appeal is taken. The other questions submitted to the jury are not material to a decision of the matters involved on this appeal.

W. K. Parkinson, for appellant.

Barry & Barry (A. W. Sanborn, of counsel), for respondent.

BARNES, J. (after stating the facts as above).

The court set aside the answers of the jury to the second, seventh, ninth, eleventh, thirteenth, and sixteenth findings of the jury, and in substance held, as a matter of law: (1) That the plaintiff was competent to make the settlement and to sign the release which he executed; (2) that defendant was not negligent; and (3) that the plaintiff was guilty of contributory negligence. If the trial court was right as to any of these questions, the judgment must be affirmed.

Plaintiff's left leg was badly fractured and bruised, and his head was cut and his skull fractured over the right eye. He suffered much pain after the accident. It is conceded that from August 17th to August 25th there was an abscess forming in the injured leg, and that during this time the plaintiff was delirious and restless at times, particularly at night. The leg was lanced and the pus removed on August 25th. The injury occurred on July 31st. The alleged settlement was made September 19th, 50 days thereafter, and 25 days after the lancing took place. Plaintiff left the hospital on October 10th, 21 days after he signed the release.

Plaintiff sought to avoid the effect of the release by testifying that he was delirious or insane or unconscious at the time he signed it, and he denied that the signature thereto was his. He said he had no recollection of seeing or discussing the terms of settlement with defendant's agent, and had no recollection of having signed any paper. He accounts for this condition of mind by saying that there was another abscess forming in the injured leg at the time the alleged settlement was made, from which he was suffering great pain, and which was thereafter lanced, and that he was being doped with whisky or morphine at the time, so that he was in a comatose state. The physician who attended plaintiff was not called as a witness. Dr. Parker, testifying as an expert, said that the formative period of an abscess was painful; that during the formation there is always more or less septicæmia which might produce fever, and that fever makes the subject flighty, and more or less delirious. There is no claim that the wound on the head particularly affected the brain.

The following is a brief résumé of the testimony on which the court concluded that the plaintiff was competent to make the contract of settlement, notwithstanding his testimony and the finding of the jury that he was incompetent.

Perhaps the most important item of evidence bearing upon plaintiff's condition was the clinical report kept by Sister Galla, at St. Joseph's Hospital at Chippewa Falls, where the plaintiff was being treated. This record was begun on August 1st, when plaintiff was admitted, and was discontinued after September 11th, for the reason, as stated, that the condition of plaintiff was such that there was no further need of continuing the record. This record showed the temperature and pulse of the plaintiff from day to day, which were generally taken twice a day; the medicine, nourishment, and stimulants given to him, and remarks showing when his wounds were dressed; whether the patient was quiet or restless; how he slept, and when he complained of pain, as well as some other information of a like character. The record was kept in part at least for the information of the doctor, so that he might know the condition of the patient at different hours of the day, and it was discontinued by his permission on September 12th, because there was no further necessity for keeping it. This record did not show a high temperature or a very rapid pulse until about August 19th. On that day, the temperature was 104.6 and the pulse 100, and on the following day the patient's temperature was 104 and his pulse 110. The temperature was reduced to 98 and the pulse to 80 on August 26th. From September 2d to September 10th, inclusive, the temperature varied from 98 to 99.4 degrees, and the pulse from 72 to 80 beats per minute. The record showed that the patient was given morphine on August 5th, August 20th, and August 25th, and that he was given whisky by the doctor's orders from time to time up to September 5th. The record further showed that the patient was discharged from the hospital as cured on October 10th. This record makes no mention of any abscess being formed about September 19th, when the release was signed. If the plaintiff was in the condition in which he testified he was, the necessity for keeping a clinical record about September 19th was certainly as great as it was at any time during his confinement at the hospital, and it is very significant that that record was discontinued nine days before, with the doctor's permission, and that it was not resumed. The nurse stated that the record was discontinued because there was not much to do with the patient any more; that the patient was getting better, and there was nothing in particular to keep track of thereafter.

The sister further testified that between the 25th of August and the 10th of October the patient was improving, and his mind was all right. This witness further testified that she was not present when the settlement was made, but that the plaintiff told her, on September 19th, when he went back to his cot, that “he was very glad this morning that he had settled with the company.” This question was then asked her, “Did you notice what his condition was that morning mentally, his mind?” And she answered: “He was very happy and glad; he was all right.” The witness further testified that she had noticed nothing wrong with his mental condition, except a few days from the 17th to the 25th of August, when he was delirious at times, mostly at night. The sister superior of the hospital testified that Mr. Nutter, the agent of the defendant who settled with the plaintiff, was at the hospital on September 19th, and that Mr. Schweikert gave her the check for safe-keeping which was given to him in settlement of his claim against the defendant. She testified she thought he was able to transact business on that day, and...