Serr v. Biwabik Concrete Aggregate Co.
| Decision Date | 11 February 1938 |
| Docket Number | 31,285 |
| Citation | 278 N.W. 355,202 Minn. 165 |
| Parties | EDNA J. SERR v. BIWABIK CONCRETE AGGREGATE COMPANY |
| Court | Minnesota Supreme Court |
[Copyrighted Material Omitted]
Action in the district court for St. Louis county to recover for injuries sustained by plaintiff when an auto in which she was riding collided on the highway with a horse under the care and in the possession of defendant. The case was tried before Edwin J. Kenny, Judge, and a jury. Plaintiff had a verdict of $4,300. Defendant appealed from an order denying its alternative motion for judgment or a new trial. Affirmed.
Release -- avoidance -- mistake.
1. Absent express provisions to the contrary, a written agreement of settlement for known injuries does not bar a later action for existing but unknown injuries, there being mutuality of mistake as to the latter. But where the release expressly so provides, subsequently discovered unknown injuries will not support a suit for its avoidance.
Unknown and unexpected consequences of a known injury will not bring a case within the rule permitting avoidance of a release on the ground of mutual mistake.
Contract -- validity -- ignorance of material fact affecting subject matter.
2. Equity aims to afford relief to parties who have bound themselves by a written contract executed in justifiable ignorance of a past or existing fact which is so material to the subject matter that if it had been known the contract would not have been made.
Release -- validity.
Record examined and found to sustain jury's verdict that release here involved was not a contract to buy peace but was in fact a settlement for known injuries only.
Release -- effect of invalidity.
3. Purported release also contained agreement of indemnity. As both were integral parts of the same transaction, held that the release, having been found invalid, indemnity provision therein necessarily fell with it.
Release -- avoidance -- mistake -- pleading.
4. Plaintiff was injured through negligence of defendant's servant. Plaintiff and servant later entered into purported settlement whereby both servant and master were by its terms relieved of liability. Thereafter plaintiff sued master in damages for servant's negligence. As defense thereto defendant-master interposed purported settlement, in form a release of wrongful act complained of. Held that plaintiff could plead and prove existence of mutual mistake at time of its making in avoidance thereof, although servant was not party to suit, as master's liability was derivative only, and as such release was subject to direct attack, defense being dependent upon validity of instrument.
Automobile -- action for injuries -- questions for jury -- proximate and intervening cause.
5. Questions of proximate cause and intervening cause held, upon present record, to present fact issues for jury's determination.
Trial -- mistrial -- hysteria of plaintiff during recess.
6. As to whether a mistrial should have been ordered where plaintiff during court's recess became hysterical, held, upon facts stated in opinion, to lie within discretion of trial court, and its exercise thereof was proper.
Automobile -- collision with horse -- action for injuries -- instructions.
7. Court's instructions relative to defendant's liability for failure to keep a borrowed horse off a much used highway at night held proper.
Appeal and error -- review -- argument of counsel -- prejudicial effect.
8. As to claimed prejudicial remarks in counsel's closing arguments to the jury, held, upon facts here appearing, that court properly exercised its discretion in holding them to be harmless.
UPON APPLICATION FOR REARGUMENT.
March 11, 1938.
Parties -- defect of parties -- objections -- demurrer or answer.
9. Where defect of parties is claimed in a cause, objection must be raised either by demurrer or answer. If neither is done defendant cannot later raise the objection by motion for dismissal, for judgment on the pleadings, for direction of verdict, or by objection to the evidence.
Parties -- necessary and proper parties.
10.Who shall be made parties in a given cause is a question of convenience and discretion rather than of absolute right, to be determined according to the exigencies of the particular case.
Necessary parties are those without whom no decree at all can be effectively made determining the principal issues in the cause. Proper parties are those without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy and conclude the rights of all the persons who have any interest in the subject-matter of the litigation.
Release -- fraud -- return of money received under void release.
11. Fraud may be shown in a legal action to defeat the effect of a release interposed defensively. A party is not bound to return or tender back money received under a void or voidable release where the adverse party pleads and relies upon the release as a defense.
Parties -- bringing in new parties.
12. By statute (2 Mason Minn. St. 1927, § 9181), as well as by virtue of inherent power possessed by court, persons who are not parties to a suit may be brought in as additional parties whenever, for the complete administration of justice, this is deemed necessary.
Release -- validity.
13. Upon facts set forth in opinion, held that the only issue for determination was validity of a purported release, not the absence or presence of a party to that instrument who was not a party to the action.
Hunt & Palmer, for appellant.
Sidney E. Kaner and Lewis, Grannis & Underhill, for respondent.
Defendant appeals from an order denying its blended motion for judgment notwithstanding or new trial.
The facts viewed in the light most favorable to plaintiff may be summarized in this fashion: Defendant over a period of years had been engaged in operating a gravel plant near highway No. 35 between Aurora and Biwabik. In carrying on its work it had occasion to use horses. A few days prior to July 30, 1930, it had borrowed a horse from a near-by farmer and was using it with one of its own. Both animals were in its exclusive care and possession, the man in charge being one Korenich. On the day mentioned the borrowed horse had been used with one of defendant's own horses at the plant. At quitting time, about five o'clock that afternoon, Korenich took the horses to the company's barn for the purpose of unharnessing them. He tied and unharnessed the company's horse first. Without tying the horse here involved, although there was a halter rope attached to it, he proceeded to take off its harness. As the harness was removed the horse turned around and calmly took a walk out of the barn. Korenich made some futile efforts to catch it, but the horse kept Having failed to accomplish his purpose, he concluded to also let loose the other horse, it being his idea that if the horses were together they probably would not stray far. Another horse owned by defendant but not in use that day had been permitted to roam outside all day. As quitting time had arrived Korenich made no further effort to secure any of the horses but left for his home some distance away.
Mr. Taylor, president and active manager of defendant company, was at the office near which the barn was located. He stayed until about six o'clock but claims he did not see the horses. There was no fence between the company's property where the horses were grazing and the highway, so the horses could "go anywhere they wanted to."
Shortly after nine o'clock that evening, the night being "pretty dark," the accident happened. Plaintiff, as a guest passenger, was riding in a car driven by one Strutzel, she and two other girls occupying the rear seat, one Zimmerman occupying the front seat with and to the right of the driver. Strutzel testified that he was driving upon this highway, which is a paved and much used one, at a rate of about 35 to 40 miles an hour. He describes the road as wide, the country as hilly. He noticed a car coming from the opposite direction. Both cars were lighted. As the two cars were approaching each other Strutzel was "blinded by the other driver's lights to a certain extent." As the approaching car The object to which the witness referred was the borrowed horse. As a result both windows on the left side of the car were smashed and the horse instantly killed. The witness noticed that plaintiff "was quite badly cut up" from the shattered glass. She was taken immediately to a doctor for treatment and thereafter taken to her father's home not far distant from the place of accident.
Plaintiff's father was an employe of defendant. He testified that the day after the accident Mr. Taylor, acting for defendant, talked to him about the accident. He told Taylor that his daughter "was hurt pretty bad." A few days later Taylor and one Campbell, also an officer of defendant, again talked to plaintiff's father, the former suggesting "if your daughter would like to do any settlement about that accident case" to come around...
To continue reading
Request your trial