Toppass v. Perkins' Administratrix

• Citation: 268 Ky. 186
• Parties: Toppass v. Perkins' Administratrix.
• Decision Date: 16 February 1937
• Court: United States State Supreme Court (Kentucky)

268 Ky. 186

Toppass v. Perkins' Administratrix.

Court of Appeals of Kentucky.

Decided February 16, 1937.

1. Appeal and Error. — On appeal from judgment against motorist for death of guest, whether motorist was entitled to directed verdict

on ground guest was contributorily negligent as a matter of law for riding with motorist while motorist was intoxicated depended on consideration of evidence viewed in light most favorable to guest's administratrix.

2. Automobiles. — One who voluntarily permits himself to be driven by drunken chauffeur does not exercise ordinary care for his own safety, and assumes danger incident to such driving.

3. Evidence. — It is common knowledge that drinking of intoxicating liquor, though it be not done to extent of actual intoxication, begets a spirit of recklessness, and is responsible for numerous accidents.

4. Automobiles. — While standard of duty of a guest is the same as that of the driver, namely, to exercise ordinary care, conduct required to fulfill that duty is ordinarily different because circumstances are different, and precautions to be taken by guest are in any event less than those required of driver.

5. Automobiles. — Whether guest is contributorily negligent in riding with intoxicated driver is usually question of fact as to whether driver was so far intoxicated as to affect his ability to operate car, and whether guest had any cause, in exercise of ordinary care, to be apprehensive on that account for his own safety.

6. Automobiles. — In action against motorist for death of guest, instruction denying liability for guest's contributory negligence for riding with driver while intoxicated only if guest knew or should have known motorist was so intoxicated as to be unable properly to manage, operate, or control automobile held proper under evidence.

7. Automobiles. — In an action against motorist for death of guest, evidence as to guest's contributory negligence in riding with motorist while motorist was intoxicated held for jury.

8. Trial. — Cases arising from same accident where defendants are same and issues are substantially so should be tried together if court concludes that no undue advantage may be obtained by one or the other party by reason of joint trials.

9. Trial — Where intoxicated motorist's negligence resulted in collision with approaching automobile while motorist was driving at terrific speed around curve, allowing joint trial of actions by each of two guests and by administratrix of another guest held not error, in view of fact each plaintiff was competent to testify in other actions.

10. Release. — In cases ex delicto when a party has received money in discharge of liability for unliquidated damages, he must restore money before he can avoid contract of settlement on ground of fraud.

11. Release. — Release or discharge must be specifically pleaded to be available, since it is an affirmative defense.

12. Pleading. — It is generally regarded as good pleading not to anticipate a defense.

13. Compromise and Settlement. — If defense of compromise and settlement is pleaded, plaintiff must respond to it.

14. Release. — Restoration or offer of restoration of consideration for release is made to accomplish avoidance of release, and is condition precedent to doing so.

15. Release. — In tort action wherein defendants pleaded compromise and settlement, plaintiff held entitled to tender restoration of consideration for settlement after such plea and during trial, in order to plead in reply defendants' fraud in obtaining settlement.

16. Release. — Contract of automobile liability insurance is made for benefit of those who might be injured or killed through negligence of insured, and such beneficiaries stand in place of insured as respects whether representation of insured's agents to obtain settlement that insured could only pay small sum for injuries was fraudulent, where insured had liability policy of considerable value.

17. Release. — In action against motorist for death of guest, where motorist pleaded compromise and settlement, reply alleging motorist fraudulently obtained settlement by representation of agents that he could only pay small sum when in fact he was heavily insured held not demurrable, notwithstanding failure to plead motorist was queried as to insurance, in view of evidence and rule as to consideration given pleadings after judgment, under which allegations would be viewed with indulgent eyes.

18. Appeal and Error. — In action against motorist for death of guest, where motorist pleaded compromise and settlement, allowing pleading, statement and evidence that motorist was heavily insured for liability held not harmful error, where such fact tended to show fraud of motorist in obtaining settlement through representation of his agents, who were also insurer's agents, that he was unable to pay more than small sum, and where jury allowed only small recovery by only one of two other guests whose claims were also covered by insurance.

19. Appeal and Error. — Only appellee's evidence would be regarded on question of insufficiency of evidence to sustain verdict.

20. Release. — Where amount paid in settlement for death arising from act which was conceded to be gross negligence and which was proven to be criminal recklessness was palpably inadequate, it required but slight additional evidence of fraud in obtention of release to overcome such a settlement.

21. Fraud. — Half a truth may be as vicious as an express misrepresentation.

22. Release. — Courts do not look with favor on day after the accident settlements.

23. Release. — In action against motorist for death of guest wherein motorist pleaded compromise and settlement, evidence of motorist's fraud in obtaining settlement by representation of his agents that he was unable to pay more than small sum, although he was heavily insured held to authorize verdict allowing recovery notwithstanding settlement.

24. Contracts. — Repudiation for misrepresentation or fraud must be made seasonably, the party aggrieved being put on his election to abide or rescind when knowledge of the fraud is brought home to him.

25. Release. — Election to affirm a settlement may be either by express words or unequivocal acts.

26. Release. — While reasonable diligence to discover facts invalidating release and promptness to disavow a voidable contract after acquiring full knowledge of conditions are requisite, where there is an executed contract it requires an extreme case before application of rule of ratification will be inferred from conduct.

27. Release. — One should not be held to have adopted a release procured by fraud in absence of unequivocal act giving rise to inference of intent to ratify, or unless reasonable minds would say he was guilty of conduct tending to show an intention to do so.

28. Release. — In action against motorist for death of guest wherein motorist pleaded compromise and settlement and guest's administratrix showed fraud in procurement of settlement, use by administratrix of small part of money given in consideration for settlement after learning of fraud of motorist held not to show intention to ratify settlement estopping administratrix to object to settlement as bar to action.

Appeal from Franklin Circuit Court.

J. MARSHALL McCANN for appellant.

L.W. MORRIS and MARION RIDER for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Affirming.

The appeal is by Charles Toppass from a judgment for $5,000 rendered against him in favor of the administratrix of the estate of Velma Perkins, deceased, for damages for her death in an automobile accident. The suit was prosecuted against Toppass and Raymond Saunders, but the verdict was in favor of Saunders. The suit of George Hodges and Ethel Long against both defendants for injuries sustained in the same accident were tried with this case. Miss Long received a judgment for $200 against Toppass, which is not appealed, but the verdict went against Hodges. The place of the accident was about three miles from Frankfort at what is known locally as Black's Pond. There is no claim on appeal that the defendant was not negligent.

1. We have a novel situation. The defendant, who was driving his own car, insists that he was drunk, and his condition caused the accident. The plaintiff insists the driver was not drunk. The anomaly arises from the defense of contributory negligence on the part of the decedent in having become the guest of the defendant knowing him to be intoxicated.

The parties were friends living in the Thorn Hill section of Frankfort. On Saturday afternoon, June 2, 1934, Velma Perkins and Ethel Long went to the business part of the city and there saw Toppass and Hodges sitting in the former's automobile. Toppass offered to drive the young women home and they got in the rear seat with Hodges. He drove around a square and instead of going to Thorn Hill, went up the Georgetown and Lexington road over their protest. Toppass insisted that Miss Perkins get in front with him and she climbed over there while the car was in motion. About that time he began driving very fast. The young ladies began screaming and calling upon him to stop and let them out. Hodges called upon him to slow down. Continuing towards Georgetown at a terrific rate of speed, Hodges reached over from the rear seat to turn off the ignition key, but the speed of the car going around a curve threw him off his balance. About that time the machine struck the approaching car of Saunders. Such is the evidence for the plaintiff.

Toppass testified that Hodges had asked him to drive the party to Stevens' road house and there was never any purpose to take the young ladies home. They were out for a joy ride. He says there was no screaming or demand that he stop. Toppass related what took place until, as he said, he indistinctly remembered seeing the Saunders' car approaching. He knew nothing more.

According to Toppass and Hodges, each of them had had five or...