180 Mich. 51 | Mich. | 1914
Plaintiff and appellant brought suit against defendant in an action to recover damages for injuries received by him while in its employment, whereby he lost the sight of one of his eyes, claimed to have been caused by the negligence of defendant. The case was brought on for trial before the court and a jury, and, at the close of plaintiff’s case, on
In stating the facts in this case, this court will follow the well-established rule in cases of a judgment entered upon an instructed verdict against the appellant by giving the proof presented upon his part its greatest probative value.
The case presented by appellant shows that he was an “experienced, all around machinist,” employed at the time as an automobile assembler by defendant; that the injury referred to occurred September 22, 1911, and was caused by a defective drill in an electric hand motor which he was then operating, which drill had been furnished plaintiff by the keeper of defendant’s stockroom, upon the usual requisition in the due course of business; that immediately after this injury the stockkeeper took plaintiff in defendant’s automobile from its factory to the office of Dr. Goux, a surgeon and eye specialist, who was employed by the London Guaranty & Accident Insurance Company, by which company defendant was insured against industrial accidents; that, after the examination, Dr. Goux ordered plaintiff removed to Harper Hospital, where he treated him until October 9th following, when he was discharged. During the time plaintiff was confined in the Harper Hospital under treatment by Dr. Goux, he was visited several times by Thomas Cotter, an attorney and claim agent employed by the London Guaranty & Accident Insurance Company, who talked with plaintiff relative to a settlement, and requested him to call at his office in the Ford Building as soon as he got out of the hospital.
The night before plaintiff left the hospital Dr. Goux called upon him and stated to him he would recover
“For and in consideration of the sum of one hundred and ten ($110.00) dollars to me in hand paid in cash and the payment of my hospital and doctor bills not to exceed the sum of one hundred ($100.00) dollars, making a total of two hundred and ten ($210.00) dollars by the Regal Motor Car Company, receipt whereof is hereby confessed and acknowledged, I, the undersigned do hereby release, discharge, forever quit-claim and set over unto the said Regal Motor Car Company any and all claim, claims, action, actions or causes of action which I now have or may hereafter have against the said Regal Motor Car Company by reason of an accident which occurred to me on or about the 22nd day of September, A. D. 1911, at the plant of the said Regal Motor Car Company in the city of Detroit, in which accident I sustained injuries, personal or otherwise.
“In further consideration of said sum or sums, I, the undersigned do hereby release and discharge the said Regal Motor Car Company from any and all claims for damages which I now have or may hereafter have against the said company by reason of any*54 act or thing heretofore done. This release to benefit all persons, firms, or corporations chargeable with negligence or liability in the premises.
“In witness whereof I have hereunto set my hand and seal, this 9th day of October, A. D. 1911.
[Signed] “Louis Bertha.
“Witnesses:
“Harry Hanford.
“Thomas M. Cotter.”
Plaintiff learned very soon afterwards that the sight of his right eye was totally destroyed, and that there was strong probability of a sympathetic injury to the left eye. He immediately caused the sum of $110, with interest, to be tendered back to defendant company. Through its president this tender was refused, and suit was at once instituted.
To the declaration in the case defendant promptly pleaded the general issue, with the following special notice of defense:
“To said Plaintiff: •
“Please take notice that on the trial of the above-entitled cause the said defendant will offer evidence to prove and insist upon in its defense that, if the said plaintiff ever had any claim or cause of action against the said defendant, as in plaintiff’s declaration alleged, that the same has been fully satisfied and discharged, and full receipt, release, discharge, and quittance given therefor by the said plaintiff to the said defendant.”
During the presentation of proofs on the part of plaintiff, and before directing a verdict for defendant, the court, upon separate motions made by defendant, had excluded and stricken out all the testimony of the plaintiff relative to statements and representations made to him by Dr. Goux and Thomas Cotter, also all the testimony of the witness Cotter relative to the part he had taken in the matter in soliciting and securing a settlement and the release which is in evidence; all for the reason that there was no evidence in the case connecting the acts and doings
At the close of plaintiff’s case, defendant moved for an instructed verdict, the matter having been argued before the court in the absence of the jury before the formal motion was made. The court granted the motion, giving his reasons therefor in the following language:
“But we are not concerned with whether there was fraud or whether there were misstatements in this particular case, because the parties who made these statements, in so far as the testimony goes, have not been shown tb be connected with the defendant, the Regal Motor Car Company. There has been testimony introduced here in your absence which shows an agency, but that the agency was of such an extent as would warrant a connection between the defendant and the plaintiff in so far as these representations were made in connection with the alleged settlement, there isn’t anything at all in the testimony which would justify us in concluding that was so. Consequently this man accepted the payment of the money, and he cannot now sue a second time for that which he received at another time in full for his compensation, and your verdict will be a verdict for the defendant of no cause of action.”
Exceptions were taken to and errors assigned by appellant upon the foregoing holdings of the court, and upon the final direction of a verdict in favor of defendant and against plaintiff. As all of the assignments of error are based upon these rulings of the court which were had upon the sole ground of the insufficient showing on the part of plaintiff of such a relation between Dr. Goux and Mr. Cotter and the defendant in the case to constitute an agency or any authority to act on their part to bind defendant, they will be considered collectively.
Appellant relies upon the application of the doctrine of ratification and estoppel. Considering the evidence on the part of plaintiff as true, there can
It is an accepted fact that both Dr. Goux and Mr. Cotter were the representatives of the insurance company which had issued industrial accident policies in favor of defendant which were then in force; and it is also an accepted fact that the release which was secured from plaintiff by Cotter was in terms for the benefit of defendant company alone, which, by such release, if valid, was freed from any and all liability on account of the injury which plaintiff had suffered. Without reference to any active fraud on the part of the two representatives of the insurance company, it is apparent that the amount which plaintiff was induced to accept was insignificant compared with the extent of the injury he had suffered, and plaintiff’s testimony shows that it amounted to fraud in law.
Appellant contends that defendant has ratified and adopted the acts of these representatives of the insurance company. The pleadings and evidence in the
It is a proposition of law too fundamental and too well established to require á citation of authorities that, if a party adopts even unauthorized acts of another, and has received and accepted benefits accru
As already stated, and as appears by the excerpt from the charge of the court directing a verdict in the case, the sole question considered and passed upon by the trial judge was the question of the relation of Dr. Goux and Mr. Cotter in this transaction to the defendant company, and this is the only question now before this court for determination. This is not an indirect attack upon this release in a.collateral proceeding, nor are we called upon at this time to determine the question of the duty of inspection of the tool, the breaking of which caused this injury, or the negligence of either of the parties to the litigation.
For the reasons herein stated, the judgment of the circuit court is reversed and set aside, and a new trial is ordered.