Brown v. Ocean Accident & Guarantee Corp.
140 N.W. 1112
Wis.
1913
Check Treatment
Kerwin, J.

The court below sustained the demurrer upon the ground that the representations are not actionable, because they relate, first, to what would occur in the future; and second, as to what defendant would do in the future, and that neither of the representations relates to a present or past state of facts; that the representations were nothing more than the expression of opinion as to what the future physical condition of the plaintiff would be. The following cases are relied upon by the court below: Patterson v. Wright, 64 Wis. 289, 25 N. W. 10; Morrison v. Koch, 32 Wis. 254; Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; and Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179. These cases are quite close to the border line between statements which amount to representations of existing facts and mere matter of opinion; but we do not think they are decisive of the instant case. The complaint in the present case charges that immediately after the injuries the defendant took charge of plaintiff, sent him to a hospital for treatment and employed physicians and others to take charge of him, and attempted to cure him; that while plaintiff was under the control of defendant, its agents and servants, defendant “through its agents and servants” falsely and fraudulently represented that plaintiff would be on his feet and ready and able to go to work in five months after the time of injury, and that the injuries were not permanent and would not permanently disable plaintiff, etc. The complaint is fully set out in the statement of facts, therefore we refer only to the substance of the allegations under consideration. In view of the allegations that defendant took charge of plaintiff, put him in charge of physicians and undertook to cure him, together with the allegation that the representations were made through the defendant, its agents and servants, a legitimate inference from the allega*201tions is that the representations respecting the extent of plaintiff’s injuries were made on the statements or bj authority of the physicians in charge, and therefore must be regarded as representations of existing facts, coming from persons supposed to have special knowledge on the subject, and capable of stating accurately the extent of plaintiff’s injuries. It is therefore apparent that defendant knew or ought to have known through its agents and servants the extent of plaintiff’s injuries, and the plaintiff had a right to rely upon such statements as coming from persons with knowledge. We think the complaint states a cause of action under the decisions of this court. Woteshek v. Neumann, 151 Wis. 365, 138 N. W. 1000; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Schiefelbein v. Fidelity & C. Co. 139 Wis. 612, 120 N. W. 398; J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231; Warner v. Benjamin, 89 Wis. 290, 62 N. W. 179.

The gravamen oí the cause of action here is deceit; it is therefore unnecessary for the plaintiff in his complaint either to affirm or disaffirm the settlement which was induced by the fraud of the defendant. The questions discussed by respondent, therefore, under these heads need not be considered. True, plaintiff must allege that he had a cause of action and that by the fraudulent representations of defendant, which he relied upon, he was induced to release it and thereby sustained damage. This the plaintiff has done, and therefore under the authorities heretofore cited the complaint states a cause of action.

The plaintiff was not obliged to rescind the release or agreement obtained by fraud and prosecute the original claim against the Great Northern Concrete Company, but might retain the money received and proceed to recover damages for the fraud. Gould v. Cayuga Co. Nat. Bank, 99 N. Y. 333, 2 N. E. 16. It is true that in such action the plaintiff must not only prove the fraudulent representations and his reliance tkereon, but also that he sustained damages thereby. Pecun*202iary loss to tbe deceived party is, of course, essential to tbe maintenance of tbe action. Urtz v. N. Y. C. & H. R. R. Co. 202 N. Y. 170, 95 N. E. 711. It is claimed on tbe part of counsel for respondent, however, that the allegations of tbe complaint as to the cause of action against tbe concrete company are not sufficient. It is true they are very meager, and whether tbe complaint is open to a motion to make more definite and certain on that point we need not consider, because we think it is sufficient in tbe present action where all facts alleged and legitimate inferences therefrom are admitted on demurrer. Schiefelbein v. Fidelity & C. Co. 139 Wis. 612, 120 N. W. 398; Curran v. A. H. Stange Co. 98 Wis. 598, 74 N. W. 377.

It is further argued that tbe alleged fraud was not tbe proximate cause of tbe plaintiff’s injury, but that the insolvency of said Great Northern Concrete Company was -the proximate cause of such injury. This does not follow from tbe allegations of tbe complaint admitted on demurrer. There is nothing in tbe complaint which necessarily shows that tbe insolvency of tbe Great Northern Concrete Company prevented tbe recovery of damages by tbe plaintiff, bad no settlement been induced by tbe fraud of tbe defendant. It appears from tbe allegations of tbe complaint that tbe insolvency occurred after tbe signing of tbe release; bow long after does not appear.

We think tbe court below erred in sustaining tbe demurrer.

By the Gourb. — Tbe order appealed from is reversed, and tbe cause remanded for further proceedings according to law.

Barnes, J., dissents.