152 N.Y.S. 902 | N.Y. App. Div. | 1915
The plaintiff, landing from a ferry boat in Jersey City, came into collision with the truck team of the defendant so that his legs were injured by the front wheel of the truck. The defendant answered the plaintiff’s complaint for negligence by general denials and by a separate defense of a release. The plaintiff joined issue as to that defense. Although the proof upon that issue presented for the jury a question whether the plaintiff was competent mentally to understand and to appreciate what he was doing when the release was executed (Dixon v. Brooklyn City & Newtown Railroad Co., 100 N. Y. 170; Scully v. Brooklyn Heights Railroad Co., 155 App. Div. 382), the verdict for the plaintiff that necessarily disregarded that instrument is against the weight of evidence.
In Perry v. O'Neil & Co. (78 Ohio St. 200, 225), cited by us in Griffith v. American Bridge Co. (157 App. Div. 264), it is said: “ The release as a defense does not negative the plaintiff’s cause of action, but is a bar to a judgment upon it, and the burden of proof to establish it is upon the defendant; but there is a distinction between the burden of proof and the burden of evidence, or the burden to go forward with the evidence.” After the defendant had made out a .prima facie case as to the execution of the release and had read that instrument in evidence, the plaintiff had to go forward to establish his plea of avoidance, which was his mental incompetency at the time of execution. (Authorities, supra; Jones v. Jones, 137 N. Y. 610; Doheny v. Lacy, 168 id. 220; Staples v. Wellington, 58 Maine, 453; Chicago West. Div. Ry. Co. v. Mills, 91 Ill. 39.)
The accident occurred on October 9, 1913. The plaintiff was taken forthwith to the Jersey City Hospital and remained
There is no doubt that within a few days after October 9th the plaintiff was attacked with delirum tremens so that he became irrational and so violent that for a time he was confined in a cell. He was accustomed to strong drink, and there is cogent evidence that he was under its influence at the time of the accident and when he was received into the hospital. There is nothing, then, abnormal in the development of this attack in a man of such habits, who suffers from such an accident and is put under the restraint of medical treatment. It is upon this irrationality that the plaintiff relies, and the question is whether it existed on the 24th of October. His wife testified that she saw him on the 12th of October, when he assented to her retaining a lawyer, but that thereafter, both then and on the days of her subsequent four calls, he did not seem to understand her, but turned away when she sought to talk with him. Plaintiff’s long-time friend Schneider, who testifies that he called on October 23, further testifies that the plaintiff did not respond to his inquiries, but turned his head aside and muttered to himself. And plaintiff’s sister-in-law, Smith, who testifies that she visited the plaintiff on October 23, further testifies that he made no answer to her inquiries but only muttered to himself. Aside from the proof thus summarized, there but remains the testimony of the experts, which I shall consider later on.
The proof of the defendant is that the irrationality of the delirium tremens ceased on October 16th, and that on that day the plaintiff became and thereafter remained rational. This proof consists of the testimony of the hospital physician, who treated the plaintiff, of the head nurse in charge of the ward of the hospital, of four other nurses, of a physician employed by the defendants to examine the plaintiff, of a fellow-patient, and of the medical charts (read in evidence without objection), giving the patient’s history in detail from day to day, which contained statements of his irrationality and of his
The two physicians called by the plaintiff, who testified to the plaintiff’s irrationality on October 24, were experts who responded to hypothetical questions which included the testimony of the plaintiff and his witnesses to his mental state during his stay in the hospital, but did not embrace any of the testimony of the defendant’s witnesses as to his rationality. One admitted that if he considered the chart entries as correct, he could not testify that the plaintiff was irrational from October 16th on, but he might have been irrational and not have been observed. And the. other witness on cross-examination said that the testimony of the plaintiff that he had no recollec
The release was obtained by Mr. Brockhurst, an attorney at law and a master in chancery of New Jersey. He was the attorney for the defendant in its New Jersey affairs. He testifies that he went to the plaintiff, ascertained that he had no attorney, and talked over a settlement with him. After the plaintiff and he had agreed upon $160 as a settlement, the latter prepared an affidavit, wherein the plaintiff deposed that he had no lawyer, that he desired to settle the case, that he was satisfied with $160, that he had read the release about to be signed and understood it and its effect, that his willingness to settle the case was his knowledge that he had been drinking at the time of the accident, that the driver of the team was not entirely to blame, as deponent was under the influence of liquor and staggered into the horse, which knocked him down; that the driver could not stop his team until the front wheel of the truck struck and broke deponent’s leg, and that he did not blame the driver. Mr. Brockhurst testifies that he prepared the affidavit in the presence of the plaintiff, from data obtained from him; that he read it to the plaintiff, who took it from him, appeared to read it and then signed it and swore to it, and that then he read the release to the plaintiff, who took it and read it and signed it. Mr. Brockhurst then asked the head nurse (Miss Beptic), whom he did not know at the time, to witness it, which she did after Mr. Brockhurst had interrogated the plaintiff in her presence. Thereupon he paid $160 to the plaintiff. Miss Beptic corroborates this witness as to these statements, and says that the plaintiff was perfectly rational, that he took the money, counted it and put it under his pillow, but later in the day, upon her representation that the hospital would not be responsible for it, the plaintiff, who said he wished to give it to his wife, gave it to the witness and she sent it down to the office for safe-keeping. Subsequently the money was given to the plaintiff’s wife by Miss Beptic. Schwemler, a fellow-patient, testifies that after the transaction he asked the plaintiff if he had not been foolish “to
Although the trial court did not err in the submission to the jury of the question raised by the pleading of the release, I think that it could have well set aside the verdict for the same reason that compels us to reverse this judgment, namely, that upon the proof the plaintiff was not entitled to an avoidance of that instrument. I shall not discuss the question of liability, but this omission is not to be taken as favorable to either party. The release was a vital issue, and before the plaintiff could recover he must be freed from its effect. (Blair v. Utica & Mohawk Valley R. Co., 112 App. Div. 609, 612.)
When a case of negligence involves a release it seems that such issue is often disregarded by a jury if it is convinced that the defendant is hable upon the issue of negligence. Such course is an exhibition of sympathy with suffering. And explanation may'be found if the consideration for the release appear to the jury inadequate compensation for the injuries. Very recently we have expressed an opinion of the propriety of an exercise of discretion by the court to order a separate and prior trial of an issue raised by an affirmative defense of a release, in a case of negligence. (Warner v. Star Co., 162 App. Div. 458.)
The judgment and order are reversed and a new trial is granted, costs to abide the event.
Burr, Carr, Stapleton and Putnam, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.