I cannot concur in the majority opinion.
The facts which necessarily must be stated in greater detail for purposes of dissent are as follows: On January 13, 1934, plaintiff's intestate, who was a young man of 32 year, was riding as a passenger in the left rear seat of an automobile owned and operated by one M.A. Scales. The car was traveling in an easterly direction along state trunk highway No. 23 in Stearns county, Minnesota. This highway is paved with concrete, 18 feet wide, and has dirt shoulders two or three feet wide. A black line marks the center of the pavement.
On the same date, on said highway, defendant was proceeding in his automobile in a westerly direction. At a point about one-fourth of a mile west of St. Cloud defendant attempted to pass another car traveling in the same direction. After drawing up ahead of the automobile, he cut in to return to the right side of the pavement. In so doing, his car "slued around" and collided with the Scales car, which was proceeding in the opposite direction at a speed of about 25 miles per hour, stripping off the left side of that vehicle. The Scales car then proceeded for a short distance and rolled over into a ditch along the road. The accident occurred at about 4:30 o'clock in the afternoon.
Honer got out of the overturned automobile. He stood around at the scene of the accident for about an hour and then was taken to a point about four blocks from his house, from where he walked the remaining distance to his home.
Because of the injuries he had incurred, Honer stayed away from his work for one week, when he was advised by his physician that he could return.
A short time later he made a settlement with defendant's insurer of his claim against defendant and signed a release.
Five weeks and three days after the accident, while on his way to work one morning, Honer was taken ill with lobar pneumonia. Five days later he died. *Page 61
The case came to trial on April 12, 1935. The jury returned a verdict for plaintiff in the sum of $1,250. Defendant's motion for judgment notwithstanding the verdict was denied and judgment entered. This is an appeal from the judgment.
Three questions are presented:
(1) Is there sufficient evidence of negligence on the part of the defendant?
(2) Is there sufficient evidence of fraud to justify the setting aside of the release?
(3) Is there sufficient support in the record for the finding that injuries received by intestate in the accident were the proximate cause of his death?
1. Defendant was driving his automobile at a speed of about 35 miles per hour. The pavement was somewhat slippery because of the ice and snow thereon. The testimony shows that defendant attempted to pass another vehicle proceeding in the same direction when the Scales car was only about 100 to 150 feet from the two oncoming automobiles. There is ample evidence that defendant in attempting to pass the other car swung out to the left of the center line suddenly and quickly and then attempted to cut back to the right in the same manner after drawing to the front of the other car. In the words of Mr. Scales, defendant "whipped around the other car." The defendant's car then skidded, and the collision resulted. There is ample evidence in the record from which the jury could find that defendant was negligent and that in operating his automobile he violated 1 Mason Minn. St. 1927, § 2720(13), which provides that a driver of a vehicle shall not turn to the left of the center line of the highway in order to overtake and pass another vehicle unless the left side is clearly visible and is free of oncoming traffic for a sufficient distance to allow him to pass with safety.
2. Nor is there any merit to the contention of the defendant that there is insufficient evidence upon which the jury could base its verdict setting aside the release on the grounds of fraud. Plaintiff's intestate settled his claim for the sum of $32. The insurance *Page 62 adjuster at the time of making the settlement stated to Honer that defendant's insurance had lapsed; that he would have to take his chances on obtaining something from the defendant; that the insurance company had no responsibility but that it would settle for a reasonable amount rather than lose defendant as a customer. These statements were false. Defendant's insurance policy was in full force and effect at the time of the accident and at the time these statements were made.
It is well settled that a release may be avoided for fraudulent misrepresentation of a material fact or circumstance which induces the execution thereof. Petterson v. Butler Bros.123 Minn. 516, 144 N.W. 407; 15 Minn. L.Rev. 805. The misrepresentations here made fall within this category. They were made with the obvious intent and purpose of obtaining a settlement for as small a sum as possible. The jury could well find that they conveyed to the intestate the idea that defendant himself was perhaps not financially responsible. To say that whether or not a defendant's insurance policy is in effect is not a material fact or circumstance where the injured party is not aware of the defendant's financial responsibility would be to blind ourselves to the obvious fact that the amount for which one will settle a claim is markedly affected by the certainty or uncertainty of collection in case of a successful lawsuit. If that were not the fact, it is safe to say that the statements concerned herein would never have been made. Thus it seems clear that they were material, and the jury could well find, considering all the circumstances, that they induced the intestate to accept the low sum he did in settlement of his claim. The point of disagreement between the majority opinion and the dissent is whether the record indicates a causal connection between the injuries received and the intestate's death.
3. The testimony on behalf of plaintiff is as follows: While the deceased stood around at the scene of the accident he complained of an injury to his right shoulder. He appeared to be cold, and his teeth were chattering. He arrived home between 6:00 and 6:30 o'clock in the evening. It was observed that there were two large lumps on the back of his skull. He was pale and was still chilled *Page 63 and cold. He appeared to have pain in his right shoulder and in his chest. He had no appetite. He was in pain during the entire night. The pain continued the next day. He developed a cold accompanied by a "hackling cough." When he coughed it appeared to give him physical pain. These symptoms persisted to a greater or lesser degree during the entire week after the accident.
Honer returned to work one week after the accident. When he returned home in the evenings he appeared to be unusually tired and fagged. During the period he was working before his death he was always in physical pain in his chest and back. He required assistance in putting on and taking off his coat. His appetite was poor. His cough and the accompanying pain persisted during this period. He acted listless and appeared to be failing instead of improving. Further review of the evidence is unnecessary. Suffice to say that it indicates that these conditions continued up until the morning he was taken to a hospital.
Of course there was testimony offered on behalf of the defendant tending to counteract and contradict that introduced by plaintiff; which to believe, in my opinion, was for the jury to decide, and, considering the state of the record, it is not within the province of this court to say that its decision was erroneous.
The same is true of the medical testimony in this case. Dr. Clark, the attending physician, diagnosed intestate's injury as a sprained shoulder. Dr. Kern, Dr. Clark's partner, who examined intestate, diagnosed the case as "a sprained shoulder joint, contused shoulder joint and arm and chest." Both of these men, as well as one other expert, testified that they were of the opinion that the injuries incurred in the accident were in no way the cause of Honer's death. On the other hand, Doctors Goers and Adams, experts called by the plaintiff, stated that in their opinion loss of resistance due to the injuries, shock, and exposure was the proximate cause of death.
On this state of the record, appellant's contention that he is entitled to judgment notwithstanding the verdict is, in my opinion, not well taken. The conflicting testimony created a question of fact which was properly for the jury to determine, and we should not say that it appears as a matter of law that the injuries received *Page 64 did not lower intestate's resistance and thereby cause his death. In the case of Anderson v. Anderson, 188 Minn. 602,248 N.W. 35, 37, this precise question was presented. The court, in speaking of medical testimony in support of the theory that plaintiff's intestate had died as a result of injuries received in an automobile accident, stated [188 Minn. 607]:
"There was other medical testimony corroborating this view. There was medical testimony to the contrary. Whether the injury was the proximate cause of the death was for the jury."
See also Turner v. Minneapolis St. Ry. Co. 140 Minn. 248,167 N.W. 1041.
I have not overlooked defendant's contentions that intestate needlessly stood around the scene of the accident and became chilled, and that on February 20, in the morning, when it was also chilly, he stood around outside on a road while a tire was being changed on an automobile in which he had been riding. Whether these actions were those of a reasonably prudent man and what their effect was on the condition of intestate, considering all the circumstances, such as the fact that Honer appeared to be dazed directly after the accident, and that on both occasions he was warmly dressed, were also questions of fact for the jury, to be determined in light of all of the medical testimony. In my opinion, they are not questions properly before this court for determination.
Defendant was not entitled to judgment notwithstanding the verdict. The judgment should be affirmed.