Austin v. Trotters Corp.

Austin v. Trotters Corp., 815 S.W.2d 951 (Mo. App. S.D. 1991).

Plaintiffs Joy Austin ("Joy"), and Ransford Austin, her husband, filed this action against defendant Trotter's Corporation ("Trotter's"). The petition alleged that on December 18, 1987, Joy was an invitee in defendant Trotter's restaurant in Springfield and sustained a fall as a result of Trotter's negligence. Joy sought damages for personal injuries and losses she sustained as a result of the fall. Ransford sought recovery on his claim for loss of services of his spouse.

While the action was pending on the original petition, the trial court entered its order sustaining Trotter's motion for summary judgment with respect to the claim of Joy. Trotter's motion was based on a release executed by Joy in favor of Trotter's on February 15, 1988.

Thereafter, the plaintiffs filed an amended petition and added these four defendants: Great Central Insurance Company ("Great Central"), GAB Business Services, Inc. ("GAB"), Donald M. Johnson, and Mark P. Lucas. Count III of the amended petition was filed by both plaintiffs and directed against Great Central, GAB, and Johnson. The trial court sustained Great Central's motion to dismiss Count III and a separate motion to dismiss Count III filed by GAB and Johnson. Count IV of the amended petition was filed by Joy against Great Central and Mark Lucas. The trial court sustained Great Central's motion to dismiss Count IV and a separate motion of Mark Lucas to dismiss Count IV for lack of personal jurisdiction.

With respect to its rulings on Counts III and IV, and its sustention of Trotter's motion for summary judgment with respect to Joy, the trial court entered a determination that there was no just reason for delay and designated each of those rulings final for purposes of appeal. Plaintiffs appeal.

Plaintiffs' first point is that the trial court erred in sustaining Trotter's motion for summary judgment with respect to the claim of Joy because there were genuine issues of material facts concerning the release, in that Joy "contested (sic) that the release was not intended to be a full and final release of all claims, was not supported by consideration, and/or was obtained by means of misrepresentation, fraud, and/or mistake."

Trotter's motion for summary judgment, with respect to the claim of Joy, was based on a release. The motion was supported by the affidavit of Donald Johnson, responses of plaintiffs to requests for admissions, the release itself, and the draft issued to Joy for the release.

According to the affidavit of Johnson, based on his personal knowledge as an adjuster for Trotter's insurer, Johnson mailed the release and a "medical proof of loss" to Joy. After retaining the documents in her possession for several days, Joy returned the documents to Johnson. The documents were "signed, witnessed, and notarized." While Joy had the release in her possession, she telephoned Johnson and "inquired as to exactly what the nature of the document was that she was signing." Johnson informed Joy that she was signing a release. Trotter's insurer, Great Central, issued a check to Joy in the amount of $291.49 for medical payments, and issued a check 1 in the amount of $180 to Joy as consideration for the release.

Plaintiffs admitted that Joy signed the release on February 15, 1988, that Joy was paid the sum of $180 by Great Central, and that Joy delivered the release to Johnson.

The release was signed by Joy on February 15, 1988, and witnessed by Mary L. Willard. By its terms, Joy, "for and in consideration of the sum of One Hundred Eighty ($180) Dollars, the receipt and sufficiency of which is hereby acknowledged," released Trotter's from all claims and causes of action arising out of the occurrence of December 18, 1988 (sic) 2 at "Trotter's Restaurant--Springfield, Mo."

In opposition to Trotter's motion for summary judgment, Joy filed an affidavit which, omitting its formal portions, reads: "The release which Trotter's Corporation has raised as a defense in this case is not supported by good and valuable consideration, and this plaintiff denies that any consideration was given for said release. In addition, representations were made by defendant's insurance carrier that the release presented for signature by this plaintiff was not a full and total release of all claims. Therefore, said release was obtained by misrepresentation, fraud or, at least, through mistake."

"Summary judgment is an extreme, drastic remedy and may be employed only where there are no genuine issues of fact and where the moving party is entitled to judgment as a matter of law...." See Zueck v. Oppenheimer Gateway Properties. On review, the appellate court examines the record in the light most favorable to the party against whom a summary judgment was rendered. The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact. A genuine issue of fact exists when there is the slightest doubt about a fact. See Mahurin v. St. Luke's Hosp.

Rule 74.04(e), 3 which deals with the form of affidavits supporting or opposing a motion for summary judgment, reads, in pertinent part:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... When a motion for summary judgment is made and supported as provided in this Rule 74.04, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

An affidavit which fails to aver specific facts and relies only upon mere doubt and speculation fails to raise any issue of material fact. See St. Charles County v. Dardenne Realty Co. Conclusory allegations are not sufficient to raise a question of fact in summary judgment proceedings. See Missouri Ins. Guar. Ass'n v. Wal-Mart. Conclusions of law in affidavits are of no effect. See Stoffel v. Mayfair-Lennox Hotels, Inc.

Joy admitted signing the release and thus she had "the burden of proving its invalidity." See Gast v. Ebert. See Landmark N. Cty. Bank v. Nat. Cable Tr.

"The burden of proving consideration is upon the party relying on the agreement.... That burden is met by the introduction in evidence of the written agreement which recites consideration. 'The recitation of consideration in an agreement is prima facie evidence that consideration to support the agreement was present; it creates a presumption that the recitals are true, which presumption continues unless overcome by evidence to the contrary.' "

Sanger v. Yellow Cab Company, Inc., the court said:

"Releasees do not make settlement and take general releases merely to pay the releasor the first installment on what he should have, leaving the matter open for the releasor to come back for more if his injuries prove serious. On the contrary, a settlement is made and a general release taken for the purpose of foreclosing further claims. The releasee does not stand in a fiduciary relation to the releasor. The injured party is not required to make a settlement, and the general rule of freedom of contract includes the freedom to make a bad bargain."

In Sanger the issue was whether the release was procured by mutual mistake. There was no claim of fraud.

In Higgins v. American Car Co., plaintiff signed a general release for a personal injury claim but testified that the releasee's claim agent said the release "was only a receipt for wages lost." Plaintiff asserted that the release was procured by fraud. In Higgins, the court said:

"The rule is that the one who signs a paper without reading it, if he is able to read and understand, is guilty of such negligence in failing to inform himself of its nature that he cannot be relieved from the obligation contained in the paper thus signed, unless there was something more than mere reliance upon the statements of another as to its contents."

The foregoing language in Higgins was quoted with approval in Sanger.

In Poe v. Illinois Cent. R. Co., the court discussed many Missouri cases dealing with releases which were attacked as having been obtained by fraud. The court said:

"An analysis of the cases reveals that they turn on the nature of the transaction involved, the representations made by the representor, the relation existing between the parties--whether one of trust, or confidence, or friendship, or close acquaintance, or that of strangers dealing at arm's length--or the trick or artifice, if any, employed."

The court said:

"While the law affords every one reasonable protection against fraud, it does not go to the romantic length of establishing the relation of parent and child or guardian and ward between courts and adults capable of managing their affairs, in full possession of their faculties and unrestrained in action, and indemnify them when dealing at arm's length against the consequences of their own indolence, listless inattention, or unwarranted credulity in the transaction of business affairs. Under the authority of the Dryssen [v. Union Electric Light & Power Co.], Higgins, Brennecke [v. Ganahl Lumber Co.], Hannah [v. Butts], and Alford [v. Wabash Ry. Co.] Cases (to the effect, as between parties dealing at arm's length, a representation that a release is merely a receipt is not, standing alone, actionable fraud ) and the Conklin [v. Missouri Pac. R. Co.] Case (to the effect that the courts will not protect those, who with full opportunity to do so, will not protect themselves), supra, defendant's demurrer should have been sustained. The most casual glance at the printed portions of the release or release-draft by one able to read would have disclosed the contract was one of release and settlement; and the case appears to be within the observation Judd v. Walker: 'If one voluntarily shuts his eyes when to open them is to see, such a one is guilty of an act of folly (in dealing at arm's length with another) to his own injury; and the affairs of men could not go on if courts were being called upon to rip up transactions of that sort.' " 4 (Emphasis added.)

Joy's affidavit, quoted above, contains three sentences. The first sentence says, in part, that the release is not supported by good and valuable consideration. That is a legal conclusion which is contrary to the fact contained in Johnson's affidavit, and admitted by Joy, that Joy received $180 for the release. The release itself recited that payment. The second half of the first sentence of Joy's affidavit contains her denial that "any consideration was given for said release." That statement is flatly contradicted by Joy's own admission that she was paid $180.00. If the first sentence of Joy's affidavit were held to be sufficient, she would be profiting by the fact that she herself makes conflicting statements. On this record, the first sentence is a false conclusion.

The second sentence of Joy's affidavit is an example of gamesmanship. It refers to "representations made by defendants' insurance carrier." The speaker or writer of the alleged representations is not identified. An "insurance carrier" speaks only through human beings, and no such person is named. It would be most charitable to construe the second sentence of Joy's affidavit to say "Johnson--or some other specific person--told me that the release was not a full and total release of all claims." Even if that construction is accorded the second sentence of Joy's affidavit, under the circumstances here it is inadequate.

The nine elements of fraudulent misrepresentations are set forth Clark v. Olson. The first two elements are "a representation" and "its falsity." The second sentence of Joy's affidavit does not satisfy those two elements. This release was "not a full and total release of all claims," the statement Joy attributes to the unidentified person, because there was a medical payments provision in the Great Central policy and Joy in fact was paid, separately, $291.49 for medical payments. Indeed, in Count II of the amended petition, which is still pending in the trial court, plaintiffs seek recovery from Great Central under the medical payments provision of its policy. Thus, the representation, and there is only one, alluded to in the second sentence of Joy's affidavit was not false, even if that representation was made. Johnson, of course, denied making it, but that alone is of no moment.

The third sentence of Joy's affidavit is only a legal conclusion. Indeed, by the manner in which Joy phrases it, she expresses a lack of confidence in her claim of fraud because she qualifies her conclusion by saying, "or, at least, through mistake." No facts are stated on which to base a claim of mistake. 5

Plaintiffs' first point merely parrots the language of Joy's affidavit. The same is true of their argument under their first point. Neither the point nor the argument tells this court specifically what issue of material fact existed which would serve to invalidate the trial court's ruling on Trotter's motion for summary judgment.

In Wagoner v. Mountain Savings & Loan Association, a somewhat similar factual situation existed. The trial court sustained defendant's motion for summary judgment based upon the execution of a release and the plaintiffs' affidavits opposing the motion were insufficient. The court said, at 406:

"Summary judgment is the proper procedural instrument to bring to the front of formal pleadings the legal effect of the releases. The very purpose of summary proceedings is to pierce the sham of false generality of claims. The futility of a trial upon primary issues is apparent if the validity of the releases is to be ultimately determinative of the case. And the compulsion of [Federal] Rule 56 cannot be thwarted by the allegation of conclusion or general denial."

This court holds that the trial court did not err in sustaining Trotter's motion for summary judgment. Plaintiffs' first point has no merit.

Plaintiffs' second point is that the trial court erred in sustaining Great Central's motion to dismiss Count III and a separate motion to dismiss Count III filed by GAB and Johnson "because once [Joy's] underlying cause of action for personal injuries was extinguished by the summary judgment, Joy was entitled to prosecute her independent cause of action for fraud in the inducement and/or execution of the subject release."

Count III of the amended petition is prolix. Joy's own description of Count III is that it asserts "a cause of action against Great Central, GAB and Johnson on the theory that the subject release was obtained through fraud." Joy also says that the trial court has, by summary judgment, extinguished her underlying cause of action in tort based upon the release, and that "the enforcement of the release which extinguished her underlying cause of action has given rise to a separate and independent cause of action against Great Central, GAB and Johnson for fraud in the inducement and/or the execution of the release."

In Bockover v. Stemmerman, the court said:

"[W]here a release had been fraudulently obtained, there is no independent cause of action for the fraud practiced in obtaining the release. A release falls within this exception because if the allegation concerning the fraud which induced one to sign the release is true then the release is void both in law and in equity, and in executing the release the party has parted with nothing. The original cause of action remains viable and the release obtained by fraud will not bar that action. Since the underlying cause of action is not extinguished when the release is obtained by fraud, the party giving such release retains his right to recover on the underlying tort as if the release had not been given and therefore suffers no damage as a result of the fraud. For this reason there is no independent cause of action for fraud practiced in obtaining a release."

In making the foregoing statement, the court relied on Mackley v. Allstate Insurance, which in turn relied on Lomax v. Southwest Missouri Electric Ry. Co.

The court, in Mackley, pointed out that some jurisdictions do recognize that the releasor of an unliquidated tort claim may stand on a fraudulently induced release and maintain an action for fraud and deceit for the damages growing out of the fraud practiced upon him by a person other than the releasee.

The court, in Mackley, relied primarily on Lomax and said, at 637, that "Lomax has not been vitiated or overruled by Metropolitan Paving Co. v. Brown-Crummer Inv. Co."

Bockover, Mackley, and Lomax support the trial court's dismissal of Count III. Since there is an independent reason why that dismissal is sound, it is unnecessary for this court to determine if it agrees with the Western District that Lomax was not overruled by Metropolitan Paving Co.

By reason of the trial court's ruling on Trotter's motion for summary judgment, and this court's affirmance of that ruling, the release is valid and untainted by fraud. The issue of whether fraud was practiced by anyone upon Joy in order to obtain execution of the release has now been set at rest. Count III is based upon the allegation that such fraud existed and it has now been determined that fraud did not exist.

In Sunshine Realty v. Killian, this court discussed the doctrine of collateral estoppel, set forth the elements of that doctrine, and pointed out that it precludes the reexamination of previously litigated issues whether those issues are of fact or law. This court also pointed out that the doctrine may properly come into play "on the basis of an adjudication of a portion of one proceeding when that portion has become final prior to the review of other portions of that proceeding."

Count III is bottomed on a theory of fraud. This court's affirmance of the trial court's ruling on Trotter's motion for summary judgment decides the issue of fraud against Joy. It follows that Count III is now barred by collateral estoppel, and plaintiffs were not prejudiced by the order of the trial court dismissing Count III. "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Plaintiffs' second point has no merit.

Plaintiffs' third point is that the trial court erred in sustaining Great Central's motion to dismiss Count IV of the amended petition "on the ground that the cause of action on the insurance policy, as pleaded in Count II of the amended petition, is plaintiffs' exclusive remedy because Supreme Court Rule 55.10 permits a party to plead in the alternative."

Great Central's motion, directed to Count IV, included the ground that Count IV failed to state a claim upon which relief may be granted against Great Central, (the "no claim ground"). The motion was sustained. Plaintiffs' third point makes no mention of the "no claim ground" on which the trial court's ruling on Count III was, at least in part, based.

"The burden is on the appealing parties to demonstrate error." See State, et al., Plaza Prop. v. Kansas City. On appeal, the trial court's judgment is presumed valid, and the burden is on appellants to demonstrate incorrectness of the judgment. See Delaney v. Gibson. A point relied on must state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Rule 84.04(d). Allegations of error not briefed or not properly briefed shall not be considered in any civil appeal. Rule 84.13(a).

If the trial court states no reason for dismissal, the appellate court will assume it acted for reasons offered in the motion to dismiss. Chase Elec. Co. v. Acme Battery Mfg. Co. The appellate court will sustain a judgment of dismissal if any of the grounds for dismissal is proper. See Sullivan v. Pulitzer Broadcasting; and Henry v. Taft Television & Radio Co.

In order for this court to interfere with the trial court's dismissal of Count IV with respect to Great Central, it would have to conduct its own inquiry into the adequacy of Count IV to state a claim for relief. The statement of facts portion of plaintiffs' brief does not set forth any of the allegations of Count IV. The only reference to Count IV is this statement: "Appellant [Joy] sought recovery against [Great Central] on the theory of promissory estoppel."

Plaintiffs' third point has no merit because it fails to address the propriety of the trial court's dismissal on the "no claim ground" and because plaintiffs have failed to sustain their burden of showing that a dismissal on that ground was improper.

Plaintiffs' fourth point is that the trial court erred in sustaining the motion of defendant Mark Lucas to dismiss Count IV for lack of jurisdiction over his person because "a prima facie showing was made by plaintiffs that Lucas made a contract within this state and transacted business within this state and therefore Lucas was subject to the personal jurisdiction of the trial court under Rule 54.06(a)(1) and (2)."

In their argument under this point, plaintiffs state: Count IV alleges that Lucas made a contract in Missouri; Joy spoke with Lucas by telephone and informed him that she needed further medical and hospital treatment; Lucas promised that Great Central would authorize such treatment and would be responsible for the payment of the medical expenses incurred therefor; Joy relied on this promise and incurred medical expenses for said treatment; Lucas was an employee and agent for Great Central and performed his claim services, with respect to plaintiffs' claims, within the scope and course of his employment with Great Central.

In response to this point, Lucas advances two independent grounds in support of the trial court's dismissal. The grounds are: (1) Count IV shows on its face that Lucas cannot be personally liable and therefore no claim was stated against Lucas for which relief can be granted, and (2) there was lack of personal jurisdiction over Lucas.

The soundness of ground (1) makes it unnecessary to consider whether ground (2) is also sound.

"An agent is not liable for lawful acts done within the scope of his authority for and on behalf of a disclosed principal. The liability, if any, is that of the principal. If a contract is made with a known agent acting within the scope of his authority for a disclosed principal, the contract is that of the principal alone and the agent cannot be held liable thereon, unless credit has been given expressly and exclusively to the agent and it appears that it was clearly his intention to assume the obligation as a personal liability and that he has been informed that credit has been extended to him alone."

Missouri cases supporting the foregoing principles include State ex rel. Ranni Assoc. v. Hartenbach; Hunt v. Sanders; Moore v. Seabaugh; and Hamilton Music v. Gordon A. Gundaker Real Est.

Although Lucas's motion to dismiss did not specifically raise ground (1), that ground is properly asserted, even though it is raised initially on appeal. Rule 55.27(g)(2). Plaintiffs filed no reply brief and, perhaps understandably, make no effort to counter ground (1). Plaintiffs' fourth point has no merit.

This court holds that the trial court did not err in granting Trotter's motion for summary judgment with respect to Joy and in dismissing Count III and Count IV of the amended petition. The summary judgment entered in favor of Trotter's Corporation on March 13, 1989, and those portions of the order of November 17, 1980, which dismiss Counts III and IV of the amended petition are affirmed. It is so ordered.

PARRISH, P.J. and SHRUM, J., concur.

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1 The two "checks" were drafts.

2 The fall took place on December 18, 1987. No party mentions the obvious misprint in the release with respect to the year of the occurrence. The correct year is shown on the $180 draft which describes the date of loss as 12-18-87.

3 Except where otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R.

4 In Gast v. Ebert, the court said:

"In their affidavit, plaintiffs state that they were told by the defendant's insurer that the agreement which they signed was merely a receipt for moneys received to cover their daughter's medical bills. The counter-affidavit of insurer's claims representative states that the Gasts were not told that the agreement was merely a receipt for reimbursement of medical expenses. Based on these affidavits, there is a genuine dispute as to whether a representation was made. If the statement was made, and it must be assumed that it was since the record is viewed in the light most favorable to the plaintiffs, the representation was admittedly false because the defendant is attempting to enforce the agreement as a complete and binding release. The representation was clearly material since the plaintiffs' cause of action hinges on whether the document which they signed was a binding release or merely a receipt."

The court, in Gast, made no mention of Poe or the five cases cited in it to the effect that a representation that a release is merely a receipt is not, standing alone, actionable fraud. See also Higgins and Sanger cited above.

In the case at bar, Joy's affidavit makes no reference to a receipt, nor does she state that she was told the release was "merely a receipt."

5 In Bogus v. Birenbaum, the court said:

"The cancellation of a release on the ground of a mistake is ordinarily granted only where the mistake is mutual, but it will be granted where the mistake of one party is either known to the other party or is so obvious that it must have been known to him and the mistake concerns a matter so vital that it could be said that the parties, because of miscalculation or false information, never actually agreed to the same proposition."

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Another important case that combines the issues of personal jurisdiction and fraud is Wyman v. Newhouse, where a woman lied to the other party to induce him to come to Florida in order to have him served with process. See also Tickle v. Barton, where one party lured the defendant into another county so that he could have him served with process. The plaintiff in that unsuccessful suit persuaded the defendant to go to the other county by inviting him to a football banquet.

Huhtala v. Travelers Ins. Co.

Huhtala v. Travelers Ins. Co., 257 N.W.2d 640, 401 Mich. 118 (Mich. 1977).

Plaintiff Bonnie Cummings was injured in an automobile accident. The owner of the automobile in which Cummings was riding as a passenger was insured by defendant Travelers Insurance Company. Three years, two and one-half months after the accident, Cummings and her father, Arne Huhtala, commenced this action against Travelers and George Lynott, a Travelers claims manager, asserting that the defendants had promised the plaintiffs that a full and equitable settlement would be paid after Cummings' physical condition stabilized.

The defendants moved for accelerated judgment on the ground that plaintiffs' claims were barred by the statute of limitations. Plaintiffs responded that the defendants were precluded under the doctrines of promissory and equitable estoppel from asserting the bar of the statute.

The trial judge entered a judgment dismissing plaintiffs' complaint and the Court of Appeals affirmed. We reverse and remand for trial on the claim of promissory estoppel.

I

The automobile accident, in which Cummings sustained injuries requiring surgery, occurred on December 24, 1970. This action was commenced March 13, 1974.

The plaintiffs pleaded that the defendants, representing the owner of the automobile, communicated with them and arranged for Cummings to undergo plastic surgery. The defendants admitted these allegations, and averred that Travelers had paid the medical and hospital bills.

Plaintiffs further alleged, in Count I of their amended complaint, that they were told by Travelers' representatives "that a full and equitable settlement of the present cause would be paid once the Plaintiff, Bonnie Cummings', physical condition stabilized and the Defendant insurance company had had an opportunity to further evaluate the case following the above related plastic surgery"; that the statute of limitations had run; that Travelers had not made payment to the plaintiffs as promised; and that its refusal to make payment "constitutes a breach of express and implied contract based upon the representations made by the Defendants during the course of the negotiations."

Count II repeated all the allegations of Count I, adding that defendants' conduct "constituted a fraudulent misrepresentation." The complaint did not allege that the representations were knowingly false when made or that they were negligently made. Plaintiffs failed to plead with particularity the circumstances constituting fraud, as required by GCR 1963, 112.2, 1 and, although given an opportunity to file an amended complaint, 2 did not in their amended complaint expand on the allegation of fraud. The Court is of the opinion that, on remand, the trial court should not entertain a motion to amend the complaint to enlarge the allegation of fraud, the plaintiffs having failed to avail themselves of the opportunity afforded them to remedy this pleading deficiency.

Defendants' motion for accelerated judgment pursuant to GCR 1963, 116.1(5) raised the question whether plaintiffs' "claim is barred because of statute of limitations," and no question relating to the substantive aspects of plaintiffs' claims. The trial court and the Court of Appeals erred in determining, based on the pleadings, answers to interrogatories, and the arguments of counsel on the motion for accelerated judgment, the substantiality of plaintiffs' pleaded allegations of promissory and equitable estoppel. The substantiality question might have been raised by a motion for summary judgment under GCR 1963, 117.2(3), asserting that "there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law." 3 No such motion was filed; the only question before the trial court was whether plaintiffs' claims were barred by the statute of limitations.

II

This is not an action against the owner or driver of the automobile, but an action against the owner's insurer, Travelers, and one of its claims managers. While plaintiffs' claim of promissory estoppel, in Count I, against Travelers and its claims manager is in respect to the automobile accident, it is not based on that event. Rather it is based on an agreement assertedly entered into subsequent to that event.

Plaintiffs' claim is grounded in the rule of contract law that a promise which the promisor should reasonably expect to induce forbearance by the promisee or a third person and which does induce forbearance, "is binding if injustice can be avoided only by enforcement of the promise." 1 Restatement, Contracts, § 90, p. 110. 4

We are of the opinion that the time for bringing an action for promissory estoppel is governed by the contract statute of limitations, 6 years, and that plaintiffs' action was therefore timely commenced.

The principle governing our disposition was explained Southgate Community School District v. West Side Construction Co., where this Court held that the 3-year statute of limitations governs a consumer's action against a manufacturer to recover damages for injury to property, whether plaintiff's claim is pleaded on a theory of negligence, implied warranty or breach of contract for sale under UCC § 2-725. 5

Southgate had argued that decision was controlled by Weeks v. Slavik Builders, Inc., where the 6-year statute was found to be applicable. This Court responded:

"In Weeks, the cement roofing tiles had been expressly warranted by defendant builder before installation. It was therefore in this contractual context that this Court held that plaintiff Weeks' action was not barred by the three-year statute of limitations.

"As discussed, supra, the consumer's right of action against a remote manufacturer is not dependent on the existence of contract or contract principles; product warranties adhere by implication of the law. Weeks is not controlling. The three-year statute governing actions 'to recover damages for injuries to property' applies to this case." Southgate Community School District v. West Side Construction Co.

An action for personal injury or property damage against an owner or driver of an automobile arises by "implication of the law" and is governed by the 3-year statute of limitations. 6 Plaintiffs' claim of promissory estoppel against Travelers and its claims manager is "dependent on the existence of contract or contract principles" and is governed by the 6-year statute of limitations. 7

III

Where the nature and origin of an action to recover damages for injury to persons or property is a duty imposed by law, this Court has held that it cannot be maintained on a contract theory when commenced beyond the 3-year period. See Coates v. Milner Hotels, Inc.; Baatz v. Smith; and State Mutual Cyclone Insurance Co. v. O & A Electric Cooperative. Those cases do not control where the action is for breach of an express promise.

In Coates, the plaintiff had been assaulted by an intoxicated person while a guest in defendant's hotel. He sought to recover for negligence and breach of an implied warranty to protect a guest against intrusion while in a room. In holding that the 3-year period governed the time for commencement of both the negligence and implied warranty counts, the Court reasoned that whether pleaded as ex contractu or ex delicto the "nature and origin" of the claim was negligence. Although the relationship between the innkeeper and guest was contractual, the source of the innkeeper's obligation was not an express promise but public policy: the law implies a covenant, coextensive with the duty imposed on a negligence theory, that an innkeeper will take appropriate steps to guard a guest against assault.

Baatz, similarly, was an action against an innkeeper for personal injury caused by another person, a former guest of defendant's hotel who exploded dynamite in the hotel. In holding that the 3-year period applied although the action had been commenced in assumpsit, the Court said that it would adhere to Coates which had held that the 3-year period applies to all actions " 'to recover for an injury to the person arising because of negligence whether based upon implied contract or tort.'" See Baatz v. Smith.8

In State Mutual, also, the plaintiffs sought to recover for breach of contract although the defendant electric company was subject to liability "because of negligence." Plaintiffs' subrogors were farmers whose cattle had been electrocuted by a high-voltage power surge. Holding that the 3-year period governed, this Court said that the Legislature had not intended that the courts "distinguish between actions on express contracts to recover damages for injury to person or property and actions based upon implied contract, as called for by the Court of Appeals opinion." State Mutual Cyclone Insurance Co. v. O & A Electric Cooperative.9

In the subsequent case of Weeks v. Slavik Builders, Inc., this Court held that the 6-year period governs an action for breach of an express warranty to install "cement tiles which would measure up, in roofing service, to the warranties made." The Court said that the breach of that warranty was not a damage to property within the meaning of the 3-year statute. 10

Coates, Baatz, State Mutual and Weeks are reconcilable. While there was an express contract in all four cases, the "promise" sought to be enforced in State Mutual (as in Coates and Baatz ) appears to have been implied by law, in contrast with Weeks where the promise was express. 11 The obligation of a public utility to supply electricity at an appropriate voltage (like the obligation of an innkeeper to protect his guests against assault) does not depend on the agreement of the parties but arises as a matter of law independent of the terms of their agreement.

In Parish v. B. F. Goodrich Co., the issue was not which of several limitation periods provided by Michigan statutes applies but whether the Michigan borrowing statute made applicable the periods of limitation of another state. 12

While the relationship of the parties in Coates, Baatz and State Mutual was contractual express contract the nature and origin of the claim sought to be enforced in those cases was not an express promise. The relationship of the supplier of services with the consumer, although contractual in inception, gave rise to a duty imposed by law on the supplier, apart from the terms of their agreement, to take reasonable safeguards to protect the consumer. Here, however, the nature and origin of plaintiffs' claim for promissory estoppel is an express promise and not a duty imposed by law.

IV

In the instant case, the law imposed on Travelers no duty in favor of the plaintiffs to pay or to promise to pay a fair settlement. If such an obligation arose, it is because Travelers chose to promise to do so. While plaintiffs had a personal injury claim against the owner of the automobile in which Cummings was riding and that claim arose by reason of a duty imposed by law, Travelers had no obligation to the plaintiffs as a result of any duty imposed by law. Plaintiffs' sole claim against Travelers has been and is contractual.

The nature and origin of this action against the owner's insurer and its claims manager is not the same as the nature and origin of an action against an owner or driver of another automobile.

The liability of the owner and driver is imposed by law and is non-consensual; the liability of the insurer and its claims manager is based on an express promise and is consensual.

Plaintiffs need not show, in this action against the insurer and its claims manager, that the owner or driver of the automobile was subject to liability because of the driver's causal negligence and Cummings' freedom from contributory negligence, but must show a promise to pay.

Plaintiffs may not recover the full money equivalent of their losses, but only the amount defendants assertedly promised to pay.

Plaintiffs' claim against Travelers and its claims manager did not accrue at the time of the automobile accident but at the time of the asserted breach of contract.

The plaintiffs' negligence claim against the owner-driver of the automobile and their promissory estoppel claim against the owner's insurer and its claims agent are different claims. This contrasts with a consumer's claim against a manufacturer, dealt with in Southgate, which is but a single, unitary claim, however many legal theories may have been invoked to explain or develop that claim. 13

An insurer's promise to pay an owner-driver whatever amount, within policy limits, is determined to be the owner-driver's legal liability to an injured person, and an insurer's promise to pay an injured person a definite amount or an amount determinable under a reasonably definite standard 14 are different promises, giving rise to different claims. The former claim is derivative, and the injured person's right of action against the insurer is dependent on successful maintenance of his claim against the owner-driver. The latter claim is not derivative in that the injured person's right of action against the insurer is not dependent on successful maintenance of its claim against the owner-driver.

While plaintiff's claim is in respect to Cummings' injury, this action is not to "recover damages for injuries to persons or property" but, rather, to recover damages "for breach of contract" to pay a full and equitable settlement and is, therefore, governed by the 6-year, not the 3-year, statute of limitations.

V

Both parties briefed, and the trial court and the Court of Appeals considered the authorities concerning the doctrine of equitable estoppel. 15

Equitable estoppel is essentially a doctrine of waiver. When operative, it serves to extend the applicable statute of limitations by precluding the defendant from raising the bar of the statute but has no effect on the determination of the applicable statute. Promissory estoppel, in contrast with equitable estoppel, 16 does not establish waiver but, rather, substitutes for consideration in a case where there are no mutual promises, enabling the promisee to assert a separate claim against the promissor, independent of any other claim he may have against the promissor (e. g., subrogation or misrepresentation) or another person (e. g., negligence) and, therefore, makes applicable the statute of limitations governing the time for bringing an action for breach of contract.

Plaintiffs' claim of promissory estoppel against Travelers and its claims manager does not depend on the doctrine of equitable estoppel, and, therefore, whether or not they can establish the elements of equitable estoppel, they may be able to recover on the ground of promissory estoppel.

We do not wish to be understood as indicating any view on the merits of plaintiffs' claim. We hold only that Count I of the complaint states a claim of promissory estoppel, albeit somewhat inartfully, and that the 6-year statute of limitations governs the time for commencing an action stating such a claim.

Reversed and remanded for trial on the claim of promissory estoppel.

KAVANAGH, C. J., and WILLIAMS, FITZGERALD and MOODY, JJ., concur.

COLEMAN, Justice (To Reverse).

This action, grounded in a personal injury claim, is governed by a 3 year statute of limitations. Our colleagues said that plaintiffs' complaint "states a claim of promissory estoppel, albeit somewhat inartfully" and thereby transforms a tort into a contract action governed by a 6 year statute of limitations. The complaint, if inartful, was so much so that no one plaintiff, defendant, trial judge or Court of Appeals judges knew that such a theory was involved here. To the contrary, plaintiffs admit the 3 year statute of limitations applies. However, we would reverse the Court of Appeals and remand to the circuit court to allow plaintiffs to demonstrate through proper evidence, if they can, that the equity of their case should prevent the statute's application.

I

Bonnie Cummings was injured in an automobile accident on December 24, 1970. In a complaint filed March 13, 1974, she claimed to have suffered head injuries, permanent scarring, "nervous and emotional sequelae," "an aggravation of preexisting conditions of ill being," and "pain, agony and distress, past, present and future". In the same complaint her father, Arne Huhtala, claimed to have "incurred special damages" such as "personal property damage, travel, physicians and surgeons" and the like.

Plaintiffs claim in Count I of the complaint that George Lynott, an agent for Travelers Insurance, "made representations to the plaintiffs (that) all of their damages would be fairly and justly compensated". They said Travelers "always represented that a fair and just settlement would be paid" after Bonnie Cumming's condition "had stabilized" and "assessment of the value of (the) case could be made by said insurance company and its representatives". They said Travelers "failed, refused and neglected to make payment to the plaintiffs as promised". This refusal "constitutes a breach of express and implied contract".

However, plaintiffs admitted that "the statute of limitations ran in this cause".

Defendants moved for accelerated or summary judgment, saying the statute of limitations barred the action. Noting plaintiffs' claim of an express or implied contract, defendants said the Michigan rule "is that actions which are seeking to recover for injuries to persons or property are governed by the three year statute of limitations irrespective of how the plaintiff proceeds to such recovery".

After giving plaintiffs 20 days in which to amend the pleadings, which was done, the trial court dismissed the case and the Court of Appeals affirmed.

II

Defendants (and plaintiffs) were right concerning the 3 year statute of limitations. In Parish v. B. F. Goodrich Co., we said the Court "has consistently held that the three-year limitational period applicable to" claims such as plaintiffs' "applies without regard to whether the claim sounds in tort or contract, express or implied". 1

Defendant cited the three cases from which Parish drew its conclusion. In Coates v. Milner Hotels, Inc., the plaintiff was assaulted in her room by an intruder. One of her theories for recovery was breach of an implied contract. The Court had to decide if "an action to recover damages for personal injuries upon an implied contract theory (is) subject to the three-year limitation". It found "the better rule to be that actions for personal injuries, resulting from negligence although arising out of a breach of implied contract, are controlled by the statutory limitation of actions upon damages for injuries to the person".

The plaintiff Baatz v. Smith argued that the three year limit "applies only to actions sounding in tort but not to those brought in assumpsit even though based on tortious acts which are claimed to constitute, as well, a breach of contract". Citing Coates the Court said, "whether brought in tort or assumpsit, these are actions to recover damages for injuries to person". The 3 year limit applied.

This Court reversed the Court of Appeals in State Mutual Cyclone Insurance Co. v. O & A Electric Cooperative, wherein plaintiff sought recovery for property damage covered by breach of an express contract. The Court of Appeals said the 3 year limit applies "where an action is brought to recover damages for injury to person or property on a claim arising out of a tort or an implied contract". However, it continued, if the action "is brought on an express contract the 6 year statute applies, even though damages are sought for injuries to person or property".

In reversing, the Court noted that the Court of Appeals "did not cite a single Michigan case, or a case from any other jurisdiction . . . and its decision is contra to the great majority rule in the United States". The Court said Baatz means "that it makes no difference what form of action the plaintiff institutes in seeking recovery for damages to property or person, but in all cases such action comes within the 3-year limitation rule".

III

The complaint in our case is based on personal injuries caused by allegedly tortious conduct. Labels do not change this nor does the fact that plaintiffs are suing the driver's insurance company. Our colleagues' use of a promissory estoppel theory to find that this action "is governed by the contract statute of limitations, 6 years" is contrary to precedent as discussed above. The application of "promissory estoppel" in the transformed context proposed in my brothers' opinion might be appropriate in an action concerned with contract damage instead of personal and property injuries. 2 There the 6 year limitation would apply in any event and the issue would be only the tolling of the statute.

However, that is not our case. Here, it is acknowledged that the action originates from tort and the only question is whether the 3 year limitation is tolled.

The 6 year theory is even contrary to what plaintiffs sought in the courts below. After defendants' presentation on the motion for summary accelerated judgment, plaintiffs said "as far as the law goes, we agree, and of course we state this in our complaint, that the statute of limitations did run, but we rely upon the doctrine of promissory estoppel in this case". However, plaintiffs explained "sometimes (the doctrine is) called equitable estoppel and sometimes promissory estoppel". The trial court also referred to plaintiffs' "theory of promissory or equitable estoppel". Counsel and court used the terms interchangeably. Now, some of this Court assert that by the same names we can at this level create a different rose. We would not retry plaintiffs' case.

When the court granted defendants' motion to dismiss, it said plaintiffs' position was that "under the theory of equitable estoppel the statute of limitations did not run since defendants were estopped through their conduct". If plaintiffs are "to have available the doctrine of equitable estoppel" they need to show that "misrepresentations were made," they "relied on such misrepresentations" and "as a result thereof the statute of limitations ran".

Plaintiffs did not object to the court's characterization of their theory. They did file an amended complaint within the 20 days assigned. Their attorney suggested in oral argument that the case go to trial and "if the court is satisfied or believes there is no basis for a cause of action on the equitable estoppel theory that it would grant the defendants' motion for a directed verdict". The court instead granted defendants' motion to dismiss.

In Renackowsky v. Board of Water Commissioners, the Court remanded the case to permit plaintiff an opportunity to show "that, before the time fixed by statute for the bar, the defendant, by its course of conduct, led the plaintiff to believe that a suit to enforce his rights would be unnecessary, and thereby lulled him into a feeling of security". Klass v. Detroit noted that estoppel "seems to be limited to cases involving an intentional or negligent deception". Klass indicates that the defendant may raise the statute of limitations "unless it can be fairly said" that plaintiffs were induced to postpone action "upon some reasonably well grounded belief" that the claim would be adjusted if they did not sue. 3

We believe plaintiffs should have an opportunity to present their case. The question of whether equitable estoppel applies cannot be fairly answered solely on the bases of these pleadings and interrogatories. 4 There are problems here which require more detail. For example, what did defendant precisely promise, was plaintiffs' reliance reasonable, was plaintiffs' 2 year wait after surgery reasonable, should plaintiffs or defendants have taken additional steps? It is plaintiff's obligation to demonstrate that equitable estoppel should apply. We reverse and remand to the trial court to give them the opportunity.

RYAN, J., concurs.
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1 "Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."

2 See GCR 1963, 115.1, Motion to Correct or Strike Pleadings:

".1 Motion for More Definite Statement. If a pleading is so vague or ambiguous that it fails to comply with the requirements of the rules, the opposite party may move for a more definite statement before filing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such other order as it deems just."

3 The disputed questions of fact regarding equitable estoppel to raise the defense of statute of limitations might have been resolved pursuant to the GCR 1963, 116.1(5) motion if the court had, as provided in GCR 1963, 116.3, ordered an immediate trial of the disputed issue.

4 "A promise which the promissor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." 1 Restatement, Contracts, § 90, p. 110.

Similarly, see Restatement 2d, Contracts (Tentative Draft No. 2, 1965), § 90, p. 165; Calamari & Perillo, Contracts, § 99, p. 172; 1 Williston on Contracts, § 140, p. 607; 1A Corbin on Contracts, § 193, p. 187, et seq.

5 M.C.L.A. § 440.2725; M.S.A. § 19.2725.

6 "No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property."

7 "No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

"(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.”

8 The statement in the Committee Comment accompanying the Revised Judicature Act that the section of the Revised Judicature Act establishing the time periods for bringing an action to recover damages for injuries to persons or property "is a compilation of the limitations on the general tort remedies," indicates a legislative purpose to establish the time periods for actions sounding in tort.

9 The Court of Appeals, distinguishing Coates v. Milner Hotels, Inc.; and Baatz v. Smith, on the ground that no express contract was there asserted, and reasoning that "a party injured by the breach of an express contract when the breach involves negligence may waive his contract action and sue in tort or waive the tort and sue on contract," concluded that the 6-year statute of limitations applied. See State Mutual Cyclone Insurance Co. v. O & A Electric Cooperative.

10 In Striker v. Martindale, the Court held that the 3-year period, applicable to "all other actions" to recover damages for injury to persons or property rather than the 2-year period for actions charging assault, governed the time for bringing an action for personal injury sustained in a hunting accident where the declaration contained allegations of negligence (governed by the 3-year provision) and of assault and battery (governed by the 2-year provision):

"In determining whether the statute has run on plaintiff's cause of action he is entitled to the benefit of the allegations of a cause of action, if any, against which the statute has not run."

11 While the Court of Appeals in Weeks had ruled that a builder impliedly warrants the fitness of construction, on the further appeal to this Court that aspect of the case was not addressed. Although the obligation of innkeepers and public utilities to provide adequate safeguards for the protection of the public has long been imposed by law, it is only recently that courts have recognized that a builder may, apart from agreement, be subject to liability for defects in construction. The nature and origin of the claim enforced by this Court in Weeks was an express promise and not a preceding obligation imposed by law.

12 In Parish v. B. F. Goodrich Co., there was no contractual relationship between the plaintiff and the defendant the plaintiff was a consumer and the defendant a manufacturer and, hence, no issue arose regarding the applicable limitation where plaintiff's claim is assertedly based on contract.
In concluding that the product liability claim of a consumer against a manufacturer accrued, for purposes of the borrowing statute, when and where damages are suffered, this Court declared that UCC 2-725 "did not create a new and separate consumer's product liability claim against the manufacturer," distinguishable or different from the claim of the consumer against the manufacturer on a theory of negligence or implied warranty. The observation, on the authority of State Mutual Cyclone Insurance Co. v. O & A Electric Cooperative, supra, that the Court had consistently held that the 3-year period "applies without regard to whether the claim sounds in tort or contract, express or implied," Id., was not necessary to decision and overlooked Weeks v. Slavik Builders, Inc., supra, where the Court had held that the 6-year statute applies to an action for breach of an express warranty.
In contrast with the consumer's product liability right of direct action against the manufacturer, the nature and origin of which was duty imposed by law (negligence, misrepresentation, strict liability in tort, implied warranty) and which did not depend on the existence of any contractual relationship between the consumer and the manufacturer, the claim enforced in Weeks was not based on a duty imposed by law, dubbed implied warranty, but was based, rather, on the builder's express promise to guard against the risk of loss alleged to have occurred.

13 See Cova v. Harley Davidson Motor Co.; Parish v. B. F. Goodrich Co., supra.

14 The parties have not briefed or argued the enforceability of an agreement to pay a "full and equitable settlement" and therefore we have not considered that possible question. See 1 Corbin on Contracts, § 99, pp. 444-445; 1 Williston on Contracts (3d ed), § 41, pp. 129-135.

15 See, e. g., Renackowsky v. Board of Water Commissioners of Detroit; Klass v. Detroit; and Yarger v. Hastings.

16 The distinction between promissory and equitable estoppel is discussed in Dobbs on Remedies, § 2.3, pp. 42-43:

"There are, of course, estoppels having promissory elements. Some of these qualify as promissory estoppel cases in the sense that detrimental reliance on one side will suffice as 'consideration.' In other instances, the promissory elements may be more attenuated, and may not involve any substitute for consideration or any contract at all. The insurance adjuster who negotiates with the plaintiff for a settlement may 'lull' a plaintiff into a false sense of security so that he fails to file suit before the statute of limitations has run, and this may work as an estoppel against the insurance company. Such a case involves a promissory element in the limited sense that the adjuster's conduct does not operate to mislead about a present fact; it operates to mislead about future intended conduct, specifically it operates to make the plaintiff believe that the insurer will not raise the statute of limitations defense. But lulling is not necessarily promising, and even if the insurance company has made no enforceable promise, it may be estopped in such a case."

17 See Borman's v. Lake State Development Co., saying the "vehicle of recovery (contract, tort, fraud, e. g.) is not determinative". In such cases, the "crucial" question "is whether or not the plaintiff was seeking damages for injury to property or person in which case the three year statute applies". See also Harrington v. Nelson; Smith v. Gilles; and Fries v. Holland Hitch Co.

18 See Southgate Community School District v. West Side Construction Co.

19 See also Yarger v. Hastings; and DiGiovanni v. Yacenick.

20 Count II of plaintiffs' amended complaint charges fraudulent misrepresentation, but offers no facts in support, nor were such offered in oral presentations. We find no merit in the charge and will discuss it no further.

Edgin v. Talley

Edgin v. Talley, 276 S.W. 591, 169 Ark. 862 (Ark. 1925).

Actions by George Edgin and by Goldia Floyd, minors, by next friend, against Claud Talley and another. Judgment for defendants and plaintiffs appeal. Affirmed as to plaintiff Edgin, and reversed and remanded as to plaintiff Floyd.

George Edgin and Goldia Floyd, minors, by next friend, instituted separate actions at law against Claud Talley and C. G. Harman to recover damages for an assault.

George Edgin was a witness for himself. According to his testimony he was 20 years of age, and had lived at Ozark, Franklin county, Ark., nearly all of his life. On the Sunday in question he had driven in his automobile from Altus to Ozark with Goldia Floyd and some other companions for the purpose of attending a singing convention. After attending the singing convention at the courthouse, they drove on up town to a filling station at a moderate rate of speed, something like 8 or 10 miles an hour. George Edgin heard some one call for some one to stop, but did not pay any attention to it. There was a large number of people on the public square, and he was not impressed that any one was calling to him. The first he knew a bullet came through the car, hitting the windshield, and it commenced falling out. The bullet went between George Edgin and Goldia Floyd. Two shots were fired, but just one of them went through the car. The witness then immediately stopped the car, but did not know who did the shooting until Claud Talley came down to the car. Talley then arrested the witness and carried him to jail. He refused to let him make bond, but locked him up in the jail and kept him there something over an hour. No warrant of any kind was served on the witness. No charge was afterwards preferred against him. The witness offered no resistance whatever, and was not undertaking to assault or injure Talley in any way at the time. He knew that Talley was an officer, but did not know that he or any other officer wanted him for any purpose. Other witnesses testified in behalf of appellant George Edgin and corroborated his testimony. George Edgin testified that he was not drinking or drunk at the time he was arrested and several witnesses corroborated his testimony in this respect.

Goldia Floyd was a witness for herself. According to her testimony, she was 17 years of age, and lived at Dyer, Ark. She was in Ozark on the Sunday in question, and was riding on the same seat in the car with George Edgin. She did not hear anyone say, "Stop!" or anything of that kind. There were two shots fired. One of the shots went through the car, and the bullet went through her hair on the left side and burned it. The bullet also struck the windshield and broke the glass in it. The glass from the windshield struck her and caused an injury to her leg. She was confined to her bed about two weeks as the result of her injuries, and it was a month before she was able to take up her studies at school. She was rendered very nervous by her injuries, and this condition continued about two weeks. The physician who attended her described her injuries. He found one place just above her knee pretty badly cut and one cut below her knee. She was very nervous, and her nervous shock was caused from some injury.

According to the testimony of Claud Talley, one of the defendants, he lived in Ozark and had been deputy sheriff and jailer of Franklin county for 38 months before the Sunday in question. He was still deputy sheriff at that time, and as such received information that George Edgin and others were drunk on the public road towards Altus. Shortly after this information was received, Talley saw George Edgin driving a car along the streets of Ozark. He said, "Hold on, George; I want to see you." He then called to Fred Wilson to have George stop the car. Fred put his head in the car and said something to George. Talley then called to George Edgin again to stop, and upon his failing to do so, he fired his pistol at the casing on the car. He fired two shots at the car, and the next thing he heard was a woman screaming, and then the car stopped. C. G. Harman, the sheriff, was there taking George Edgin out of the car when he reached him. There were two girls in the car, but he did not know it until after he fired the two shots. The sheriff turned George Edgin over to Talley, who took him to jail and kept him there for a while. Talley did not shoot at Edgin, but shot at the tires of the car to cause him to stop it. The bullet that went through the car struck something first. The purpose and intention of Talley in firing the shots was to disable the car and cause it to stop. Other witnesses corroborated Talley in his testimony both as to the shooting and as to the drunkenness of George Edgin.

According to the testimony of C. G. Harman, he had been sheriff of Franklin county for three years at the time of the shooting. Just previous to the shooting Talley and Harman had been down on the river looking for some law violators. Harman received information that George Edgin and others were drunk and were likely to hurt some one. When Harman got back to Ozark, and just after he separated from Talley, he heard some one say, "Halt!" or "Stop!" He heard this two or three times, and then heard a gun shoot. When he looked around he saw someone coming down the street in a car, and ran out in front of it. Just about that time he heard the second shot. Then he heard some girl scream, and ran to the car and jerked its door open. By that time a crowd had gathered, and Talley walked up to the car. Harman put George Edgin under arrest for drunkenness, and directed Talley to carry him to jail, and when he was sober enough to turn him out.

On cross-examination Harman testified that he guessed that he directed Talley to arrest Edgin if he came to town on the day in question. George Edgin was drunk at the time he was arrested, and was not able to take care of himself. Talley was directed to take George Edgin home as soon as he was sober enough. Harman, also, stated that he never directed his deputies to shoot at anything except the casings of a car to stop it.

The cases were consolidated for the purpose of trial, and in each case the jury returned a verdict in favor of appellees. The case is here on appeal.

In the case of Thomas v. Kinkead, Judge Mansfield made a thorough examination of the principles of law governing cases of this sort in an action wherein a constable was sued for damages for the unjustifiable shooting and killing by his deputy of a person charged with the commission of a misdemeanor to prevent his escape after being arrested. The court reversed a verdict for the defendant because of the charge of the trial court that the defendant had a right to shoot deceased if it was necessary to prevent his escape. It was said that the force which an officer may lawfully use to prevent the escape of one arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. The officer cannot in either case take the life of the accused or inflict great bodily harm except to save his own life or prevent a like injury to himself. The learned justice concluded his review of the authorities and a statement of the rule of the common law as follows:

"We can see no principle of reason or justice on which such a distinction can rest, and we therefore hold that the force or violence which an officer may lawfully use to prevent the escape of a person arrested for a misdemeanor is no greater than such as might have been rightfully employed to affect his arrest. In making the arrest or preventing the escape, the officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself."

The general rule is that for all civil purposes the acts of a deputy sheriff or constable are those of his principal. Hence a sheriff or constable is liable for the act, default, tort, or other misconduct done or committed by his deputy, colore officii. See Moores v. Winter; and Frizzell v. Duffer.

It will be noted that this rule was recognized and followed Thomas v. Kinkead, although the rule itself was not announced or commented on. Again, in State v. Newton, the court held that the state treasurer and his bondsmen are liable for the official conduct of his deputies. Then, too, section 9152 of Crawford & Moses' Digest provides that each sheriff may appoint one or more deputies, for whose official conduct he shall be responsible. Thus it will be seen that a sheriff is liable, both under the common law and under our statute, for an unlawful assault made by his deputy while in the discharge of his official duty. Under our statute, it is made a misdemeanor to drive any automobile over any of the streets of any city or town or any public highway in the state while in an intoxicated condition.

Section 2904 of Crawford & Moses' Digest provides that a peace officer may make arrests without a warrant where a public offense is committed in his presence.

In Com. v. Presby, it was held that reasonable cause to believe a person to be intoxicated is sufficient to excuse an arrest without a warrant. In discussing the principle Ballard v. State, the court said that good faith, an honest belief, based upon reliable information, which proves to be true, is all the law requires. In that case the person was arrested for carrying concealed weapons. Thus it will be seen that a misdemeanor must have been actually committed to justify an arrest without a warrant, and the officer must determine at his peril whether an offense has been committed or not.

It was the theory of the appellant, George Edgin, that he was not drunk at the time he was arrested, and evidence was introduced by him to that effect. On the other hand, appellees testified that they had been informed that he was drunk and likely to hurt some one, and that they arrested him on this account. The deputy sheriff denied that he fired at Edgin, and says that the pistol shots were fired by him only to intimidate and cause George Edgin to surrender, who, he had been informed, was driving an automobile in a drunken condition on the public highway. The pistol shots were not fired at George Edgin, and neither of them struck him or caused him any physical injury.

If the jury believed the testimony of the deputy sheriff (and by its verdict it has so found) that the shots fired by him were only to accomplish the arrest of George Edgin, it cannot in law be considered an assault and battery for which the officer can be punished. See Mesmer v. Commonwealth. The deputy sheriff having been informed that George Edgin was driving an automobile in a drunken condition along the highway, had the right under the law to arrest him.

The jury was fully and fairly instructed in accordance with the principles of law above announced, and the respective theories of appellant George Edgin and appellees were submitted to the jury in appropriate instructions. The jury having by its verdict found the facts in favor of appellees, appellant George Edgin is in no attitude to complain. It cannot be said that he is entitled to recover for the injury to his automobile as the result of the shots fired by the deputy sheriff. Although he might have believed that he was being illegally arrested, it was his duty to have submitted to the officers. See Coats v. State.

George Edgin lived in Ozark and knew that Talley was a deputy sheriff. It is true that he says that he did not hear Talley order him to stop; but here again the evidence is conflicting, and the jury under proper instructions found in favor of appellees on this point. According to the testimony of the deputy sheriff, Edgin must have known that he was being ordered by him to stop. Talley says that he called to him to stop several times, and that one of the persons in the car leaned over and whispered something to George Edgin. Other people further away from Talley than Edgin and his companions heard Talley call to them to stop. Hence the jury might have inferred that Edgin heard Talley tell him to stop, and that he drove on, knowing Talley to be an officer, for the purpose of escaping arrest.

The jury might have, also, found that George Edgin was drunk at the time. According to the testimony of Talley he did not shoot at Edgin, but only shot for the purpose of stopping his car so that he might arrest him for being drunk in violation of law. Under these circumstances there would be no civil liability on the part of appellees for the injury done to the automobile of George Edgin.

Again it is insisted by counsel for appellant George Edgin that the judgment should be reversed because the court allowed Mrs. Harman, the wife of the sheriff, to state that she had received word at the jail that George Edgin was drunk and might kill some one, and that she communicated this statement to her husband and Talley. According to the testimony of both Harman and Talley they intended to arrest George Edgin because of receiving this information. The important fact was that they had received the information from an authentic source, and the fact that the wife of one of the appellees was the source of information cuts no figure in the case at all. The case stands in no different attitude than it would if Harman and Talley had stated that they had received information from a reliable source that George Edgin was driving an automobile along the public highway in a drunken condition. Therefore we hold that this assignment of error was not well taken.

The result of our views is that no prejudicial error was committed by the court in the trial of the case of George Edgin, and the judgment in his case must therefore be affirmed.

The case of Goldia Floyd, however, stands on a different footing. The evidence discloses that one of the pistol shots went through her hair and burned it. The bullet then passed through the windshield of the automobile, breaking it, and thereby causing the glass to violently strike her leg and cut it. She was compelled to remain in bed for two weeks as the result of her injuries, and it was a month before she had sufficiently recovered from her injuries to attend school. The undisputed evidence shows that she received severe physical injuries as a result of a pistol shot at the hands of Talley, and under the principles of law above announced, his firing the pistol under the circumstances and thereby injuring Goldia Floyd in her person was a reckless and careless act which rendered him and his principal civilly liable in damages.

The duty of Talley to arrest George Edgin for driving an automobile along the streets while drunk, which was a misdemeanor, did not justify the use of firearms, and firing his pistol under the circumstances as shown by his own testimony rendered him liable for the physical injury to Goldia Floyd. While Talley had the right to carry loaded firearms in the discharge of his official duties, he had no right to use them in a negligent and careless manner, and he is liable for the unjustifiable discharge of his pistol to check the flight of George Edgin, who had only committed a misdemeanor. The undisputed evidence shows that Edgin was at most only attempting to escape, and Talley was not justified in shooting at him even as a ruse to prevent his further flight.

It follows that the judgment against Goldia Floyd will be reversed, and the cause will be remanded for a new trial.

WOOD, J., dissents on the ground that in his opinion the judgment should be affirmed as against Goldia Floyd also.

See Kennedy v. Parrott for an example of a case involving battery in the context of patient consent to surgical procedures. See also Ward v. Blackwood; and Elliot v. Porter for other cases involving the tort of battery.

Battery

The common law tort of battery is an intentional contact that is harmful or offensive, made to the plaintiff’s person or to some logical extension of the plaintiff’s person, without consent or other privilege. It differs from the common law crime of battery. The tort of battery requires an actual contact. An assault on the other hand is to put someone in the apprehension of a harmful or offensive contact. Either assault or battery or both may be present in a given act depending on the circumstances.

In the case of Elliot v. Porter, the court held that it knew of no authority for deciding that, in a case in which several persons were found guilty of taking the same thing from the same owner, that a judgment in detinue against any one of them should bar a suit against another of them, either for the detention or the for the conversion of that same thing. The court held that a judgment against one of those who are severally and jointly liable by contract, or for assault and battery, would not extinguish the same plaintiff's legal cause of action against any one of the others whom he might have sued. Therefore there can be no reason for making a judgment in detinue a bar to another action of detinue or trover against another defendant for the same cause of action for the taking of the same property from the same owner.

In Re Del Rio was a case wherein a bail bondsman was accused of committing a battery. Mr. Goldfarb was a licensed bail bondsman with a firm having offices one block from Recorder’s Court. He was charged in a complaint with assault and battery and he was arraigned and demanded a jury trial before Judge Kadela. Judge Kadela was absent from Court for approximately three weeks when Judge Del Rio was on his way to work and saw the assistant prosecuting attorney assigned to Judge Kadela’s court. Judge Del Rio advised him that the Goldfarb case would be tried within a few days and that he should have his witnesses present.

Kirby v. Foster is an example of a situation in which a person used physical force to recover property. The general rule is that physical force cannot be used merely to recover property if there is no threat of violence. In that case a bookkeeper had been suspected of stealing money or was otherwise deemed responsible for its loss. The amount was deducted from his pay. When he went to distribute salaries he withheld the amount that had been deducted from his own salary, on the advice of his lawyer. In that case the defendant was liable to the plaintiff for battery.

If a defendant is found to have caused a battery, he is responsible for all of the damages caused. In one important case, Vosburg v. Putney, one school boy gave another school boy a light kick below the knee. The kick exacerbated an earlier injury and eventually the plaintiff suffered serious injuries. In that case the defendant was liable because the defendant is liable for all damages, whether or not they were foreseeable.

The case Ward v. Blackwood involved a battery committed against a prison warden. Massey was the victim of the battery and the original plaintiff. Massey died before the suit was resolved and his administrator Ward continued the suit. Massey had negligently fallen asleep while on duty and permitted several convicts to escape. Blackwood beat him when he discovered that the convicts were missing.

Ward v. Blackwood

Ward v. Blackwood, 3 S.W. 624 (Ark. 1887).

This action was brought by Massey, in his life-time, against Ward, for damages caused by an assault and battery committed upon him by Ward on the twenty-fifth of August, 1880. Massey having died since its commencement, it was revived in the name of Blackwood, as his administrator. Ward answered, and alleged that, at the time the assault and battery was committed, he was the lessee and keeper of the Arkansas penitentiary; that on the day of the trespass complained of Massey was one of the prison guards in charge of a large number of convicts, engaged at work at Argenta; that some time in the morning Massey negligently went to sleep, and suffered several of the most desperate convicts to escape; that, in the confusion produced by this escape, he went into the yard where Massey was, and struck him two or three times with a piece of thin scantling; that he was damaged to the extent of $1,500 by reason of the loss of valuable dogs, and of the labor of the escaped convicts, caused by Massey's negligence. He asked for judgment against plaintiff for the amount of his damages.

There was evidence introduced in the trial of the action tending to prove, among other things, the following state of facts: On the twenty-fifth of August, 1880, Ward was the lessee and keeper of the Arkansas penitentiary, and Massey was in his employment as a guard over a large number of convicts at work in Ward's brick-yard, opposite the city of Little Rock. Three of these convicts forcibly disarmed Massey while on guard, and made their escape. Ward was not in the brick-yard at the time, but came up soon after, and, seeing Massey standing guard with a piece of plank in his hand, accused him of letting the convicts escape, and Massey replied: "I could not help it. They slipped up behind me, back of the lumber pile." Ward, thereupon abused him, and ordered him out of the yard, and, as he turned to go, struck him violently on the back, and Massey fell; and as he got up Ward threw a piece of brick at him, and as he was going out ordered the convicts present to put him out, and they seized him, and threw him down. The injuries inflicted by Ward were serious and painful. On the other hand, there was evidence introduced tending to prove that there was no lumber, at the time of the escape of the convicts, nearer to the place where Massey at a prior time had been placed as a guard, and where Ward found him soon after the escape, than 75 yards; that Massey, several days after the escape, admitted he was asleep when the convicts disarmed him; that the period of the confinement of the three convicts who escaped extended beyond the year 1883; that Ward's lease expired in 1883; and that the labor of the three convicts was worth $675 a year.

The trial court directed the jury to respond to the following interrogatory: "Do you find from the evidence that the convicts escaped through the negligence of Massey?" The jury returned a verdict in favor of plaintiff for $1,800, and to the interrogatory answered, "No." The defendant filed a motion for a new trial, and, the plaintiff remitting $75, it was overruled, and defendant saved exceptions and appealed.

It is first insisted by appellant that he was entitled to judgment on his counter-claim to the extent of the damages proven; that the jury, in disregard of the law and evidence, refused to so find, and that, as to this issue, the verdict was totally unsupported; and that, therefore, the judgment of the court below should be reversed. If it be true the special finding of the jury was contrary to the evidence, it would be no ground for reversal, unless it was prejudicial to appellant; and it was not prejudicial if he had not the right to plead the damages claimed by him as a counter-claim. Had he this right? Appellee insists he had not.

The Code of Civil Practice of this state provides that a defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off, whether legal or equitable, as he shall have. The counter-claim meant by the Code is defined to be "a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." The alleged tort of the defendant which constitutes the foundation of plaintiff's action is the assault and battery committed by appellant, and the foundation of the appellant's counter-claim is the escape of the three convicts through the alleged negligence of Massey. It cannot be said that the escape of the three convicts arose out of the assault and battery committed by Ward. Is it connected with the subject of the action? What is the subject of an action?

Mr. Pomeroy, in his work on Remedies and Remedial Rights, says: "It would, as it seems to me, be correct to say in all cases, legal or equitable, that the subject of the action is the plaintiff's main primary right which has been broken, and by means of whose breach a remedial right arises. Thus the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt, and the like, would be the subject of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the land or chattels, may be regarded as the subject, and are sometimes spoken of as such, yet this cannot be true in all cases; for in many actions there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy, around which all the other elements are grouped, and to which they are subordinate."

This view of what is the subject of an action appears to have been adopted by this court in White v. Reagan.

A few cases will serve to illustrate what the subject of an action is.

Glen & Hall Manuf'g Co. v. Hall was an action to restrain the defendant from using an alleged trade-mark, "Number 10," on the ground that it was a part of the plaintiff's trade-mark. The defendant admitted that he used the words "Number 10" in his business, but alleged that it was a part of his own trade-mark, and set up that the plaintiff had fraudulently used the same for the purpose of unfairly securing the defendant's customers, and asked, by way of counter-claim, that the plaintiff might be enjoined from using the words in the course of its business to the defendant's damage. The court said: "There will, then, be two distinct cases provided under subdivision 1: (a) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim; (b) a cause of action connected with the subject of the action. The present case falls under the last of these instances. A subject is that on which any operation, either mental or material, is performed; as, a subject for contemplation or controversy. The subject of an action is either property, as illustrated by a real action or a violated right. In the present instance the subject of the plaintiff's action was the expression `Number 10,' of which he claimed ownership as a designation of his business. The defendant's counter-claim is a cause of action against the plaintiff growing out of his infringement of the defendant's right to the same expression which he asserts belongs to himself. In the language of the Code, it is `connected' with it. The policy of the Code requires a liberal construction of this section, to the end that controversies between the same parties, on the same subject-matter, may be adjusted in a single action." See, also, Cornelius v. Kessel.

Simkins v. Columbia & G. R. Co. was an action against a railroad company for the killing of two horses by the defendant's train. The defendant denied liability, and asserted, as a counter-claim, injuries done to the engine and cars of the company by the presence of these horses on the track at the time they were killed. The court said: "The alleged tort of the defendant which constituted the foundation of plaintiff's action is the negligent running of defendant's cars, by which his horses were killed. The alleged tort of plaintiff, which is the foundation of defendant's counter-claim, was the alleged illegal presence of his horses upon the railroad track, by which the train was thrown from the track, and the engine injured. The injury to the engine, in point of time, it is true, followed in quick succession that of the injury to the horses; but it cannot be said that the illegal presence of the horses on the track, which is the foundation of defendant's counter-claim, arose out of the negligence of defendant in running the cars, which is the foundation of plaintiff's action. Nor was it connected with the subject of plaintiff's action." And the court held that the damages to the defendant's engine resulting from the trespass of plaintiff's horses on its track were not a proper subject of a counter-claim, because they did not arise out of the transaction set forth in the complaint as the foundation of plaintiff's claim, and were not connected with the subject of the action.

In California they have a statute which defines a "counter-claim" as follows: "The counter-claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the transaction set forth in the complaint or answer as the foundation of the plaintiff's claim or defendant's defense, or connected with the subject of the action; second, in an action arising upon contract, any other cause of action arising also upon contract, and existing at the commencement of the action." In Macdougall v. Maguire, the court held that, in an action to recover damages for an assault and battery, a libel published by the plaintiff of and concerning the defendant, which was the provocation to the offense, did not constitute a counter-claim under this statute.

Barhyte v. Hughes, was an action for an assault and battery. The defendant set up, by way of counter-claim, an assault and battery committed upon him by the plaintiff prior to the one described in the complaint. The court held that the two occurrences were so independent of each other that they could not be disposed of in one action.

The subject of this action was the right of Massey to immunity from personal violence. The breach or infringement of that right constituted appellee's cause of action. The cause of action of appellant against appellee, which was the escape of three convicts through the alleged negligence of Massey, had no connection whatever, direct or remote, with the subject of this action, and was not a proper subject of a counter-claim. But it is insisted by appellant that the special finding of the jury contrary to evidence proves that the verdict of the jury was the result of prejudice against him. The right of plaintiff to recover damages is not denied. Defendant admitted the assault and battery, and thereby necessarily conceded the plaintiff's right to recover. If the damages allowed by the jury were not excessive, he had no right to complain. Verdicts of juries are not set aside on account of the amount of recovery, unless the amount is excessive. If the plaintiff was entitled to recover, and the amount of the verdict was a fair compensation for the injuries complained of, the verdict of the jury should be permitted to stand. Upon a careful consideration of all the evidence in the case, we do not think the damages recovered were excessive.

It is next urged by appellant that the court below erred in instructing the jury, at the instance of plaintiff, as follows: "The court instructs the jury that the defendant, Ward, is liable in this action, not only for any wrongful assault which he himself may have made upon the plaintiff's intestate, Massey, but also for any wrongful assault which he may have caused to be made upon him by convicts acting under his orders on the occasion named in the complaint. If the jury find this to be true, and if the jury find for the plaintiff, it will be their duty to find for the plaintiff in such amount as would be a fair compensation to the plaintiff's intestate, Massey, for the injuries he suffered from any such wrongful assault; and in estimating such amount the jury may take into consideration the pecuniary outlay for medical and surgical attendance, loss of time and labor, and diminished capacity to work thereby occasioned from the date of such assault to said Massey's death, and also the personal indignity involved in such assault, and the bodily pain and suffering said Massey may have endured therefrom; and, in estimating the damages for such personal indignity and bodily pain and suffering, it will be the duty of the jury to say, within the bounds of reason and justice, what amount they believe to be a fair compensation for the injury sustained." It is insisted that this instruction was erroneous, because it furnished an improper measure of damages. But this question was settled by this court in this action when it was here before. Upon this point it said: "The elements of damages are the personal indignity involved in the assault, the plaintiff's bodily pain and suffering, loss of time and labor, and diminished capacity to work from the date of the assault to Massey's death, and the expenses of medical and surgical attendance during his injuries consequent upon the injuries received." See Ward v. Blackwood.

It is next contended that this instruction was erroneous because it permitted the jury to allow such damages as they, within the bounds of reason and justice, believed to be a fair compensation for the injury sustained, without regard to the evidence. But this and all other instructions given to the jury are to be considered together, and as a whole. In this connection the court instructed the jury among other things, that the burden of proof was upon the plaintiff to show, by evidence fairly preponderating, that Massey was unlawfully assaulted by Ward, and also to what extent Massey was actually damaged; and that, if they found Ward unlawfully assaulted and beat Massey, then Ward was liable for actual damages; and that, in arriving at the amount they should assess, they should take into consideration all the circumstances surrounding both parties. In construing these instructions together we see no conclusion to which the jury could fairly and reasonably have come, except that in considering their verdict, and the amount thereof, they should be governed by the evidence. Moreover, one of the elements of damages in the case was the pain and suffering caused by the wrong complained of, for which there is no legal measure of damage. The amount allowed therefor, if any, must to some extent have been left to the fair discretion and judgment of the jury.

One of the grounds of appellant's motion for a new trial was misconduct of the jury in arriving at their verdict by lot. In support of this ground the following affidavit was filed: "On this day comes J. D. Murphy, I. B. Durrall, and J. M. Simpson, who state, on oath, that they were members of the jury who tried and returned the verdict in the above-entitled cause; that the jury differed as to the amount of the said verdict, and finally concluded to write the amount of $2,000 on one slip of paper, and the sum of $1,800 on another slip of paper, and the two were then placed in a hat, and one of the jurors was requested to draw one of said pieces of paper out of the hat, which was done, and the slip of paper with the $1,800 written upon it was drawn, and the verdict was made and rendered at such amount, and so returned it." And the plaintiff objected to the admission of it as evidence for any purpose whatever. Was it admissible? In Pleasants v. Heard, the affidavit of Strawn, one of the jurors, was filed to show that the jury agreed that each member thereof should write down the amount that he was in favor of, and that these several amounts should be added up, and their sum divided by 12, the number of the jurors, and that the quotient should be taken and written as the amount of their verdict, which was accordingly done, and the verdict so arrived at was returned into court as the verdict of the jury. Chief Justice ENGLISH, in delivering the opinion of the court, said: "Though there are some conflicting cases, we think it may be safely decided, upon authority, and for many good reasons, that the affidavit of the juror Strawn was not admissible in this case to impeach the verdict rendered by him, for the cause stated in the affidavit." The rule laid down in Pleasants v. Heard has not been changed or repealed in civil cases, but, on the contrary, in such cases, remains in full force.

We find no error in the judgment of the court below prejudicial to appellant, and it is affirmed.

Elliot v. Porter is another case from the same year involving the tort of battery.