Whittington v. H. T. Cottam Co.

It is sufficiently stated in the majority opinion that on the record before us the facts show liability against the defendant, but as to the injury nothing is said except that it was serious and permanent. The statement therefore requires amplification both as to the nature of the injury and the circumstances of the alleged release.

Under the undisputed testimony a heavy commercial truck of defendant traveling at a rapid rate at night, and with only one light and on the wrong side of the highway, ran into the automobile in which appellant was riding as a guest, with the result that the skull of appellant was crushed in on the left front side thereof, and with such force and effect as not only to pulverize the skull bone, but also to penetrate the dura and enter the brain. This was on the night of November 16th. Within a few hours appellant was received at the hospital and there an operation was immediately performed. The skull bone, outer and inner, was removed leaving a hole two inches in diameter, or a little more, covered only by the skin, and which today leaves the wound in such condition that the pulsation of the heart can be seen through this hole, and, when the victim leans forward or stoops, the brain falls down and protrudes through the hole, being held back only by the outer skin, and such minor processes as nature has been able to send in aid. It is not necessary to pursue the further details; these may be summarized by the statement that it has been said by one of the world's greatest surgeons that in many respects it would be better that the victim be dead than try to live on with such an injury.

What happened after the operation from a surgical or medical standpoint is not disclosed, except from the hospital records which show that the wound and the head were heavily bandaged, that drains into the wound had been inserted, and that the patient was to be given opiates as needed. Appellant testifies that he remembers nothing that happened from the moment of the collision until the following Sunday afternoon, November 20th; and the testimony discloses, without dispute, that appellant did not know that a part of his skull had been removed, and that there was a permanent hole in his head covering about half the left side of his forehead until the day before he was released from the hospital in December, when the bandages were removed and the nurse exhibited the wound by means of a mirror and then told the appellant what had actually happened.

In the meantime, however, and on Saturday following the injury on Thursday night, an adjuster for a liability insurance company, the carrier of the liability insurance for appellee, had been permitted to get into this hospital and into the presence of the victim of this injury, and there to secure what is euphoniously termed a release, which paper reads as follows:

"Jackson, Mississippi, November 19, 1927.

"$500.00

"Received from H.T. Cottam Company the sum of five hundred and No/100 dollars plus the bills of Dr. A.E. Gordon and the Baptist Hospital not to exceed a total sum of six hundred and No/100 dollars combined which I (being of lawful age) acknowledge to be in full accord and final satisfaction of a disputed claim growing out of an injury sustained by me on or about November 16, 1927, for which bodily injury and its results I have claimed the said H.T. Cottam Company to be legally liable, which legal liability is expressly denied, and

"In consideration of said sum so paid, I hereby remise, release and forever discharge the said H.T. Cottam Company heirs, successors, administrators, and assigns from any and all actions, causes of actions, claims and demands, for, upon, or by reason of, any damage, loss, injury or death or suffering which heretofore has been, or which hereafter may be, sustained by me, my estate, or any other person in consequence of such accident and injury, and

"I do consent that any doctor, physician, or surgeon, may testify in any controversy with reference thereto.

"Witness my hand and seal this the day and date first above written.

"(Signed) G.H. WHITTINGTON.

"Witnessed: W.B. Montgomery; W.K. Robinette; J.H. Whittington; E.L. Stidham."

At this point, in addition to the facts already stated, it is necessary to add only that appellant testifies that he remembers nothing of said release, knew nothing that happened that day, and did not know anything until the Sunday following, and there is the testimony of appellant's uncle, who was present, that he protested against the execution of any papers on the ground that appellant was in no condition to know what he was doing. This testimony must be taken as true, for the judgment here was on a peremptory instruction for defendant. On Tuesday, November 22d, the check for the five hundred dollars came and was delivered to appellant's father, who deposited it in bank. After appellant's release from the hospital and from the injury above mentioned, it was again necessary for appellant to have an operation, but what this was for does not clearly appear from the record. It would seem, however, that it was for some injury to the side, although the only thing found in the original hospital record of a further injury is the entry: "Patient also had laceration of hip, sutured." Some part of the money paid for the alleged release was used on this latter operation, but how much does not distinctly appear. After appellant was finally able to go about, which was in January, he soon discovered that he would not be able to do any work of any gainful consequence, and he has not since been able, and in addition he suffers constantly from pains in the head and from peculiar tingling sensations in his arms. He has no education, having reached only the fourth grade in school; he lives with his father who is unable to read and write, and who is a small tenant farmer. Appellant admits that he realized his condition in a few months after his final release from these hospital operations, and admits that in driblets as time went on he spent for necessities, some of it for medicines, the money paid him for said release. But he says that being ignorant of such matters, and supposing that his signature to a release bound him without recourse, he took no steps not knowing that he could, until more than twelve months thereafter when he was advised by a friend, who happened to interrogate him in respect to the injury, and who then further advised him to consult a reputable attorney, which was then immediately done and thereafter suit was brought.

The majority opinion does not undertake a defense of the alleged release in this case, or of the manner of its procurement; nor, in the light of conscience and the numerous denunciations of such transactions by this court in the past, is it hardly to be seen how the machinations of said alleged release could be defended. The majority place their opinion squarely upon the ground of a ratification, and this, although the amount paid this appellant was so pitifully, not to say contemptuously, inadequate that this court would instantly have set the verdict aside if such an amount had been returned by a jury in the case of such an injury as this.

Upon the question of ratification, we say that such a contract of release, under the facts of this case, is utterly void; is against public policy, and because of its corruption should be placed beyond the sanctuary of ratification. We refer to the opinion of such transactions as expressed by this court in the past, as, for instance, in Jones v. Railway Co., 72 Miss. at page 27, 16 So. 379, 380, where the court said: "Is anything more than its naked statement needed to shock the conscience? There is a fitter place for the execution of such a release than the sick room of a sufferer, and a fitter time than a period following, by less than twelve hours, the amputation of his foot. Unhesitatingly we join the Illinois supreme court in pronouncing this ``indecent haste' . . . and declaring that this release, if thus obtained, is an absolute nullity. Courts do not sit to sanction such travesties of contract." And let us for a moment turn to similar language of this court, for instance, in Railroad Co. v. Chiles, 86 Miss. at pages 365, 366, 38 So. 498, and in Railroad Co. v. Ault, 101 Miss. at pages 349-351, 58 So. 102.

Those were the expressions of the court in the days when there were few such injuries, and when there were but few public or private hospitals, and in consequence, but few of the body of the people were affected by these happenings. But now another age has arrived, and with additional lines of railway covering the entire state, motor bus transportation companies on all the principle highways, and the automobile everywhere, to say nothing of additional industries, the pages of the public prints are filled with the reports of accidents and injuries, and hospitals now grown numerous throughout the state are crowded with the victims of the new order of our social and commercial life. The law must advance to meet these conditions, and must extend its lines of fortification to correspond with the needs of the advancement of the times — if the law is to continue to serve the purposes upon which its institution is founded, namely the enforcement of justice amongst men, which, to state the same proposition in the reverse, is to prevent injustice amongst men.

We say that now such a pretended contract of release as is before us should, not only be declared void as against conscience as our courts have so often heretofore declared, but that it should at this day be further said of them that they are void as against public policy, arising out of the times and the new order that has arisen in our advancing material civilization. The public policy of a state has reference to the interests of the people thereof in the several following respects: The public health, the public morals, the public safety, the public welfare, the administration of public justice, and the like, and it progresses in step with the ever changing conditions of commerce, the mechanical arts, and all those newly arising elements and operative influences which affect the lives, the safety, and the rights of the people. The term "public policy" "embraces all acts or contracts which tend clearly to injure the public health, the public morals, the public confidence in the purity of the administration of the law, or to undermine that sense of security for individual rights which any citizen ought to feel." 6 R.C.L., p. 712. "In substance it may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare and the like. It is that general and well-settled public opinion relating to man's plain, palpable duty to his fellowmen, having due regard to all the circumstances of each particular relation and situation. Sometimes such public policy is declared by constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man." Pittsburgh, C., C. St. L.R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, L.R.A. 1917D, 641, Ann. Cas. 1918B, at page 288. And the court adds in effect that, whenever a course of conduct is positively hurtful or shockingly unconscionable in "the average man's conception of justice, such course of conduct must be held to be obviously contrary to public policy, though such policy has never been so written in the bond, whether it be constitution, statute or decree of court." Or as said by our own court in Spinks v. Davis, 32 Miss. at page 156: "It is a sufficient objection to a contract, on the ground of public policy, that it has a direct tendency to induce fraud and malpractice upon the rights of others, or the violation or neglect of high public duties."

In the light of the foregoing principles what would be thought of a contract by the superintendent of a hospital or the surgeons there in charge, made with the carrier of liability insurance that, at once upon the admission to the hospital of the victim of a serious injury — as for instance when his skull is mashed in — inflicted by any person or corporation insured by said contractor, the said superintendent or surgeons would immediately notify the liability insurance adjuster and secure admission to the presence of the sufferer, regardless of the latter's condition, and would aid in procuring a release? The inviolable duty of said superintendent and of said surgeons — and this duty is the same whether in a hospital, an apartment, or a home — is to the health of the patient, and to do everything and use every available means to restore the sufferer, so far as within human power, to his former physical soundness, and this, too, as speedily as safely may be. It is a matter of universal acceptance among the medical profession and of universal common knowledge among laymen that seriously injured patients must be kept in a cheerful and confident mood, and the extent of the injury should be kept from their knowledge so far as possible; otherwise despondency and hopelessness and grief at a permanent injury will militate against a recovery and often result in death which would not have occurred had the patient not known the real truth. Often such sufferers are strangers, often they are poor and friendless and still more often they must depend on their daily manual labor for subsistence. Disclosures in such cases of the reality of the injury would work the most detrimental results, and at best in such cases the mind of the patient is far from that condition which will enable him to deal in justice to himself in relation to business matters of any kind. But in view of what has just been said, how could he deal in reference to his injuries? He must know the nature, the extent, and the probable consequences thereof in order to make a contract just to himself in reference to them, and yet, if the surgeon or physician should tell him the full extent and probable consequences, it would often and all chances of a recovery and escape from death, and a physician who would so inform him fully in such a case would be only fit to be scourged from his high profession.

So what, therefore, of the sort of contract just above suggested? Would there be any hesitancy in declaring it void as against public policy? To advance the matter a step nearer, suppose a liability insurance carrier should make a contract with an expert adjuster by which that adjuster would keep in touch with all hospitals within, say, thirty miles, and would arrange with these hospitals to gain entrance for the purpose of obtaining a release at once upon any serious injury by any person or corporation carried by the liability insurer, and all this regardless of the condition of the victim at the time — is it possible that there is any court anywhere that would not declare such a contract void, and void as against public policy? And now suppose an adjuster without any contract so to do yet does that very thing, is there any less the same reasons and solid grounds present for saying that what he has done is void and in contravention of the sanctions of public policy? None; and that is the case we have before us, according to this record.

There is another feature of this case that challenges attention. It will be observed that at the botom of the above-quoted release there is a provision waiving the privilege of the statute as to the testimony of the physician. The reasons and the abuses that brought about the passage of that statute in this state are too well known to require mention here. It is our duty to enforce that statute and uphold the policy upon which it rests, and which it, in part, expresses. All that is necessary to do in order to throw that statute into the waste basket is to get a release with the quoted provision in it; and it makes no difference that the patient was filled with opiates or raving in delirium, if only a cross-mark can be obtained — the privileged testimony is let in, and for all purposes. As against such a procedure, it is the duty of courts to draw the lines of the law more tightly. When evasions of the law and its policy confront the court, its duty is to strangle such evasions and put them out of the way.

I therefore fully concur in the dissenting opinion of Judge ETHRIDGE, and hold with him that any contract, with any person while yet suffering from a serious injury or sickness, which contract has to do directly with that injury or sickness, shall be presumed, prima facie, to be void as against public policy, and that the burden shall devolve upon the person relying upon such a contract to show its entire fairness, that it was made when the opposite party knew or had had the full opportunity to know his condition and when no reason appertaining to correct medical treatment existed or remained for not fully informing the injured or diseased person of the nature and extent of the injury or sickness. In the language of the court in the Jones case: "There is a fitter place for the execution of such a release than the sick room of a sufferer, and a fitter time than a period following, by less than twelve hours, the amputation of his foot." This would eliminate at the same time and with equal applicability the ambulance chaser and the procurer of wrongful releases; would do the sufferer the justice to give him time and opportunity for recovery and for his later action when he is convalescent in mind as well as in body, and at a time when the contract, if made, can be defended and upheld upon its own intrinsic fairness and validity, and when for that reason the matter of ratification will disappear as an essential inquiry. If fair and legitimate, the contract will stand alone and without the need of aid; whereas, if wrongful and illegitimate by reason of being in contravention of the considerations hereinabove mentioned, it ought not be allowed aid in a court of justice, in such a case as we have here before us, or in any similar case.

We notice the concluding portion of the majority opinion wherein it is mentioned that the point upon which we rely has not been expressly raised in the arguments. The rule of practice mentioned is undoubtedly a salutary one, but at last it is only a rule of practice, not of positive law; and in applying it we should be sure that the particular case does not require us to find a better one in that greatest of all Codes where, when a somewhat similar plea was made, the answer was, "The voice of thy brother's blood crieth unto me from the ground."