Frieders v. Estate of Frieders

The following opinion was filed March 6, 1923: Owen, J. At the time of the injury to the plaintiff he and his employer, the deceased uncle, were concededly subject to the provisions of the workmen’s. compensation act. Immediately upon the injury, therefore, a liability was imposed by law upon the uncle, now deceased, to make compensation for such injuries according to the rates and schedules provided in that act. The amount of the liability thus imposed could have been quite easily and definitely determined. For the present purposes it is quite safe to1 say that it would not have exceeded $5,000. The jury found that $4,000 was reasonable compensation for the injury sustained. At a time, therefore, when the deceased uncle was under a legal obligation to> the plaintiff in an amount not to exceed $5,000, he agreed with the plaintiff that if he would make him no trouble because of the injuries sustained he would make provision for him in his will so that he, the plaintiff, would never have to work. ITe died without making such ■ a provision, and the question is, What is the measure of plaintiff’s damages for tire, breach of the contract? In Murtha v. Donohoo, 149 Wis. 481, 134 N. W. 406, 136 N. W. 158, it appeared that the claimant had supplied the deceased, during a period of six years, with food, shelter, clothing, and money, the aggregate amount of which does not appear. This was all furnished prior to 1898. During the spring of 1901 the deceased promised claimant that he would give him bj^ his last will the sum of $1,000 for what he had done for him. He died leaving no such provision in his will. Claimant sought to recover the $1,000 so promised. The court held that the agreement was valid and binding, but that the measure of damages was the value of the executed consideration for the agreement and not the amount [433] of the promised legacy, the court saying: “In a case like the present, where the promise to compensate by legacy is based upon a past or executed consideration, the recovery must be limited to the amount of the demand so to be compensated, or the reasonable value thereof where the amount is not fixed and definite.” We can see no substantial, if indeed there be any shadow of, distinction between this and the Murtha Coser In both cases that which gave rise to a liability on the part of the deceased to" the claimant had occurred before the promise was made. In the Murtha Case the courtesies, consisting of food, shelter, clothing, and money which founded the consideration for the promise, had all been contributed prior to the promise to compensate in the form of a legacy. Here the injury which formed the consideration and constituted the reason and motive for the promise ha& occurred and liability had already attached. In neither case, however, was there any consideration for the promise to compensate beyond the amount of legal liability except the implied or perhaps express promise to forbear enforcement of an existing legal right. In the instant case that consideration was out of all reasonable proportion to the amount promised over and above the actual legal liability, and to permit a recovery of $30,000 is practically tantamount to the enforcement of a naked promise to make a bequest. The statute prescribing the manner in which wills shall be executed is in the nature of a statute of frauds. Perhaps no other legal document requires such solemnity in the manner of its execution. This is for the purpose of securing the highest degree of assurance that the testator’s-property will go as he wills it and to make it correspondingly difficult to divert it into other channels.. To permit this judgment to stand would open up an alluring field for frauds and perjuries and neutralize to a great degree the safeguards which the statute throws about the estates of deceased persons. It would permit any one having a claim against an [434] estate of a deceased perspn, and being fraudulently disposed, to manufacture evidence to show that the enforcement of the claim was postponed because of an oral promise made by the testator that he would liquidate the claim by a. provision in his will, and the estate of a testator would not go according tO' his written direction executed in accordance with the solemnities required -by the statute but according1 to parol' testimony produced at a time when the testator cannot be present to- refute it. While justice might be done in the instant case, a recognition of such a rule would point the way for the contravention of a statute designed by - the legislature to prevent the distribution of estates except in accordance with the will of the testator. It would be a most dangerous rule, subversive of public policy and destructive-of the legislative will. As was said of the rule embodied in sec. 4069, Stats., by Mr. Justice BarNE's in Dilger v. Estate of McQuade, 158 Wis. 328, 148 N. W. 1085. “Meritorious claims may occasionally be lost by the enforcement of such a rule, but the trumped-up claims that may be defeated by it will in all probability form a much more numerous class.” The rule of the Murtha Case responds to every call of justice. It recognizes the validity'- of the contract, it postpones the running of the statute of limitations until the death of the testator, it allows as damages for the breach the full value of the services rendered or any other consideration passing from the claimant to the testator upon which the original claim rests. To allow more is to enforce a promised legacy, which should be recognized only' when created in the manner required by statute. While in reaching our coil-clusion no reliance is placed thereon, it is proper to refer to the fact that the element of consideration mentioned in the Murtha Case as passing from the deceased to the claimant as supporting the extension of the time of payment which took the contract'out of the statute'of frauds, namely, the [435] personal use and enjoyment by the promisor of the property during his life, is not present in this case. The deceased carried liability insurance which fully indemnified him against any liability because of the injury sustained by the claimant. No benefit or advantage resulted to the deceased from the forbearance of the claimant. The only disadvantage suffered by the claimant was a postponement of the tirfie of recovery which the law measures in the terms of interest. We regard the rule of the Murtha Case as sound in policy, consistent with the spirit and purpose of the statute regulating the execution of wills, one which yields to the claimant full compensation for any claim he may have against the deceased, resulting in injustice to no one. This general subject is treated in a note,to be found in 41 L. R. A. N. s. 246. Most of the cases there cited have been examined and no case has been found where the measure of damages for the breach of an agreement to compensate for an existing liability has been held to be anything but the value of the original claim. It necessarily follows that the judgment for $30,00CLcannot be sustained. The question now arises whether plaintiff is entitled to recover in any amount. As appears from the statement of facts, the insurance company which indemnified the employer under the workmen’s compensation act paid the claimant in small weekly sums a total of $163.80. Upon the payment of the last instalment the plaintiff signed a release, in which appears this language: “I hereby release and forever discharge the said insurance company and my said employer from any and all actions, causes of action, claims or demands, for, upon, or by reason of the accident suffered by me on or about the 17th day of February, 1914, and while in .the employment of said employer, which caused a disability until the 11th dav of July, 1914.” Does this release bar a recovery on the part of the plaint [436] iff for a breach of the contract under consideration? It is apparent from the record that the sum of $163.80 was grossly inadequate to compensate the plaintiff even under the compensation act for'the injury sustained, and to enforce it would be unconscionable. It is true that a release executed without fraud, coercion, or undue influence, even though it may be an improvident settlement, cannot be ignored merely for the reason that it is inadequate. However, we ,are relieved of the necessity of inquiring whether the release was procured by fraud or imposition because, whether it was or not, it does not pretend to be a release of damages arising from a breach of the contract which constitutes the subject of this action. Granting that it constitutes a release from liability arising under the workmen’s compensation act, the liability sought to be enforced here arises from a breach of a contract and it does not operate to release that liability. The question then is, What is the measure of plaintiff’s damages? Manifestly it is the amount to which he would have been entitled under the provisions of the workmen’s compensation act for the injuries which he sustained. The case was not tried on that theory and the verdict does not indicate the amount to which plaintiff is entitled. We hold that he is entitled to recover the amount to which he would be entitled under the provisions of the workmen’s compensation act, with interest from the date when in the ordinary course he would have received such compensation, to ascertain which a new trial is necessary. By the Court. — Judgment reversed, and cause remanded for a new trial. Eschweiler, J., dissents.