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District Court of Appeal, Fourth District, California.


Civ. 2396

Decided: August 02, 1940

Wright, Monroe, Harden & Thomas, of San Diego, for appellants. Joseph S. Campbell, of San Diego, for respondent.

This is an appeal from a judgment in the sum of $3,500 in favor of plaintiff for injury to his left eye, being part of the personal injuries received in a collision between his motorcycle and a light delivery truck owned by Milton Sessions and driven by Edwin J. Bonnin.

The collision occurred at the intersection of India and Redwood streets in San Diego, shortly after 4 o'clock on the afternoon of April 5, 1939. Both streets are paved to a width of 52 feet between curbs. The intersection was obstructed to northbound traffic on India street and the permissive speed limit for vehicles so approaching the intersection was 15 miles per hour.

Plaintiff was traveling south on India street, and, after traversing about three-quarters of the length of the block south of Redwood street, reversed his course by making a “U” turn. Bonnin was driving the delivery truck south on India street and when about 16 feet north of the north line of the intersection, in commencing a left turn into Redwood street, crossed the center line of India street, “cut the corner” and proceeded across the northeast quarter of the intersection. Bonnin saw plaintiff approaching the intersection from the south when the motorcycle was about 25 feet south of the intersection. He swerved his truck to his left but the vehicles came together in the northeast quarter of the intersection. Plaintiff did not see the delivery truck until the moment of the impact. Both vehicles were traveling at about 25 miles per hour.

The foregoing statement of facts demonstrates that Bonnin was negligent. The freedom of plaintiff from contributory negligence is not so clear. The trial court found that when Bonnin was 100 feet north of the intersection he could have seen plaintiff had he looked. While there is no specific finding on the question, it would be equally true that, had plaintiff looked, he could have seen the truck for an equal distance. The only evidence in the record indicates that plaintiff traveled not less than 65 feet (probably more) on his course after Bonnin had started his left turn, and that during the time he was traversing this space he could have seen the danger in front of him had he looked. It should be trite to say that the rider of a motorcycle is under the same duty to observe the road in front of him and look for danger as is the driver of a light delivery truck.

Plaintiff, a member of the United States Marine Corps, suffered serious injuries in the collision. He was taken to the United States Naval Hospital in San Diego where he was attended by Dr. Grindell who was attached to that institution. The bones in one leg and one arm were fractured and he had cuts and bruises around his left eye.

On the day following the accident an insurance adjuster for the company which carried the indemnity insurance on the delivery truck, called on plaintiff at the hospital. He was accompanied by Dr. Francis M. Findley, who, with Dr. Grindell, examined plaintiff's injuries. Plaintiff and the adjuster agreed on a complete settlement for all of plaintiff's damages in the sum of $800. The adjuster prepared and plaintiff signed a complete release of all his claims for damages. The adjuster prepared and delivered to plaintiff a draft for $800, on the face of which appeared: “In full satisfaction, compromise and discharge of all claims against Milton P. Sessione and Edwin Bonnin for damages as result of auto accident at India street and Redwood street, San Diego, San Diego County, California.” On the reverse side of the draft was the following: “In full payment and complete satisfaction of all claims against Milton P. Sessions and Edwin Bonnin under policy No. 8130402 for damages as result of accident occurring 4/5/39 at Redwood and India Streets, San Diego County, San Diego, California.

“The endorsements must be in conformity with the name or names as written on the face of the draft.

“In consideration of such payment the said _ payment Milton P. Sessions & Edwin Bonnin is hereby discharged from all further claim by reason of said settlement leaving _ dollars, $_ only in force under said policy.

“Joe Wright Backus.”

Plaintiff testified that he read the draft and the endorsement before he endorsed and cashed it on April 17, 1939; that he was then in possession of all his faculties; that he understood what he was doing; that he was accepting the $800 in full settlement for all his damages.

The trial court found that at the time the release was signed on April 6, 1939, plaintiff was not in possession of his faculties and was in a semi-conscious condition; that he was wholly without capacity to contract; that he was unaware of the contents of the release and did not know its contents until the time of the trial. There is evidence supporting this finding and we must accept it as final under the familiar rule that conflicts in the evidence are addressed to and settled by the trier of fact.

The trial court also found that at the time plaintiff endorsed and cashed the draft on April 17, 1939, he “was in full possession of his mental faculties and was aware of and intended to release all of his damages then known to him”.

There is undisputed evidence in the record that plaintiff suffered a permanent injury to the vision of his left eye as a result of the accident; that the optic nerve has been pinched; that he has only a 20/100 vision in that eye; that there is partial atrophy of the left optic nerve; that there is little chance of his vision improving; that it may become worse.

Defendants argue that the release signed on April 6, 1939, and the draft, were parts of the same transaction; that admitting the incompetency of plaintiff when he signed the release, he was competent when he endorsed and cashed the draft; that the latter act was a ratification of the former. It makes no difference with the results to be reached in this case whether we adopt this ratification theory or regard the endorsement and cashing of the draft as an independent transaction, as the draft released all claims of plaintiff against both defendants. It is a sufficient release in itself and unless plaintiff can avoid its legal effect he must be held bound by it.

To escape the effect of this release plaintiff relies upon section 1542 of the Civil Code which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

The theory upon which the judgment is based is fully disclosed by findings 8 and 9, and a conclusion of law which we quote as follows:

“VIII. The following injuries to plaintiff were proximately caused by the negligence of defendant Bonnin; plaintiff suffered severe mental and physical shock; plaintiff's left ankle was fractured; his left wrist was fractured; his left arm and his back were severely bruised; his left eye was cut and bruised; the fluid of his left eyeball was diminished; the left optic nerve was partially atrophied impairing the vision of his left eye 80% as of the date of the trial, and which will result in blindness in the left eye; plaintiff was hospitalized from April 5th, 1939, to June 25th, 1939; his motorcycle was wrecked and made valueless.

“IX. Plaintiff's damage for injury to the left optic nerve and impairment of vision and future blindness of left eye are Three thousand five hundred Dollars (3,500.00), and for all other damages are the sum of Eight Hundred Dollars ($800.00)”.

The trial court drew the following conclusion of law: “That the draft for $800.00 was a full release and satisfaction of all of plaintiff's damages known at the time it was negotiated by plaintiff, and these include all damages except injury to optic nerve of his left eye and progressive loss of vision thereof.”

It is established by uncontradicted evidence that his left eye was injured and its vision affected before he endorsed and cashed the draft on April 17, 1939. On his direct examination he testified:

“Q. Did you have any difficulty with that left eye before this injury? A. No.

“Q. Have you had difficulty with that eye never since the injury? A. I have.”

He also testified that his eye was bandaged for about eight days after the accident; that the bandage was removed every day and his eye treated.

Dr. George L. Kilgore, who examined plaintiff, testified as follows: “The following are the findings in the case of J.W. Backus, examined in my office on January 5th and 6th, 1940. The patient stated that before the accident on April 5, 1939, he had no difficulty with the eyes whatsoever. There had been no general illness of any type. The vision of each eye was excellent. Following the injury of April 5, 1939, the left side of the face and left eye were covered with a bandaged until about April 12th the to 15th, 1939. The left side of the face and external adnexia of the eye were swollen and hemorrhagic. Upon removal of the bandage on or about April 12th to 15th, 1939, the vision of the left eye was seen to have an absence of the lower nasal half of the visual field. The vision of this portion of the field seemed to improve for approximately three months to reach the present stationary condition. There was no pain in the eye at any time.”

This evidence, and other testimony, fully supports the findings which we have quoted as to the injury to plaintiff's eye. It is clear that plaintiff knew that his eye was injured and his vision affected before April 17, 1939. It is also clear that neither plaintiff nor any one else knew of the injury to his optic nerve and his prospective loss of all or a large part of the vision of his left eye before that date.

The question remains, Was the injury to the optic nerve, as distinguished from other eye injuries, a separate and distinct injury from the others suffered by plaintiff of which he had knowledge, and was it the basis of a claim for damages which he did “not know or suspect to exist” sufficient to bring it within the rule of section 1542 of the Civil Code?

When we return to a consideration of the findings and conclusion which we have quoted, it is evident that the trial judge was of the opinion that on April 17, 1939, when the draft was endorsed and cashed, plaintiff knew of all his injuries “except the injury to the optic nerve of his left eye and progressive loss of vision thereof”; that plaintiff knew then that “his left eye was cut and bruised”; that “the fluid of his left eyeball was diminished”. It is also true that plaintiff knew that the vision in that eye was affected to some extent at that time though the injury to the optic nerve and the full extent of his probable loss of vision was not then known.

We believe the case of O'Meara v. Haiden, 204 Cal. 354, 268 P. 334, 335, 60 A.L.R. 1381, decisive of this phase of this case. In that case the seven-year-old son of plaintiff was struck and injured on September 14, 1922, by an automobile owned by defendant Haiden and driven by his employee. The child was confined to his bed for two weeks he returned to school. His attending physician testified that on October 4, 1922, the child seemed to have made a recovery. He was taken sick early in April, 1923, and died on April 13th, “from a complication of the bruised condition of the spleen and the infection of measles”. The Supreme Court remarked that on November 1, 1922, when plaintiff signed a general release of damages neither party believed that the child “had sustained any more than superficial wounds or bruises by reason of the accident”. It appears from the opinion that when the release was signed there was not even a suspicion that the child had suffered an injury to his spleen.

In this respect the O'Meara case differs from the instant case in that Backus knew that his eye was injured and that its vision was affected to some extent. It is true that he did not know that the optic nerve would atrophy and that he might suffer partial or even total loss of vision of the injured eye.

In the O'Meara case the Supreme Court laid down the following rules for our guidance:

“It is quite evident that the settlement made by the defendant and the delivery and acceptation of the release was simply for the injuries sustained by the boy, and which were the known to the parties, and from which, from the testimony of the doctor, the box had recovered.

“A further distinction is made in the case of Richardson v. Chicago etc. Ry. Co., supra [157 Minn. 474, 196 N.W. 643], between the injury sustained and the effects or results from such injury. If the injury is known at the time of the settlement, the release is blinding upon the parties, even if unknown or unexpected consequences result therefrom; but, if the injury is unknown, and the parties purport to settle for all injuries sustained, then the release will not be held to be binding upon the parties as to the injury which was unknown to the parties at the time of executing the release: ‘To avoid such a release, the rule requires clear and convincing proof that a substantial injury, which was not discovered until after the settlement, had in fact been sustained in the accident and existed at the time of the settlement. That unknown and unexpected consequences resulted from known injuries is not sufficient.’ Richardson v. Chicago etc. Ry. Co., supra. The testimony of Dr. Nichols is that the boy died from an injury to his spleen received at the time he was run over by the defendant's automobile, and that such injury was not visible to the naked eye. The only conclusion to be drawn from his testimony as recited in this opinion is that he did not know of the injury to the boy's spleen at the time he ceased his visits to the boy on October 4, 1922; that his first knowledge that the boy had sustained any such injury was after the boy had come down with the measles, which was the following April, and which was long after the execution of the release. It is not contended, nor is there any showing, that the plaintiff had any knowledge of this injury expect as he was informed thereof by the doctor. It appears, therefore, beyond question, that at the date of the release the injury which was the cause of the boy's death was not known to either party. It was not in the minds of the parties at the time of the settlement which resulted in the execution of this written release. Accordingly, although the release may purport upon its face to extend to the plaintiff's claim for damages arising from the death of his son, yet, in reality it does not do so. Section 1542, Civ.Code.”

Since Backus knew his eye was injured and its vision affected before he endorsed and cashed the draft, the conclusion follows that he should have suspected that there might be some future effects from this injury not then evident. The injury to the eye was known at the time of the settlement and his subsequent serious loss of vision was an unknown and unexpected consequence resulting from his known injury. Such facts are not sufficient to avoid the release. O'Meara v. Haiden, supra.

It is well established that a release such as we have before us may be invalidated by proof of fraud or mutual mistake of fact. O'Meara v. Haiden, supra; Miller v. Brode, 186 Cal. 409, 199 P. 531. The trial court found that, through the examination made by Dr. Findley, the insurance carrier of Sessions “thereby became acquainted with the fact of plaintiff's permanent and progressive injuries to the optic nerve, and having such knowledge, and concealing the same from plaintiff, who first discovered the fact in June, 1939, left at the hospital on April 6, 1939, a draft for Eight Hundred Dollars ($800.00)for plaintiff, which was in release of all claims for injuries on account of the accident.” We presume this was an attempt to find fraud on the part of defendants.

The only real evidence in the record bearing on the question of fraud, or concealment of facts disclosed by the examination of plaintiff by Dr. Findley, is found in the testimony of that physician and of A.B. Severance, the adjuster for the insurance company. This evidence stands uncontradicted. Dr. Grindell, who assisted in the examination, was not called as a witnesses.

We find the following in the testimony of Severance: “Well, to start in with, I had called the hospital to see if I could see Mr. Backus and they told me that it was possible and I taken Dr. Francis Findley to examine him and the two of us proceeded to the ward in which he was located and the doctor met the attending physician there and asked permission to examine him and the two doctors and myself came into the ward and after the examination of Mr. Backus by Dr. Findley, I walked around to the side of the bed and I said, ‘I want to give you my card.’ I says, ‘I don't suppose you are in any position to talk about a settlement of this case at this time.’ I said, ‘When you feel better, I will come back to see you,’ and he indicated that he was willing to talk about the case at that time. * I said, ‘There is no use of our arguing about the case. If you can tell me what you think you ought to have, I will try and get it for you.’ Well, he said he thought he ought to have a new motorcycle and a thousand dollars for his injury. So I told him I didn't think I could get that much for him but I would call Los Angeles and see if the company wanted to pay that much money, so I went out to the telephone and called Los Angeles and got an authorization up to five hundred dollars for his injuries and for his new motorcycle, making a total of eight hundred dollars,, * I told him a thousand dollars for his injury but I could get him five hundred dollars for his injuries and a new motorcycle. So he said, well, that if he was sure that his eye was not serious, he would take it, but he wasn't sure. Well, the doctor that was in the ward there was not an eye specialist nor was Dr. Findley whom I had brought to examine him. Well, he said he would like to the attending physician again, so the attending physician in the ward there came in and there was some conversation about whether his eye injury was serious and permanent or whether it was minor, and the attending doctor stated that he was not an eye specialist and could not go on record one way or the other. So after some hesitation, Mr. Backus said he would make the settlement. I wrote up the papers and singed the draft and gave it to him and he sat up in bed. He says, ‘Do you know that is more money than I ever had in my life?’ and I said I hoped he would get along with his injuries and hoped he would recover all right, and left after getting witnesses to the release. *

“Q. How did it happen that you discussed his eye? A. I did not discuss it—he is the one that discussed it with me.

“Q. And he told you if he was sure about his eye, that he might be willing to settle? A. Yes, sir.

“Q. But he was not sure about it? A. No. *

“Q. Mr. Severance, at the time of making the settlement, I will ask you to state what was done with reference to the preparation and signing of the release? A. Well, I first made out the release, filling in the blank spaces while this service man was talking to Mr. Backus, asking him questions, and then after he got through talking to him, I showed him the release and started writing out the draft. He said, ‘Well, if I knew my eye injury was, whether it would be permanent or temporary, I would settle the case but,’ he said, ‘I don't know.’ ‘Well,’ I said, ‘that is a gamble you have got to take.’ ”

Dr. Findley testified as follows: “He (Backus) states that he is unable to see clearly with his left eye. * The patient's head was bandaged. These bandages were removed by the attending Naval Surgeon, that is, this Dr. Grindell, I believe his name is that went with us—which shows considerable swelling around the left side of the forehead the left temple and the left eye. Apparently he had gotten—the force of this blow had come more on the left side of the face than the right. There were three superficial lacerations or cuts, involving the left temple, the left side of the forehead and the left eyebrow, each about one inch long. These had been sutured and should heal with very little deformity. Then there was a superficial abrasion of his left temple, half an inch in diameter, and he was quite tender over his left check bone and my notes state that there is probably—that this is probably due to soft tissue swelling and not to a definite fracture. There is a marked discoloration of the left eyeball from recent hematoma or in plain English, a blood clot; in other words, he had a black eye. There were no other disfiguring marks noted about the head, neck or face * and then as to his eyes, both pupils react to light. That is one of the tests we do to see whether it contracts to light and it did it perfectly normal, but there is a very definite impairment of vision in the left eye. The patient is unable to see a light or count fingers unless the hand and light are held above the forehead, that is, if I may explain that, he was lying sort of propped up in bed and when you took your light and held it down here below his eye saw the fingers, he didn't seem to see it but as you got up here (indicating) he could see it perfectly distinctly and my notes say there is apparently some loss of vision in the lower half of the left eye whereas vision in the upper half of the eye is normal and vision in the right eye apparently is normal to rough tests, that is, such as you do with your finger or your light. * The patient suffered the following injuries: Lacerations and abrasions of the face; some impairment of vision of the left eye; * He may have some permanent disturbance of his vision. More accurate prognosis could be given at a later date. * After I had finished my examination, my questioning and my examination which took approximately fifteen minutes, I remember very distinctly Mr. Severance going over to Mr. Backus, to the side of the bed and taking out one of his cards and saying, ‘Well, now when you get to feeling all right and want to talk settlement, why, let me know and I will come and see you,’ and Mr. Backus said, ‘I am ready to talk settlement now,’ and Mr. Severance said, ‘Well, do you know what you want?’ and he said, ‘Yes, I want a thousand dollars for my injuries and a new motorcycle,’ and about that time Dr. Grindell, the Naval Doctor, and I went out into the ward. We had finished—I had finished my work and went out.”

To support a finding of fraud, evidence of fraud must be clear and convincing. The quoted evidence is not sufficient to support a finding of fraud or concealment on the part of defendants' representatives in concealing knowledge of injury to the optic nerve. The optic nerve is not mentioned in the evidence. There is nothing in the evidence to support the finding that the examination disclosed to Dr. Findley that plaintiff had suffered “permanent and progressive injuries to the optic nerve” and that this information had been concealed from plaintiff as it is not established that Dr. Findley knew of any injury to the optic nerve. The finding on fraud and concealment is unsupported by the evidence. Dr. Grindell, the only person present at the examination who could have contradicted the quoted evidence of Dr. Findley and Mr. Severance on this question, did not testify.

As the case should be tried again we should briefly consider the sufficiency of the findings on the question of contributory negligence which was interposed as a defense.

The trial court found the intersection was an obstructed one as defined in subsection (4) of subdivision (a) of section 511 of the Vehicle Code, St.1935, p. 177. It found that plaintiff entered the intersection at a speed of 25 miles an hour. It then found that “Plaintiff's negligence was not a proximate cause of the collision and was remote.” This is neither a complete nor a satisfactory finding on the question of contributory negligence.

The judgment is reversed.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.