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District Court of Appeal, Fourth District, California.


Civ. 3059.

Decided: April 13, 1943

W. H. Stammer and Galen McKnight, both of Fresno, for appellant. L. M. Linneman, of Dos Palos, and Rae B. Carter, of Fresno, for respondent.

This action is one for damages for the death of respondent's infant son, alleged to have resulted from the negligence of appellant in operating an automobile upon appellant's own private premises. The complaint sought general damages in the sum of $15,000 and in paragraph III thereof prayed for special damages in the sum of $68.10 for funeral and interment expenses. Appellant denied that he was negligent, alleged contributory negligence on the part of the child's mother, and pleaded a signed, written release executed by respondent which, by its terms, released appellant from all liability arising out of the accident. The case was tried in two parts before two different juries, under section 597 of the Code of Civil Procedure. The first trial, upon the special defense alleging the release, resulted in a verdict for respondent. The second trial, upon the merits of the action, resulted in a verdict and judgment in favor of respondent in the sum of $1,000. At each trial appellant moved for a judgment notwithstanding the verdict Both motions were denied. Appellant appealed.

It is appellant's position on this appeal that the trial court erred in denying each of the motions for judgment notwithstanding the verdict. Appellant does not rely for a reversal of the judgments against him upon any other claimed error committed by the trial court in connection with the admission of evidence or the instructions to the jury. Neither party desires nor requests that the case be remanded for new trial. Appellant concedes that if the trial court acted correctly in denying appellant's motions for judgment notwithstanding the verdict the judgments should be affirmed, but suggests that if the trial court erred in denying those motions the judgments should be reversed and judgment should be directed for the defendant, thereby terminating the litigation. Barthelmess v. Cavalier, 2 Cal.App.2d 477, 38 P.2d 484; sec. 629, Code Civ.Proc.

On November 15, 1940, Paul Guerra was the owner of a small ranch near Dos Palos. On that date, and for four days prior thereto, respondent's wife, Thelma Jordan, was and had been picking cotton on appellant's ranch. She had also picked cotton on that same ranch one day during the previous month. Mrs. Jordan had been employed to pick the cotton by one Mrs. Frediani, appellant's next–door neighbor, who had an arrangement with appellant whereby her husband furnished a trailer and pickers to pick appellant's cotton and was paid by appellant. On the date of the accident the appellant knew the cotton was being picked, but he did not know and had never met nor seen Mrs. Jordan. He testified that he did not personally employ her and did not even know that she or any member of her family was on the premises. On the morning of the accident, appellant left his ranch to go to Dos Palos. Mrs. Jordan arrived in her car at his ranch soon thereafter. She drove her automobile into appellant's private driveway and parked it under some eucalyptus trees directly in front of the garage where appellant ordinarily kept his automobile. With her were her fourteen–months–old baby, Murvian Jordan, and her two other children, who were three years and four and one half years of age. When she went to the field to work, which field was immediately south of the driveway in question, she placed the baby in the front seat of her parked automobile and permitted the other children to play in and around appellant's driveway. Mrs. Jordan testified that on the one day she worked at appellant's ranch during the previous month, she received permission from Mrs. Guerra to park her automobile in the driveway. Both Mr. and Mrs. Guerra testified that they did not grant her any such permission. Mrs. Jordan left the baby, Murvian, in her parked automobile all that morning, except for short periods of time when she was there to watch him, and during that time the baby seemed happy and satisfied in the automobile. However, after lunch, before returning to the field, Mrs. Jordan took the baby from the automobile and left him sitting upon the ground with his back against one of the trees along the driveway. The yard adjoining the driveway was covered with sharp gravel. The baby was fourteen months old and could creep but could not walk. Mrs. Jordan testified that since the baby could only creep she felt assured that it would not crawl over the hard gravel. She left the baby unattended while she was picking cotton in the near–by field. Her two older children were playing in the yard some distance away but they were too young to watch the baby. At two o'clock that afternoon appellant returned from Dos Palos to his ranch and drove into his driveway at a very slow speed. He drove around one parked automobile owned by a lady who was in the house visiting appellant's wife. He then saw for the first time Mrs. Jordan's automobile parked in the driveway a few feet beyond the other automobile and under the eucalyptus trees. Appellant saw the two older children playing in a sand pile across the yard and beyond the driveway, but did not see the baby. He testified that he had no knowledge whatsoever of the baby's presence in his driveway. Appellant usually parked his automobile under the same trees under which Mrs. Jordan had parked her automobile, and in order to park at that place on the day in question appellant drove around Mrs. Jordan's automobile. In doing so he passed to the left of the Jordan automobile and turned sharply to his right, coming to a stop four or five feet in front of it, at almost a right angle to it, and with the front of his automobile about six feet from the tree under which Mrs. Jordan had left the baby. Appellant then got out of his automobile and while passing in front of it saw the baby, Murvian, for the first time. It was caught between the right front wheel and bumper of appellant's automobile and was apparently dead. There was no other witness to the accident. No one saw the baby from the time his mother left him under the tree beside the driveway until after the accident occurred. Appellant testified that he had neither warning nor knowledge that the baby was on the premises; that he was not in a position to see in front of Mrs. Jordan's automobile until he had passed around it and turned to his right in front of it, and at that time it was impossible for him to see immediately in front of his wheels from his position in the driver's seat; and that he felt no jar nor impact.

At the time of the accident appellant carried public liability insurance with the Farmers Automobile Inter–Insurance Exchange. One Goodwin was employed by that company as a claim adjuster. On the day after the accident, Goodwin received notice thereof and went to appellant's ranch to investigate the accident and to adjust the claim. After he arrived, the facts of the accident were explained to him by appellant. Thereafter, respondent was contacted by telephone at the funeral parlors, and in response to the telephone call respondent and his father, M. W. Jordan, drove to appellant's ranch. Present at the discussion at appellant's ranch were respondent, respondent's father, Goodwin, appellant, and appellant's wife, but most of the conversation was between Goodwin and respondent. There was some variance in the testimony of the witnesses as to the exact conversation there held. At this meeting respondent signed a statement which was written out in longhand by Goodwin. It reads as follows:

“State of E. C. Jordan. I am 29 years of age. * * * On Nov. 15, 1940, my son Murvian Jordan, age 15 months, was killed in an automobile accident. The car was driven by a Mr. Guerra of Dos Palos. My wife was working on Mr. Guerra's place picking cotton. My young son was taken over to Mr. Guerra's place by my wife when she went to work. Sometime around 2 o'clock in the afternoon while the child was in yard of Mr. Guerra's place it was struck by Mr. Guerra's car. I was not around Mr. Guerra's place when this accident happened, but I understand that the child was on the ground crawling around at the time of the accident in the rear of Mr. Guerra's house. As a result of the death of my child I incurred funeral bills of approximately $80.00 and some loss of time from work.

“I realize that Mr. Guerra did not intentionally run over my child and that it was an accident. Therefore, in view of such circumstances, I accept the sum of $150.00 as a compromise payment for settlement of any claim I might have as a result of this accident. I understand that in accepting this payment that is all I can get, and that I voluntarily take such sum and thereby release Mr. Guerra from all liability resulting from this accident.

“I have read and understand the two pages and they are true.

“E. C. Jordan.”

The portion italicized was written by E. C. Jordan. At the same time a release of claim (Exhibit A) was also prepared on the usual insurance company's form for release of claim and signed by respondent. It reads in part: “For ․ $150.00 ․ I ․ forever release ․ Paul Guerra ․ from all liability now accrued or hereafter to accrue on account of any and all claims or causes of action which I now or may hereafter have against said Paul Guerra * * * in any way arising from any and all injuries, losses and damages now known or that may hereafter develop” as a result of the aforementioned accident; “that I * * * accept said sum for the purpose of making a full and final compromise * * * of the injuries and damages above mentioned.” Thereafter, a draft in the sum of $150 (Exhibit B) was made out payable to respondent, which contained the following endorsement signed by respondent:

“Endorsement of this draft constitutes a release of all claims the undersigned has or may have against Farmers Automobile Inter–Insurance Exchange or the insured or any other person on account of claims or accident referred to on the face hereof.

“E. C. Jordan.”

The testimony produced at the trial of the first issue respecting the validity of the release which was at that time signed may be thus summarized: Respondent Elmer Jordan was called by appellant under section 2055 of the Code of Civil Procedure as his witness. He testified that the signature at the bottom of the release (Exhibit A) was his, and that the portion “I have read and understand this release” was in his own handwriting. Thereafter the release was received in evidence and read to the jury. He then testified that after he had signed the release he was given the draft for $150 (Exhibit B) and that the endorsement as the first payee on the back thereof was his signature. It was thereupon introduced into evidence and read to the jury. On direct examination by respondent's counsel respondent testified that in respect to the portion of Exhibit A that was in his own handwriting Goodwin asked him to write that portion in there; that he told him “word for word what to write”; that he, respondent, was unable to spell the words and that Goodwin spelled them out for him. Thereupon, appellant rested his case. The respondent then called Mrs. Jordan, who testified generally in reference to the facts surrounding the accident and death of her child as above related. She then testified that she had never seen the release signed by Mr. Jordan (Exhibit A) but that she did know that Mr. Jordan had received $150, and that she learned of that on Saturday afternoon, November 16th, the date when the release was signed and the draft was paid, which was the day following the death of the child. The child was buried on Monday, November 18th. Mrs. Jordan said that she was making approximately $2 a day picking the cotton on the appellant's ranch and that she had been working about four or five days out of the week for five weeks in picking cotton in that vicinity; that she then had no money on hand at all, no bank account, no property of any kind from which an income could be received, and that she had saved nothing from her wages; that on the 16th day of November, 1940, she was “in distress as the result of the death of ‘her boy’,” i.e., she “was very nervous.”

Appellant Paul Guerra, called as a witness on behalf of the respondent under section 2055 of the Code of Civil Procedure, testified generally in respect to the accident. He then testified that on the morning following the accident the insurance adjuster, Mr. Goodwin, called at his home; that after a short conversation someone called Mr. Jordan at the undertaking parlor; that a few minutes thereafter Mr. Jordan and his father came to his home as above related; that the adjuster asked them what they intended to do about the accident and that they didn't say anything; that “they said that they was sorry that there was an accident and they didn't have any money, and they said they would be satisfied with the funeral expenses;” and that he did not take part in any of the conversation. In appellant's deposition, offered in evidence by respondent, Paul Guerra testified that Mr. Goodwin told respondent that he was there to speak for appellant because appellant was not in any condition to have anything to do with the settlement; that he was “all worried all to pieces”; that he was an insurance adjuster and that was his business. He testified then in his deposition that Mr. Goodwin conversed with respondent; that Goodwin paid them the money, and they agreed to sign; that Goodwin wrote something and read it to them, and that they then read it and said it was all right and that they were more than satisfied; that Goodwin asked them “how much would it be, the expense,” and that “they said that they just left the undertaking parlor and so much for the burial and so much for the clothes and it amounted around an even $100”; that Goodwin then said “I will do better than that––you are going to lose a few days work––I will give you $150”; that they were more than glad to take it and that was substantially all that was said at that meeting; that they left to see if appellant's brother would not cash the draft due to the fact that the bank was about to close; that Mr. Jordan and his father then shook hands with him, and told him “there was no hard feelings, that it was an accident”; “They was more than happy and glad for what Mr. Goodwin done, too.” He then testified that the draft was written up by Goodwin in his house and handed to respondent, who followed them down where the draft was cashed. He testified that Goodwin did not spell the words out to respondent which were written by him in his signed release (Exhibit A).

Elmer Jordan, respondent, was then called as his own witness and he testified generally as follows: that at the Guerra home, when he signed the release, he felt the effects of “mental distress” caused from the death of his child; that Goodwin said that Mr. Guerra was not capable of taking care of his own business and so he was there in behalf of Mr. Guerra; that he wanted to know about how much the funeral expenses would be; that he told him around $75 or $85; that he said that he was there in behalf of Mr. Guerra, and that he wanted to help out and that he asked him “what did I think would be right and I told him I was out some time, of course, and around $90 or $100”; and he told me if I got $85 “I would be getting in dangerous territory”; that finally he asked him what he thought would be right and he told him around $100; that he said “Well, I will do better than that. I wil give you $150”; that Mr. Guerra said that he was rather upset, that he smoked a carton of cigarettes that night; that Guerra did not have anything to say; that Goodwin presented some papers for him to sign and he signed two of them and wrote something on each of them; that he did not read either instrument or any part of them; that Goodwin did not explain to him what his signature on the papers meant except he understood it “to help out in the funeral expenses.” He then testified that he had no money saved in the bank or elsewhere at that time and no property or income other than his wages, which amounted to about $50. The deposition of Elmer Jordan, previously taken, was then read into evidence. In the deposition Jordan testified that at the Guerra home Goodwin started talking, asking him “what the damage would be, how much the expense, funeral and burial expenses would be, in order to make a settlement”; that he asked respondent “if around $75 or $85,––he says ‘if you get over that you will be in dangerous territory’ ”; that he also said “now you know that you are on Mr. Guerra's premises here, that Mr. Guerra has a perfect right here”; and he then asked him how much he really thought he would be out; that he finally told him around $100; that Jordan, Sr., spoke up and said “that we didn't come down here prepared to talk to any attorney or anything like that”; that Goodwin said “I am not an attorney. I don't have any license or anything like that to practice law––I am just down here in behalf of Mr. Guerra”; that “Guerra had agreed to pay $50, whatever was right, on the funeral expenses”; that he asked him then “how about $100” and he said “ ‘I will even do better than that, I will give you $150, although,’ he says, ‘that is more than anyone I ever knew of getting’ ”; that he did not remember whether he told Guerra there that day that he knew it was an accident and could not be helped, but he did tell him that he “didn't hold anything against him on account of the accident”; that he did sign the release but did not know Goodwin represented an insurance company.

In regard to his educational qualifications, he testified in his deposition that he reached the Seventh grade in school; that he was able to read and write, and that his eyesight was good; that he read part of the paper he signed; that he looked some of it over to see what it was and what it said; that he looked at the draft when he took it and that Goodwin explained to him it was a draft rather than a check; that he was “satisfied to take $150 in settlement of the case at that time” and that he “did take $150 in settlement of the case”; that although he did not know Goodwin was an insurance man, he “understood the things he told” him; that although he was sad, he was not in such a state of mind that he was not able to recognize people and know what they said; that he knew when he “signed this release” he was “releasing Mr. Guerra from all liability in connection with the accident”; that since receiving the $150 and signing the release he never had offered to return the $150 to Mr. Guerra or anyone else. On cross–examination, however, he testified that he asked Mr. Linneman, his attorney, to make the offer for him. In regard to the statement (Exhibit C) he admitted signing it and then testified that he did understand the portion he wrote on that instrument. The instrument was then read to the jury. On cross–examination by his own counsel respondent testified that he did not know that he had any claim other than for funeral expenses and loss of time; that he did not understand that he was releasing appellant from any claims other than the funeral expenses and loss of time; that he lost seven days' time at $3.50 per day.

Mark W. Jordan was then called as a witness on behalf of the respondent. He testified that at the home of Mr. Guerra no mention was made of any insurance company; that Goodwin said Guerra was not capable of attending to business and that Mr. Guerra wanted to do the “thing that was right and settle with us in the sum that was reasonable to help put away this child, assist us” and that he asked the respondent “how much he had been out,” and he told respondent: “Now, if you go over $80 or $85––why you are getting in dangerous territory”; that the respondent told Goodwin he “would be out about $100,” and Goodwin said “ ‘You are right, but we are going to do a little better than that, we are going to give you $150, and that is more than I would give anyone again’; that we were to bear in mind that we were on Mr. Guerra's premises, that the boy was at the time, see, of this accident.” On cross–examination this witness testified that after Goodwin made out the release he read it to him in the presence of respondent.

Mr. Linneman, counsel for respondent, then testified that in the latter part of November, 1940, he discussed the facts and circumstances of this case with respondent; that he wrote to the insurance company involved and offered to repay the sum of $150. A copy of the letter was then received in evidence. It reads in part (Exhibit 2):

“November 29, 1940.

“Farmers Automobile Inter–Insurance Exchange,


“On November 15, 1940, the infant child of Elmer Jordan and Thelma Jordan of this city, was killed by an automobile being driven by Paul Guerra, whose automobile is covered by public liability insurance in your company.

“On November 16th, in consideration of the sum of $150.00 an adjuster of your company obtained the signature of Elmer Jordan, as I am advised, to a release upon forms furnished by your company.

“It is the view of Mr. and Mrs. Jordan, the mother and father of this child, that the sum paid was completely inadequate, and you are hereby advised that such release and settlement is hereby rescinded. I now hold the sum of $150.00 and I hereby tender return thereof to you upon cancellation and surrender of the aforementioned document, and you are advised that said sum will be immediately forwarded to you upon notification of your willingness to accept the same and cancellation and return of the aforementioned document.

“If it should be your desire to negotiate for a settlement of the claim of Mr. and Mrs. Jordan upon a basis which contemplates reasonable compensation for their loss, I shall be glad to confer with you at your convenience.”

Mr. Carter, counsel for respondent, then moved to strike out of paragraph III of his complaint the allegation pertaining to a recovery for $68.10, cost of interment and funeral expenses. After some argument the motion was granted.

In rebuttal, appellant called Goodwin, the adjuster for the insurance company, as a witness. He testified generally that at the Guerra home he did not believe that he told respondent at first that he represented an insurance company; that during the discussion he did not know anything about the financial condition of the Jordan family; that the respondent was “possibly depressed, but was fairly calm for a man under the circumstances of having lost his child”; that he asked Jordan if he knew how the accident happened or how it occurred and that he told him that he was not at the Guerra place at the time it occurred, but that his wife had told respondent how it happened; that Jordan then related what his wife had told him in reference to the accident; that he then asked Jordan what “expense he would incur as a result of the accident and he informed me that he would have a funeral bill somewhere in the neighborhood of $78 to $80, and that he would lose a few dollars from work”; that just about that time in the proceedings Jordan, Sr., mentioned the fact that they had not consulted an attorney before coming out there; that he told them he was not an attorney and was at Guerra's place on behalf of and representing Guerra's insurance carrier, and that was his reason for being there; that an accident had been reported in which his car was involved and that they carried the insurance and that it was his business to look after it; that thereafter Jordan continued to discuss the matter of settlement with him; that he asked him what he wanted to do about the situation and to see if it would be possible to make a settlement; that he asked him what he would take “for a settlement, for a complete settlement of the claim” and that he said: “Well, I think $100 would cover it” and that he told him he could do a little better than that; that he had authority to pay him $150 for a complete and final settlement of the claim; that Jordan seemed to be very satisfied with it and that he would take it; that he explained to him what would be the result of accepting $150 and executing a release, i.e., that it would constitute a compromise settlement; that it was a complete and final settlement, and that thereupon he drew the papers now in evidence; that he wrote them out in Jordan's presence; that he read it to Jordan or in the presence of both Jordan and his father and handed it to respondent to read; that respondent did read it in his presence; that he asked him if he understood about the release and that respondent told him that he did; that he then told him if there were any questions he would be glad to answer them; that he asked no questions; that after respondent read the documents he asked him to write the words “I have read and understand this release”; that about the same procedure followed in reference to the written statement, Exhibit C; that the conference lasted from an hour and a half to two hours.

Mrs. Guerra testified that she was present when Goodwin and respondent had their conversation about the release; that Goodwin told Jordan that he was an insurance adjuster and that it was his work to protect people who held the policies of the insurance company he represented; that she knew Jordan read the papers that Goodwin had written and she remembered him saying that everything was all right and that she saw him accept the check.

After this evidence was adduced the parties rested their case on the issues then pending. Both appellant and respondent then moved for a directed verdict. Both requests were denied. After instructions to the jury and argument of counsel, the jury returned a verdict in favor of respondent.

The respondent offered and the court gave an instruction in reference to the aforementioned release, that it was respondent's contention “that he was induced to sign his name thereto as a result of fraud and undue influence, as those terms will hereafter be defined.” (Italics ours.) At the request of the respondent the court then instructed the jury “that in determining whether or not any fraud or undue influence existed in this case, you may take into consideration the method employed by the representative of the Farmers Automobile Inter–Insurance Exchange in securing the signature of said plaintiff upon said release. Misrepresentations, if any, that were made by said agent at said time, concealment, if any, by said agent of any facts which said agent was under a duty to reveal, if any, at said time, and the inadequacy of consideration, if inadequacy of consideration in fact existed.” Sections 1572 and 1575 of the Civil Code were read defining actual fraud and undue influence. A motion for judgment notwithstanding the verdict was made and denied. We will first consider the appeal from this order.

The burden of proving fraud, duress, undue influence or mistake was upon respondent. Swartz v. Filipelle, 34 Cal.App. 695, 168 P. 574. In Wilson v. McCormick S.S. Co., 38 Cal.App.2d 726, 102 P.2d 412, 416, the appellate court reversed a judgment in favor of the plaintiff and ordered a judgment notwithstanding the verdict under facts which bore some similarity to the case at bar. The plaintiff in that case testified that he signed the release but that he did not read it because at that time he was suffering from head pains and could not think clearly. The court there said:

“Before courts will set aside solemn binding written contracts, proof of their invalidity must be clear and convincing. Were the rule otherwise, a written instrument would afford but slight protection to the parties. * * *

“Plaintiff's behavior and condition prior to and at the time the release was executed point unerringly to the conclusion that his physical and mental state was such that he formed in his own mind a determination to compromise his claim; * * *. There is neither evidence nor contention here that plaintiff could not read, but there is evidence in the record that he looked at the paper. He signed it; and the evidence falls far short of the amount required to overcome the presumption that he knew and understood its contents.”

It is true in the present case that after having testified that he was in full possession of his faculties, that he was not in fear, that he knew and understood what was being done and said, that the release was read to him, that it was given to him to read and that he read part of it, that he was able to read and write, that his eyesight was good, that he knew that he was releasing appellant from all liability in connection with the accident, and that he was satisfied with the settlement at the time, respondent was recalled to the stand by his counsel and in answer to a leading question propounded by counsel testified that he thought he was settling for the funeral expenses only. If we consider all of the testimony, as a whole, together with the execution, by respondent, of all the instruments expressly releasing appellant from all liability, it is difficult to say that there is substantial evidence in this case supporting respondent's claimed thought that he was settling for funeral expenses only. The conduct of all of the parties leads us to believe that respondent did not then think that there was still some claim which he had against appellant that was undetermined or unsettled. The original complaint signed by respondent shows that at the time he filed it he included as part of his prayer for damages a sum for funeral expenses. The releases clearly state on their face that they constitute a complete settlement of all claims, known or unknown. Respondent's claimed failure to read them in their entirety would not, in and of itself, under the circumstances of this case, be sufficient evidence of fraud or undue influence to set them aside. Haviland v. Southern California Edison Co., 172 Cal. 601, 158 P. 328; Rogers v. Atchison T. & S. F. R. Co., 38 Cal.App. 343, 176 P. 176; Hawkins v. Hawkins, 50 Cal. 558; Metropolitan Loan Ass'n v. Esche, 75 Cal. 513, 17 P. 675. The letter to the insurance company written by respondent's attorney attempts to rescind the release for the claimed reason that in “the view of Mr. and Mrs. Jordan,” the sum paid was “completely inadequate.” Nowhere in that letter is it stated that respondent did not understand that he was making a complete release of all claims, or that he thought that he was settling for funeral bills only, or that he was induced to make the settlement by reason of any fraud, duress, undue influence, or mistake.

It must be admitted that from a relation of the facts surrounding the death of the child, a very close question is presented in respect to the following questions: (1) the negligence of appellant; (2) the particular status of the child at the time as to whether he was a licensee, an invitee, or a trespasser, and what degree of care was owing to the child by appellant under the circumstances; (3) as to the contributory negligence of the mother. All of these questions are raised on this appeal. The statement of facts, signed by appellant, and as related by his wife is not at variance with the evidence as to the appellant's claimed negligence. Based upon that statement of facts it clearly appears that respondent had full knowledge of the facts surrounding the accident. There was therefore no misrepresentation as to those facts. Appellant signed the statement and said “I realize that Mr. Guerra did not intentionally run over my child and that it was an accident, * * * Therefore * * * I accept the sum of $150 as a compromise payment of any claim I might have as a result of this accident.” (Italics ours.) It is indeed difficult to harmonize this signed statement with appellant's testimony that he thought he was settling only for the funeral bills. Analyzing each claimed representation made by appellant or the witness Goodwin, separately or as a whole, we are not convinced that they are sufficiently substantial to constitute a misrepresentation of a material fact or such a misrepresentation as would constitute a fraud or the establishment of acts of undue influence sufficient to support the judgment setting aside the releases admittedly signed and executed by the respondent.

The cases relied on by respondent may be distinguished. In Carr v. Sacramento C. P. Co., 35 Cal.App. 439, 170 P. 446, the release was set aside where it was alleged and shown that the plaintiff was so enfeebled and weakened, mentally and physically, that he did not have sufficient mental capacity nor sufficient physical energy to transact the business of negotiating the alleged release and did not have sufficient mental capacity to understand the nature, purpose and effect of the alleged contract of release or of the rights arising in his favor, because of the personal injury by him sustained. Plaintiff in that case was suffering from a traumatic hysteria bordering on melancholia. Such is not the evidence here. In Meyer v. Haas, 126 Cal. 560, 58 P. 1042, the agent of appellant was also agent of the respondent. In addition to that fact, the contract was in a language that the respondent could not read. In Raynale v. Yellow Cab Co., 115 Cal.App. 90, 300 P. 991, the plaintiff testified she was in a daze during all the time the release was being discussed and when it was signed. Respondent does not claim such incapacity in this case. Wetzstein v. Thomasson, 34 Cal.App.2d 554, 93 P.2d 1028, involved the execution of a full release which plaintiff believed to be only partial when she signed it. She was assured orally by the adjuster when she signed it that the future bills would be taken care of. During the four days of negotiations by the adjuster she was in great pain, suffering from nervous shock, and a part of the time she was under the influence of opiates. Respondent has not made any such showing here.

It is an established rule of law that where it appears from the terms of a release that it was the intention of the parties to compromise a release of known or unknown claims arising from an accident, in the absence of fraud or duress, the injured person is not entitled to rescind the agreement and recover damages for injuries known or unknown at the time the release was executed. Berry v. Struble, 20 Cal.App.2d 299, 66 P.2d 746. In the present case it cannot be said that any facts were withheld from the plaintiff as to the nature of the injury to the child or the facts surrounding the happening of the accident. Any rights he may have had at that time must have been known to him when he signed the release. He apparently compromised any claimed rights he then knew of for the sum of $150. Respondent, therefore, cannot rely upon the rule laid down in, Backus v. Sessions, 17 Cal.2d 380, 110 P.2d 51.

It has also been held that total physical disability does not necessarily render a person incompetent nor indicate undue influence, in the matter of executing a release. Mathews v. Pacific Mutual Life Ins. Co., 47 Cal.App.2d 424, 118 P.2d 10. It has often been stated that before a court will set aside a release formally signed, sealed, and witnessed, proof of its invalidity must be clear and convincing. Wilson v. McCormick S.S. Co., supra.

We believe the facts in the instant case are similar to the facts in Wilson v. Zorb, 15 Cal.App.2d 526, 59 P.2d 593, 598, where it was held that the evidence was insufficient to constitute actual fraud or to show that there existed a confidential relationship upon which could be predicated a claim of constructive fraud. After reversing the judgment setting aside the releases based upon a verdict of the jury, the trial court there said, as we must say here:

“After a painstaking review of the evidence, we are convinced that a case was not presented to the jury which justified the annulment of a settlement freely made by competent contracting parties.”

See, also, Fritsche v. McCue, 42 Cal.App.2d 696, 109 P.2d 759; Bacon v. Soule, 19 Cal.App. 428, 126 P. 384; and particularly Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546, 547, which involved the status of a plaintiff, whether he was a guest or a passenger under an agreement to perform certain services. In that case the question of adequacy of consideration to support the agreement was presented. It was there said: “The consideration may be any benefit conferred or any detriment suffered * * * and the law will not enter into an inquiry as to its adequacy. * * * Moreover, where the consideration agreed has been accepted, the acceptance constitutes a waiver of any claim of inadequacy.” (Citing cases.)

In view of this determination a discussion or review of the other points raised becomes unnecessary.

The judgments and orders are reversed and the cause remanded, with directions to the court below to enter judgment for the defendant notwithstanding the verdict.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concurred.

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