CASEY v. PROCTOR

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District Court of Appeal, Second District, Division 3, California.

William CASEY, Plaintiff and Appellant, v. Robert Charles PROCTOR, Defendant and Respondent.*

Civ. 25716.

Decided: June 20, 1962

Harney, Drummond & Fitzwater, Los Angeles, for appellant. Murchison, Cummings, Baker & Velpmen and Henry F. Walker, Los Angeles, for respondent.

The present action was instituted by William Casey against Robert Charles Proctor for the recovery of damages for personal injuries sustained in a collision of automobiles. On April 18, 1959, plaintiff, a Catholic Priest, operating his automobile, was stopped in traffic. His car was struck in the rear by one driven by defendant and was propelled into another car. Plaintiff was insured by Motors Insurance Corporation. Proctor's insurance was carried by Hardware Mutuals Insurance Company. Two days after the accident plaintiff took his car to a repair shop and made out a report of the accident in which he stated he had not been injured but that he expected to recover for the damages to his car. The car was repaired at a cost of $490. Motors Insurance sent receipted bills for the repairs to Hardware with a letter stating that Proctor was at fault in the accident. Hardware sent a check for the amount to Motors together with a release which it requested Motors to execute and to have executed by the persons in plaintiff's car. The release was executed by Motors and by plaintiff May 11, 1959, plaintiff's signature being witnessed by two friends. Apparently, plaintiff's insurance for collision damage was subject to a deduction of $100, which he evidently paid toward the repairs. He was reimbursed in this amount by Motors. The present action was brought March 16, 1960. It was alleged in the complaint that in the accident plaintiff received severe and serious injuries to his person, and damages were sought in the amount of $50,000. Proctor answered, denying negligence and asserting as a special defense the above mentioned release, a copy of which was attached to the answer. By a pretrial order based upon joint pretrial statements, the court directed that the special defense of the release should be tried first to a jury and that if the release should be held invalid further trial would be before a different jury. This issue was tried, the court directed the jury to find that the release was valid and binding, a verdict was returned as directed and judgment was entered for the defendant. Plaintiff appeals.

The ground of the appeal is that the release was executed under mistake of fact in that it was not known to plaintiff that he had sustained bodily injury, and it was his intention to effect a settlement of his claim for property damage and not for any bodily injury he may have suffered.

No claim was made by plaintiff upon defendant on account of personal injuries, and the demand of Motors Insurance upon Hardware Mutuals was for property (collision) damage for which plaintiff was insured by Motors.

Plaintiff was not contacted by defendant or his insurer. No representation was made to plaintiff by any one for the purpose of inducing him to execute the release. Plaintiff was competent to understand the release, and he executed it voluntarily. The release read in pertinent part: ‘I/we, being of lawful age, do hereby release, acquit and forever discharge ROBERT C. PROCTOR of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown bodily injuries and property damage resulting or to result from an accident that occurred on or about the 18th day of APRIL 1959, at or near 9065 ROSECRANS, PARAMOUNT, CALIF. I/we hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries. * * * It is understood and agreed that this settlement is a compromise of a doubtful and disputed claim, that the payment is not to be construed as an admission of liability, and that liability is expressly denied by the party or parties released.’ Immediately above the signatures of Motors Insurance and plaintiff there appeared in bold type: ‘CAUTION! READ BEFORE SIGNING.’ Plaintiff had the release in his possession several days before he signed it. He did not testify that he failed to read the release, but that he could not say that he did read it; he ‘probably’ read the cautionary words that appeared above the signatures. He also testified that it was not his intention to release any claim that he might have for personal injuries. After the accident he suffered some pains in his neck and in July, upon consulation with physicians and as the result of X-rays taken, he learned that he may have suffered a broken vertebra in the accident. With respect to his condition resulting from the accident, he testified: ‘I would say that for quite a few days after the accident I was completely shook up, to use an ordinary colloquialism. My nerves were completely shattered, but I controlled them as best I could.’ Asked whether he read the papers every day from the time of the accident, he replied: ‘With great difficulty. * * * Things involving deep thought were beyond me.’ He testified that at an unspecified time he was called as a witness by the owner of the car into which his car was pushed and when then asked about his physical condition after the accident he replied: ‘Well, I am all shaken up. Probably * * * I forgot exactly particularly how I said it—‘Some muscles hurt’ and ‘I feel all aches.’ My idea was there was nothing broken. * * * Well, to answer that question, your Honor, I explained that had I known—I knew I was sore and very sore and hurt, but I distinguish between fractures and strains and pulls of muscles. I knew very well that I was—I wouldn't use the word ‘injured,’ but I was hurt, which I felt that I could fight and get rid of as time went on with regard to these sore muscles, and so on.' He further testified that he had had difficulty with his neck from the time he was 18 or 19; during the five years previous to the accident he would have had trouble if he had played a game of Rugby; the pain was infrequent, a little more than once a month. Immediately following the accident and up until the date the release was signed, the neck pain differed substantially from what it had been before. ‘Well, it differed in this sense: that it seemed to hurt me a little more especially trying to sleep, but it wasn't very much up to that.’ He first consulted a doctor July 2, 1959; he had had X-rays of his neck before the accident and because of the pain in his neck he had consulted chiropractors.

There are several propositions that are well established.

One who knows he has been injured in an accident and executes a release which is induced by undue pressure exerted by the releasee, or by other conditions, which render his consent to the release involuntary, is not bound thereby. Relying upon this rule plaintiff cites the following cases: Jordan v. Guerra, 23 Cal.2d 469, 144 P.2d 349; Meyer v. Haas, 126 Cal. 560, 58 P. 1042; Union Pacific R. R. Co. v. Zimmer, 87 Cal.App.2d 524, 197 P.2d 363; Backus v. Sessions, 17 Cal.2d 380, 110 P.2d 51; Megee v. Fasulis, 57 Cal.App.2d 275, 134 P.2d 815; Matthews v. Atchison, T. & S. F. Ry., 54 Cal.App.2d 549, 129 P.2d 435; Gambrel v. Duensing, 127 Cal.App. 593, 16 P.2d 284. The rule has no application to the admitted facts of our case.

One who signs a document freely and voluntarily which he is capable of understanding, cannot be heard to claim afterwards that he did not read the document and did not understand what he was signing. (Knox v. Modern Garage etc. Shop, 68 Cal.App. 583, 229 P. 880; Smith v. Occidental etc. Steamship Co., 99 Cal. 462, 34 P. 84; 12 Cal.Jur.2d 262, § 61.) Clearly, this is such a case.

One who knows that he has been injured in an accident and who freely and voluntarily accepts a settlement and executes a release which is specific as to all claims of whatsoever nature based upon injury sustained in the accident, is bound by the release even though the extent of his injury is unknown to him and turns out to be more serious than he at the time believed or suspected. (Berry v. Struble, 20 Cal.App.2d 299, 66 P.2d 746; Kostick v. Swain, 116 Cal.App.2d 187, 253 P.2d 531.)

Section 1542 of the Civil Code reads 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 question then is whether the release executed by plaintiff was general or special.

Plaintiff testified that it was not his intention to release any claim he might have for personal injuries. If what he signed was a general release his testimony as to his intention would have been material and relevant. If it was a special release his testimony was incompetent as an attempt to show that his undisclosed intention was contrary to the clear and express terms of the release.

Upon this point plaintiff says: ‘Plaintiff submits that the release herein was specific and only covered property damage and therefore was no bar to the action for personal injuries and plaintiff was thereby entitled to a directed verdict, or the release was a general release and under Civil Code Section 1542 the same does not apply to injuries which were unknown to plaintiff at the time he executed the release.’ Plaintiff does not tell us how the release could be specific with respect to property damage and general as to bodily injury.

It is true that the release contains general language. It refers to all claims, all actions, etc., and all known and unknown bodily injuries and property damage, but it specifies also all claims and demands of whatsoever nature ‘on account of, or in any way growing out of, any and all known and unknown bodily injuries and property damage resulting or to result from an accident that occurred on or about the 18th day of APRIL 1959, at or near 9065 ROSECRANS, PARAMOUNT, CALIF.’ etc. The release was no less specific as to bodily injuries than it was as to property damage. And to say that it was not a specific release of liability for all unknown as well as known injuries is to deny that there can be a valid release of liability for injuries that are at the time unknown. Of course, there can be no specification of unknown injuries.

For the proposition that the release was general, plaintiff cites O'Meara v. Haiden, 204 Cal. 354, 268 P. 334, 60 A.L.R. 1381. For the sum of $250 O'Meara had signed a release of all actions, causes of action, claims and demands sustained by him in consequence of an automobile accident ‘in which my minor son, Herbert was injured.’ About nine months later the boy died from injuries sustained in the accident. In an action brought by the father it was held that the release did not bar a suit based upon his son's death. This ruling was upheld on appeal for the reason that it was a general release within the meaning of section 1542.

Other cases giving effect to section 1542 as applied to general releases are Backus v. Sessions, supra, 17 Cal.2d 380, 110 P.2d 51; Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876; Gambrel v. Duensing, supra, 127 Cal.App. 593, 16 P.2d 284.

In Berry v. Struble, supra, 20 Cal.App.2d 299, 66 P.2d 746, Kostick v. Swain, supra, 116 Cal.App.2d 187, 253 P.2d 531, Dobler v. Story, C.C.A. (9th Cir.) 268 F.2d 274, releases such as we are considering were held to be special and the holding in O'Meara was declared to be inapplicable.

It is immaterial that the amount paid plaintiff was the cost of the repairs, and no more. It was not necessary that a consideration be paid for the release from liability for bodily injury. That feature of the release was not required to be supported by a consideration. (Civ.Code § 1541.)

Dobler v. Story, supra, C.C.A. (9th Cir.) 268 F.2d 274, is directly in point. After an accident Mrs. Dobler experienced headaches and pain in her neck; for the sum of $330.80 she executed a special release almost identical with the one in the present case. Soon thereafter an examination disclosed additional injuries. In her action for damages the release was held not to be binding upon her and she was awarded substantial damages. Upon appeal the judgment was reversed. The court stated: ‘Our review of the decisions cited in the briefs and our own research has led us to the conclusion that the law of the State of California in an action at law is that when a person, not under legal disability, has the opportunity to read and has a capacity for reading and understanding a plain unambiguous instrument signs it, he is bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding, in the absence of any relationship of trust or confidence between the parties or in the absence of fraud, imposition, deceit, misrepresentation or like conduct practiced by the other party to the transaction.’

We think a study of the California cases can lead to no other conclusion. We must hold that by executing the release under the circumstances, plaintiff foreclosed himself from thereafter asserting that he did not intend to release defendant from liability for bodily injuries then known or that might thereafter be discovered. It was not error to direct a verdict for defendant upon the special defense.

The judgment is affirmed. The purported appeal from an order directing verdict is dismissed.

SHINN, Presiding Justice.

FILES, J., concurs. FORD, J., does not participate. Hearing granted; DOOLING, J., sitting pro tem. in absence of WHITE, J.