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

Olga TUNKL, Executrix of the Estate of Hugo Tunkl, deceased, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Civ. 25689.

Decided: July 16, 1962

Caidin, Bloomgarden & Kalman, Beverly Hills, for appellant. Belcher, Henzie & Fargo, Leo J., Biegenzahn, West Covina, and William I. Chertok, Los Angeles, for respondents.

This action was instituted by Hugo Tunkl against the Regents of the University of California (sued as University of California) and two physicians, employees of U.C.L.A. Medical Center, a hospital operated by and under control of the Regents as a non-profit charitable institution, for damages for personal injuries resulting from the alleged negligence of the physicians. Mr. Tunkl died after suit was brought and his surviving wife as executrix was substituted as plaintiff. However, when we speak of plaintiff we refer to Mr. Tunkl.

Answers were filed denying the allegations of negligence. By amended answer the Regents pleaded as a special defense a release executed by plaintiff reading in part as follows: ‘RELEASE: The hospital is a non-profit, charitable, institution. In consideration of the hospital and allied services to be rendered and the reates charged therefor, the patient or his legal representative agrees to and hereby releases The Regents of the University of California, and the hospital from any and all liability for the negligent or wrongful acts or omissions of its employees, if the hospital has used due care in selecting its employees.’

By stipulation and pretrial statement and order plaintiff waived and disaffirmed any claim that the employees of the Regents had not be selected with due care. Likewise it was ordered that there should be tried first the question of the validity of the release. This issue was submitted to the jury. A verdict was returned, sustaining the validity of the release, and judgment was entered for the defendant Regents. Plaintiff appeals from the judgment.

The questions presented are (1) whether the exemption from future liability contained in the document entitled ‘Conditions of Admission’ was, and is, void and contrary to public policy; (2) whether the court erred prejudicially by its failure to give certain instructions requested by the plaintiff.

The hospital is maintained by the Regents for the primary purpose of aiding and developing a program of research and education in the field of medicine; patients are selected and admitted if the study and treatment of their conditions would tend to achieve the educational purpose.

Plaintiff contends that the release was void as contrary to public policy expressed in statutory law, citing section 1668 of the Civil Code which reads: ‘All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.’ He has cited no case which purports to hold that the section applies to contracts exempting one from responsibility for his simple negligence. We know of no such case, nor would we expect that any court would attempt to expand the scope of section 1668 so as to invalidate releases of liability for simple negligence.

Also plaintiff appears to advance a theory that the release in question purports to relieve the Regents from liability for violation of law and is, therefore, invalid. He does not, however, undertake to show wherein the acts of the Regents were in violation of law. There was no violation of a duty imposed by law. There was no obligation to receive plaintiff as a patient. The hospital was free to admit him or refuse to admit him, and to enter into a contract with him with respect to the terms and conditions upon which he would be admitted.

Plaintiff has cited as pertinent to the validity of the release Rogow v. United States, D.C., 173 F.Supp. 547 and Friedman v. Lockheed Aircraft Corporation, D.C., 138 F.Supp. 530. The cases are of no assistance to plaintiff. In Rogow, the court distinguished between releases from liability for negligence where the service to be rendered has been fully paid for by the releasor, in which case his purported release is ineffective, and a case in which the service to be rendered is a mere gratuity, in which circumstance the release is held to be valid. All we need say is that under this rule as applied to the facts of our case plaintiff's release would be valid and binding. No charge was made for the services rendered to plaintiff and he paid nothing. In Friedman, it was held that although the release would furnish a defense to a claim based upon negligence the evidence might disclose wilful and wanton conduct or gross negligence on the part of the defendant, in which case the release would be of no validity as a defense to the action. The rules stated in the two cases tend to establish the effectiveness of the release which Mr. Tunkl signed.

It is established that releases from liability for simple negligence are not violative of public policy. (Stephens v. Southern Pacific Co., 109 Cal. 86, 41 P. 783, 29 L.R.A. 751; Werner v. Knoll, 89 Cal.App.2d 474, 201 P.2d 45; Berry v. Struble, 20 Cal.App.2d 299, 66 P.2d 746.)

Plaintiff also cites section 1542 of the Civil Code reading: ‘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.’ This rule is not applicable. Plaintiff had no existing claim against defendants. The purpose and effect of the release were clearly expressed. Plaintiff signed it without reading it. There is no basis whatever in the evidence for a claim that the general terms of the release were broader than plaintiff intended them to be. Plaintiff testified that he did not intend to give any release at all, but this lack of intention would not make section 1542 of the Civil Code applicable. It cannot be questioned that the terms of the release related to the negligent acts or omissions of the employees of the hospital in the course of treatment to be furnished Tunkl as a patient as well as to other negligent conduct. We do not attempt to say what acts would be classed as ‘wrongful.’ Only negligence is charged.

It is contended further the plaintiff was not informed that the paper he signed called ‘Conditions of Admission’ contained a release. He was handed papers with the statement: ‘Sign here and I'll rush you right up to the room.’ It is not contended that plaintiff was prevented from reading the admission papers, nor does it appear that he was even curious as to their contents. He had been a patient in the hospital during the previous month. Upon his second entry he remained in the hospital from June 11 to September 27. He made no inquiry as to the contents of the papers he had signed. Plaintiff does not contend that his consent to the terms of the release was for any reason given involuntarily. He was not an emergency case. He was not reluctant to sign the papers, and no doubt understood it was customary procedure. It is immaterial that plaintiff did not read the admission papers.

The rule is well established that one who is capable of reading and understanding a document, who executes it freely and voluntarily without reading it, cannot be heard to say afterwards that he did not understand or agree to the terms and conditions of the writing. (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; Dobler v. Story, C.C.A. 9th Cir., 268 F.2d 274.) The special verdict of the jury was justified by the evidence.

Plaintiff advances the further contention that the court erred in refusing to give five instructions which he requested. These instructions are identified by reference to pages of the report's transcript. We are not informed in plaintiff's brief as to the subject matter of the several instructions, nor are we furnished with any argument as to why the instructions should have been given; neither are we informed that the matters to which the instructions related were not covered by instructions that were given. Under these circumstances we will not make a study of the instructions in a search for possible error in their refusal.

The judgment is affirmed.

SHINN, Presiding Justice.

FORD, J., concurs. FILES, J., concurs in the judgment.