Darlington v. Basalt Rock Co.

DRAPER, J.

Does denial of a motion to vacate an order approving compromise, made after full hearing and affirmed on the merits on appeal, bar a subsequent action in equity, on the same grounds, to set aside the same order of compromise ? That is the question here presented.

On September 26, 1951, when he was 17 years old, plaintiff was a passenger in an automobile driven by another minor in Napa County. That ear collided with a truck of defendant Basalt Rock Company, Inc. Plaintiff suffered severe injuries to his right arm and right foot. The arm was amputated. Thereafter, on December 27, 1951, plaintiff’s father sought and obtained approval by the Superior Court of Napa County of compromise of plaintiff’s claim for $4,900. It is clear that

[707]

the settlement was recommended in the belief that liability could not be established.

On September 27, 1955, slightly more than five months after he became 21, plaintiff filed a motion to vacate and set aside the order approving compromise. The grounds were that plaintiff’s then attorneys had not independently investigated the facts of the collision, but had negligently relied upon false representations of Basalt’s agent that the facts showed no negligence of Basalt or its driver, and that the attorneys had mistakenly assumed that the injury to plaintiff’s foot was not permanent in character. The order refusing to set aside the compromise was affirmed

(Darlington

v.

Basalt Rock Co., Inc.,

157 Cal.App.2d 575 [321 P.2d 490]) in an opinion which fully reviewed the showing made to the trial court.

Two months after that appeal was taken, but before its decision, the present action was filed against Basalt, Glens Palls, its insurer, and Gallagher, an adjuster for the insurer. The earlier record had shown Gallagher to be the agent whose allegedly false representations had been asserted in the motion to vacate. The complaint alleges that the collision of 1951 was caused by the negligence of Basalt and its driver, and sets out the facts of the compromise and release. It is alleged that the then attorneys for plaintiff’s father negligently failed to investigate the facts but relied upon the fraudulent representation of Gallagher, acting as agent of Glens Palls, as to facts showing a lack of liability. The allegations also suggest that the full extent of the injuries was not known by the father or the attorneys at that time. The prayer is that the order affirming compromise be vacated, the release rescinded, and that plaintiff have judgment for damages for his injuries.