Drumm v. Hart

STEPHENS, P. J.

Marie S. Hart was operating an automobile in a heavy fog and the machine collided with a freight train, injuring a guest passenger, Feme Drumm, who thereafter sued Mrs. Hart for damages. A jury found

[13]

for the plaintiff in the sum of $7,000 and defendant appeals from the judgment entered thereon.

The issue before us very largely lies around the effect of two written instruments, one a settlement entered into whereby Herbert H. Hart was unconditionally released from further liability and the other a sight draft for the sum of money mentioned in the settlement. The sight draft, issued by an insurance company, names H. H. Hart as the insured and Feme and Louis S. Drumm as claimants for damages received through the accident. It purports on its face to be a release for damages resulting from the accident, and is signed by both Feme and Louis S. Drumm as payees. In a like situation in

Garcia

v.

California Truck Co.,

183 Cal. 767, at 769 [192 Pac. 708], the Supreme Court said that unless the release was avoided in some legitimate way it would constitute an insuperable bar to recovery. For further authority on the point see

Tompkins

v.

Clay St. R. R. Co.,

66 Cal. 163 [4 Pac. 1165],

Hawber

v.

Raley,

92 Cal. App. 701 [268 Pac. 943], and

Chetwood

v.

California Nat. Bank,

113 Cal. 414 [45 Pac. 704].

The plaintiff sought to establish at the trial that because of the injuries sustained she was mentally unable to understand what she had signed, and that therefore the release did not bind her. There was conflicting evidence received on this point, but the court did not submit the question to the jury, instead instructing that neither of the instruments had any effect on the ease as Mrs. Hart and not Mr. Hart was the defendant. It was the evident theory of the court that the action was against Marie S. Hart and' that what affected H. H. Hart was not material or relevant, and that the receipt, though signed by plaintiff in the case, did not constitute a release from her. This was reversible error. The release receipt of the injured party on the back of the sight draft brings the case within the doctrine that payment for a settlement of an unliquidated claim for damages operates as compensation for the injuries.