Johnson v. Pickwick Stages System

DOOLING, J.,

pro

tem.

Defendant Pickwick Stages System appeals herein from a judgment recovered against it for personal injuries received by respondent Johnson as a result of a collision between one of appellant’s stages and a Buick automobile driven by Gordon M. Snyder. Snyder was originally joined with appellant Pickwick Stages System as a defendant, but before the trial respondent Johnson dismissed his action against Snyder and went to trial only against appellant Pickwick Stages System.

Because of the dismissal of Snyder and the execution of the agreement by respondent Johnson which is hereafter set out appellant claims that there had been a settlement and release of Johnson’s claim against Snyder which barred his cause of action against appellant or at least that there was evidence sufficient to go to the jury on that question.

At the time of trial appellant filed a supplemental answer alleging a settlement and release of Johnson’s claim against Snyder and the issues raised by this supplemental answer were first tried. Appellant offered in support of its plea in bar a document in the following language:

“In consideration of the payment to me of the sum of $10.00, a receipt whereof is hereby acknowledged, I hereby undertake and agree that on the payment to me at any time on or before April 15, 1929, of the further sum of $2,500.00

[282]

I will execute and deliver to Gordon M. Snyder a covenant not to sue him upon any claim or cause of action that I may have against him, arising out of a certain accident’ which occurred in the state of California, on the highway known as Pacheco Pass, between the towns of Los Banos and Gilroy, on or about the 10th day of May, 1927, and which alleged cause of action has heretofore been sued upon by me in said action commenced in the superior court of the county of Santa Clara, state of California, entitled

Elmer N. Johnson

v.

Pickwick Stages System,

a corporation, and Gordon M. Snyder, being action No. 35233 in said court, and which action has heretofore been dismissed by me as against the defendant herein, Gordon M. Snyder, without prejudice; said agreement or covenant not to sue to be in the form annexed hereto and made a part hereof and marked Exhibit ‘A.’ Said payment to me shall be made to my attortorney, Lewis H. Smith, at his office at Los Angeles, California, and may be made to him in the form of a check or draft, the payment o.f which is guaranteed by Paul Nourse. In the event I shall refuse to execute said, covenant not to sue, then upon payment of said money to said Lewis H. Smith, this agreement shall be deemed to operate as such covenant and the terms of Exhibit ‘A’ shall be binding on me as if then executed.”