Taylor v. Hopper

LANGDON, J.

This is an .appeal by the plaintiff from a

judgment against her, entered after a demurrer to her complaint had been sustained without leave to amend. The complaint, in substance, alleges: That in February, 1926, the plaintiff herein, in the county of Santa Clara, California, commenced an action in the superior court against the defendants herein praying for damages in the sum of $51,223.80, alleged to have been suffered by plaintiff by reason of personal injuries sustained by her by reason of being run over by defendants’ automobile operated in a careless and negligent manner; that plaintiff suffered severe injuries by reason of such alleged negligent conduct on the part of defendants; that, thereafter, on October 5, 1926plaintiff entered into a compromise agreement with the defendants by which, in consideration of the sum of $5,750, she settled and compromised said cause of action and authorized and directed the clerk of the said superior court to dismiss of record said action, so that the same would operate

[103]

as a

retraxit

of all causes of action arising out of said injuries and said action was accordingly dismissed on October 5, 1926. It is then alleged that on numerous occasions between the date of plaintiff’s injury and the date of said compromise, the defendants made efforts to compromise plaintiff’s said claim for damages, offering varying amounts in settlement thereof and “defendants and their agents made numerous attempts to falsely convince plaintiff and did finally convince her, well knowing the falsity thereof, that her injuries were not of a permanent character.” It is also alleged that during the negotiations for compromise “plaintiff was in great financial distress with no resources or credit and in great bodily pain and much distressed and confused in mind; that defendant induced plaintiff to execute said agreement of settlement and compromise by taking a grossly oppressive and unfair advantage of plaintiff’s necessities and distress and her weakened state of mind and thereby caused said release and compromise to be entered into for a grossly inadequate consideration.” It is alleged, also, that plaintiff’s injuries are permanent and that the consideration for the compromise should have been the amount asked for in the complaint filed in the original action. Plaintiff prays for $45,473.80, the difference between said amount prayed in the original action and the amount she received in the compromise.