Rico v. Nasser Bros. Realty Co.

NOURSE, P. J. The plaintiff, a minor, sued through his guardian ad litem for damages for personal injuries received in a theater operated by defendants when his foot was caught in the seat in front of him as another person sat down in the seat. He alleged that the injury occurred on March 26, 1936, that on March 24, 1937, he received the sum of $250 in full settlement for his injuries and thereupon gave the defendants a release in full for all damages growing out of such injuries, that said release was given by him under a mistake [880]of fact—that he believed his said injuries were temporary whereas he has since learned that they are permanent. On March 14, 1940, plaintiff rescinded the settlement and offered to return the money received under it. The defendants answered generally and, as a third separate defense, pleaded the settlement as a bar to this action. This defense was tried separately under the provisions of section 597 of the Code of Civil Procedure and the trial court found for the defendants. The plaintiff appeals from this judgment.

At this trial the defendants offered the judgment roll of the prior proceedings in the superior court showing that a verified petition was duly filed on behalf of the father of the minor, and the plaintiff herein, by his two attorneys asking leave to compromise the claim for $250, that the petition came on regularly for hearing, and was approved by a judge of the superior court on March 18, 1937. Proof was also made that the sum was paid in full and that a general release was given defendants on the same day, executed by the father, and witnessed by one of his attorneys. With this showing the defendants rested.

The plaintiff then offered to prove that neither the father nor the minor was present in court when the order of settlement was made, that no testimony relating to the extent of the injury was taken at the time, that no guardian had been appointed to represent the minor, that the injuries now appear to be permanent, that, prior to the order of settlement, the parents of the boy had consulted a physician who informed them that the ankle would soon heal, and that the father “was informed” that, unless they agreed to the settlement, they would be unable to recover anything. All these offers were rejected when the trial court granted the defendants’ special plea. Before discussing the points raised by appellant it should be noted that there is no allegation, or offer of proof, of fraud or misrepresentation, and that the only charge of mistake is that relating to the medical advice of plaintiff’s own physician.