Vance v. De Long

BISHOP, J. pro tem.* The plaintiff appealed from the judgment, awarding him nothing, that followed as a matter of course a jury’s verdict of “for the dependant . . . and against the plaintipf . . . .” On his appeal he makes but one contention that the trial court prejudiced his case before the jury by the giving of a certain instruction. The plaintiff has failed, however, to make any of the evidence a part of the record on appeal, so we are in no position to judge, first, if it was error to give the instruction and, then, if it was error, whether it was prejudicial, warranting a reversal. As a consequence, we are affirming the judgment.

The action is one in which the plaintiff sought to recover over $125,000 occasioned by an accident allegedly caused by defendant’s negligence. The defendant not only denied the negligence but pleaded four affirmative defenses, the fourth being a complete release executed by plaintiff for valuable consideration paid him by the defendant. The release relied upon was in writing and was set forth in full in defendant’s answer. So far as appears, its genuineness and due execution were not denied, and so stood admitted (Code Civ. Proc., § 448), but it could, nevertheless, without any further pleading on plaintiff’s part, be challenged on the ground of mistake, undue influence, fraud, estoppel, or other like defenses. (Sunset Milling & Grain Co. v. Anderson (1952), 39 Cal.2d 773, 777 [249 P.2d 24, 26]; Yeomans v. Lysfjord (1958), 162 Cal.App.2d 357, 361 [327 P.2d 957, 960]; and cases cited.)

We infer from the instructions given which are before us that the only issue submitted to the jury, was the matter of the release, a procedure authorized by section 597, Code of Civil Procedure.

It is conceivable that an instruction might be so far out of line that it should be held, on appeal, that a party had been [691]denied a fair trial, quite without regard to the evidence. The instruction complained of in this case, however/-is not such an instruction. It was in these words: “The writing or writings wSl constitute the contract of the parties, and one his merely party is not permitted to escape from/its obligations/by showing that he did not intend to do what his words bound him to do.” (Brant v. California Dairies, Inc. (1935), 4 Cal.2d 128, 134 [48 P.2d 13, 16].) How are we to say that, under the circumstances of this case, the instruction should not have been given, and that it was prejudicial error to do so? We can not. For all that the record shows the plaintiff failed to produce any evidence that impaired the effect of the release. He may have testified that it was his counsel who made the offer to settle; the amount received was that set by him; and that the wording of the writing was prepared by his counsel and discussed with him (the plaintiff) before it was signed by him. Plaintiff’s only defense against the release may have been his testimony that in spite of what he signed, he did not actually intend to release the defendant from his entire claim, but only to accept the sum paid as a settlement pro tanto.