Meyer v. Haas

0. —Action for injuries to the person. Defendants appeal from a judgment in plaintiff’s favor for fifteen hundred dollars and from an order denying a new trial.

The plaintiff fell into an insufficiently guarded elevator shaft which was maintained by defendants near the middle of the sidewalk immediately in front of their place of business in the city of Los Angeles. The result of his fall was three or four broken ribs and internal injuries apparently of a nature to permanently disqualify him for the performance of hard work, such as he had previously been accustomed to. The defense principally relied on at the trial was a settlement and discharge of appellant from all claim for damages. The plaintiff was a German and spoke and understood the English language imperfectly, and could not read it at all. The defendants employed Carl Kurtz as a physician to treat plaintiff’s injuries. This physician also acted as the agent of appellants in the settlement relied on as a defense. The evidence shows that on their behalf he paid plaintiff twenty-five dollars and secured his signature to a receipt prepared by appellants, which receipt is as follows:

"Received of Haas, Baruch & Co., the sum of twenty-five dollars, in full satisfaction and discharge of all injuries of every kind, nature, and description sustained by me by reason of having fallen down their sidewalk elevator shaft on Los Angeles street, near Aliso, on November 5, 1897, and in full satisfaction of my loss of time by reason of said accident, the said Haas, Baruch & Co. having provided me with medical attendance during my illness pursuant to said accident. And this is to be a receipt in full of all claims of every kind, nature, and description which I have against said firm by reason of any injuries sustained by me, or time lost by me, by reason of said accident.

“Dated Los Angeles, November 24, 1897.

“(Signed) GEORGE MEYER.

“Witness: Carl Kurtz.”

In addition to their general verdict in plaintiff’s favor for fifteen hundred dollars, the jury, in response to questions proposed by appellants, specially found as follows:

“1. Did the plaintiff on the twenty-fourth day of November, 1897, execute and deliver to Dr. Carl Kurtz, for the defendants in this case, the instrument dated November 34, 1897, a copy of which is set forth in defendants’ answer? ' Answer, Yes.

“2. Did the plaintiff receive from Dr. Carl Kurtz, acting for the defendants, Haas, Baruch & Co., the sum of twenty-five dollars as the consideration for the execution and delivery of said instrument? Answer,.Yes.

“3. Did Dr. Carl Kurtz at any time make any misrepresentations to plaintiff as to the contents, character, or legal effect of such instrument? Answer, Yes.

“4. If you answer the third question in the affirmative, then you will state particularly, and in detail, what false representations or misstatements concerning either the contents, character, or legal effect of said instrument were made by Dr. Kurtz to said plaintiff. Answer, He did not convey full information as to its contents, and said it was all right, and led him [the plaintiff] to believe that the twenty-five dollars only covered his loss of time while he was sick.

“5. Did Dr. Kurtz say anything to the plaintiff or do anything'to prevent the plaintiff from becoming fully acquainted with the character, contents, and legal effect of said instrument before the signing thereof by the plaintiff? Answer, Yes.

“6. If you answer the fifth question in the affirmative, then you will state particularly, and in detail, what Dr. Kurtz said or did to prevent the plaintiff from becoming fully acquainted with the character, contents or legal effect of said instrument. Answer, He withheld full explanation of the instrument, and led plaintiff to believe it was all right. He neglected to inform him that the acceptance of the twenty-five dollars barred any further action for damages of any nature whatever.

“7. Has the. plaintiff ever restored to the defendants, or offered to restore, the twenty-five dollars received by him at the time of the execution by him of the instrument of November 34, 1897? Answer, No.”

It will be seen from these special findings of the jury, considered in connection with their general verdict, that the jury were of the opinion that plaintiff executed the alleged release under a mistake as to its contents, that he believed he was

Appellants in their reply brief cite Hawkins v. Hawkins, 50 Cal. 558 , and Loan Assn. v. Esche, 75 Cal. 513 . In neither of these cases was there any relation of trust or confidence between the parties, and the means of knowing the contents of the contract executed was open alike to both parties; but in this case-the agent of appellants was also acting as the agent of respondent, and respondent trusted in him and relied upon his representation that the instrument was "a receipt for the lost time.”' Here, too, the contract was in a language that respondent could not read, and so the means of knowledge as to its contents was-not equally open to each of the parties to it. The disposition of this case in the trial court is, therefore, not in conflict with the two cases last referred to.

The point is made that the special findings of the jury fail' to show that the release was obtained by misrepresentation or fraud. That might well be and still the implied finding of misrepresentation and fraud would attach .to the general verdict returned by the jury. Certainly, the special findings are not inconsistent with respondent’s theory of misrepresentation, but. in so far as they relate to the subject at all they tend to support' that theory.

The contention of appellant that “it is not alleged in the-complaint that plaintiff’s injuries were caused by defendants’ negligence,” and for that reason the demurrer to the complaint should have been sustained, is evidently based oh a misapprehension of the contents of the complaint. The complaint states facts showing that the injuries to plaintiff were caused by defendants’ negligence.

The court did not err in refusing instructions 1 and 2 requested by defendants, and instruction Ho. 2 given by the court of its own motion is not erroneous in the respect contended for by appellant.

We advise that the judgment and order denying a new trial be affirmed.

Haynes, C., and Cooper, C., concurred.

Temple, J., McFarland, J., Henshaw, J.

Hearing in Bank denied.