O'Meara v. Haiden

Action for damages for death of plaintiff’s son from injuries sustained by reason of the negligent operation of an automobile by appellant.

On the 14th of September, 1922, Herbert O’Meara, plaintiff’s son, then the age of seven years, while running across Bast 12th Street in the city of Oakland, was struck by an automobile driven by defendant B. Henderson, the agent of the defendant, G. P. Haiden. As a result of his injuries he remained in bed two weeks. He returned to school in November and attended irregularly for some five months. On November 1, 1922, the plaintiff in consideration of the sum of $250 paid to him by defendant Haiden executed and delivered to said defendant the following release:

“1847 SF-Auto-19580-B

“G. P. Haiden,

“Herbert O’Meara-—-age 7.

“In consideration of the payment of two hundred fifty no/100 dollars to me in hand paid by G. P. Haiden I do hereby release and forever discharge said G. P. Haiden from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury which heretofore have been or which hereafter may be sustained by me in consequence of an automobile accident, which occurred at Seventh avenue and Bast Twelfth street, Oakland, California, on or about the 14th day of September, 1922, in which my minor son, Herbert was injured.

“It being further agreed and understood that the payment of the said two hundred and fifty and no/100 dollars is not to be construed as an admission on the part of said G. P. Haiden of any liability whatever in consequence of said accident.

“In further consideration of the amount above stated I do hereby bind myself, my heirs, executors and administrators to indemnify and hold harmless the said G. P. Haiden from any loss the said G. P. Haiden may be obliged to pay in the future in reference to the above mentioned accident.

“In witness whereof, I have hereunto set my hand this 1st day of November, 1922.

“H. O’Meara.

“Signed and sealed in the presence of i “Mrs. H. 0. O’Meara,

“J. A. Stewart.”

Upon the death of his son the plaintiff brought this action for damages under section 376 of the Code of Civil Procedure, the amended complaint therein having been filed July 23, 1923. " On September 7 following defendant Haiden filed his answer to the complaint setting up the foregoing release. On October 15, 1923, plaintiff served upon defendant Haiden a notice of rescission of said release, and tendered to said defendant the sum of $250 paid by defendant to plaintiff at the time of the execution of said release, which tender was refused by defendant.

The action came on for trial on January 22d following, and a verdict was rendered in favor of plaintiff for the sum of $10,250. Prom this judgment the defendant Haiden has appealed. It may be conceded that plaintiff’s son received his injuries through the negligence of defendant and that said injuries were the proximate cause of his death. The court so found, and there was ample evidence to sustain this finding. The principal contentions of appellant on this appeal are, first, that the release was a complete defense to this action, that it was binding upon plaintiff and could not be rescinded and, second, that if the release could be rescinded, the action was prematurely brought, as it was instituted almost three months prior to any attempted rescission.

It is conceded that at the time of the payment of the sum of $250 to plaintiff and the execution of said release, neither party thereto had in mind that the boy would die. The appellant testified that “At the time this release was obtained I did not have in mind that the boy was likely to die. The fact that the boy might die from his injuries was not in contemplation at all at the time the release was executed.” The evidence shows that the cause of the boy’s death was abscess of the spleen, and the physician testified that this abscess was in his opinion caused from a bruise over the abdomen producing a possible hemorrhage in the spleen which was not visible to the naked eye. He further explained how death resulted from a complication of the

Section 1542 of the Civil Code provides that “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor.” This court in considering the extent to which a general release is binding upon the parties thereto has said in Meyer v. Haas, 126 Cal. 560 , 663 [ 58 Pac. 1042 , 1043]: “That portion of the contract, therefore, purporting to release and satisfy the claim upon which the action is based is, on the findings of the jury, absolutely void for the reason that the mind of plaintiff never consented to any such a release. . . . ” In that action the plaintiff, who had suffered injuries due to the negligence of the defendant, claimed, and the jury found, that the release given by the plaintiff was only in satisfaction of his claim for loss of time, although it purported on its face to be a release in full of all damages sustained as a result of said injuries. It is true that it was alleged and proven that said release had been procured by the fraud of the defendant therein; but this court has further held that a mutual mistake of fact concurred in by the parties invalidates a release (Miller v. Brode, 186 Cal. 409 [ 199 Pac. 531 ]). In the ease of Richardson v. Chicago etc. Ry. Co., 157 Minn. 474 [ 196 N. W. 643 ], cited by appellant,- the correct rule appears to be stated. In that action the court said: “Where the consideration received for a release is intended as compensation for the injuries sustained, and it subsequently develops that a substantial injury existed which was not known to the parties when the settlement was made and consequently was not taken into account in making it, the release may be avoided on the ground of mutual mistake.” This language is peculiarly applicable to the facts in this case. The evidence shows that the injury was sustained on September 14, 1922, and that as a result thereof the boy was sent to the hospital, from which he returned

A further distinction is made in the case of Richardson v. Chicago etc. Ry. Co., supra, between the injury sustained and the effects or results from such injury. If the injury is known at the time of the settlement, the release is binding upon the parties, even if unknown or unexpected consequences result therefrom, but if the injury is unknown, and the parties purport to settle for all injuries sustained, then the release will not be held to be binding upon the parties as to the injury which was unknown to the parties at the time of executing the release. “To avoid such a release, the rule requires clear and convincing proof that a substantial injury, which was not discovered until after the settlement, had in fact been sustained in the accident and existed at the time of the settlement. That unknown and unexpected consequences resulted from known injuries is not sufficient.” (Richardson v. Chicago etc. Ry. Co., supra.) The testimony of Doctor Nichols is that the boy died from an injury to his spleen received at the time he was run over by the defendant’s automobile, and that such injury was not visible to the naked eye. The only conclusion to be drawn from his testimony as recited in this opinion is that he did not know of the injury to the boy’s spleen at the time he ceased his visits to the boy on October 4, 1922; that his first knowledge that the boy had sustained any such injury was after the boy had come down with the measles, which was the following April, and which was long after the execution of the release. It is not contended nor is there any showing that the plaintiff had any knowledge of this injury except as he was informed thereof by the doctor. It appears, therefore, beyond question, that at the date of the release the injury which was the cause of the boy’s death was not known to either party. It was not in the minds of the parties at the time of the settlement which resulted in the execution of this written release. Accordingly, although the release may purport upon its face to extend to the plaintiff’s claim for damages arising from the death of his son, yet in reality it does not do so (sec. 1542, Civ. Code). It is unreasonable to suppose that plaintiff

It is next contended by appellant that the action was prematurely brought for the reason that no rescission of said release was made or was attempted to be made by the plaintiff until some three months after the institution of this action. In Garcia, v. California Truck Co., 183 Cal. 767 [ 192 Pac. 708 ], the plaintiff sought to recover damages for personal injuries sustained through the negligence of defendant. The defendant pleaded a release in full of all said damages. The plaintiff showed upon the trial that said release had been procured by fraud. He had not, however, prior to the trial attempted to rescind his contract of release, nor had he restored the consideration received by him from the defendant. This court held that rescission and restoration of consideration were necessary before plaintiff could recover, and reversed a judgment in favor of the plaintiff. In Meyer v. Haas, 126 Cal. 560 [ 58 Pac. 1042 ], which was also an action to recover damages for personal injuries, the defendant relied upon a release and written discharge executed and delivered to him by the plaintiff. The plaintiff claimed that he understood that the release given by him was simply of his claim for loss of time and was not intended as a release in full of all damages sustained. No rescission was ever made by the plaintiff nor did he restore the consideration received. In holding that plaintiff was not required to make such rescission or restore said consideration this court said:

“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 receiving the twenty-five dollars and giving the receipt in discharge of any claim he might have for loss

of time merely, and that he was led into this error by the artifice and deception of Kurtz as to the contents of the instrument, Kurtz acting as the agent of defendants and being in their employ, and at the same time pretending to act for plaintiff. The case is not without evidence to support such conclusions. That portion of the contract, therefore, purporting to release and satisfy the claim upon which the action is based is, on the findings of the jury, absolutely void for the reason that the mind of plaintiff never consented to any such a release, and the plaintiff should be bound only to the release and satisfaction of his claim for loss of time. This view of the case makes it clearly distinguishable from most of the eases cited by appellant. In those eases generally the parties sought to avoid or rescind contracts, the nature and contents of which they understood correctly, but they had been led to execute them by fraud or deception as to something other than the contents of the contract; and in such a ease the contract would not be void, but only voidable, and the rule requiring a return of everything received on the faith of the contract before it could be rescinded or avoided would apply; but this rule as to a return of everything received does not apply where a party is tricked or deceived into signing a contract different in its terms and objects from the contract which he has made and which he understands that he is executing. The contract under such circumstances will be held to be what the maker of it intended it should be, and not what it was made to appear to be by the deception practiced. The twenty-five dollars paid plaintiff may, therefore, properly be said to have been received in payment for the loss of time during his illness, and not in satisfaction of anything that his mind never consented that it should satisfy. The claim sued upon does not include this loss of time, and the court instructed the jury that they could find nothing against defendants for loss of time. No offer to return the money was necessary, for the reason that the plaintiff in this case ‘is not attempting to avoid a contract which he has made, but is showing that he did not make the contract which he apparently made. ’ (Mullen v. Old Colony R. R., 127 Mass. 86 [ 34 Am. Rep, 349 ] ; Chicago etc. Ry. Co. v. Lewis, 109 Ill. 120 ; Senter v. Senter, 70 Cal. 619 [ 11 Pac. 782 ]; Wilson

v. Moriarty, 77 Cal. 596 [ 20 Pac. 134 ] ; 88 Cal. 207 [ 26 Pac. 85 ]; Sullivan v. Moorhead, 99 Cal. 157 [ 33 Pac. 796 ].)”

The present action in principle is much like the case of Meyer v. Haas, except that no fraud is claimed or proven to have been practiced by the defendant in the procurement of the release involved herein. In this action, however, the uncontradicted evidence, as we have already seen, shows that neither party to the release at the time they made the settlement evidenced by the release had in mind the injury which resulted in the boy’s death. As to the .damages sustained by the father for the death of his son due to defendant’s negligence we have held that the release did not cover any damages sustained by reason of the boy’s death. It only extended to damages for those injuries known to the parties at the time of executing it. The present action was by the instructions of the trial court limited to such damages as the father may have sustained by reason of his son’s death. As plaintiff herein has net recovered any damages sustained by him for injuries, which were covered by the release, it was not necessary for him to rescind said release and restore the consideration received therefor before the institution of this action. (Lumley v. Wabash R. Co., 76 Fed. 66 ; McGill v. Louisville & N. R. R. Co., 114 Ky. 358 [ 70 S. W. 1048 ] ; Bliss v. New York etc. R. R. Co., 160 Mass. 447 [ 39 Am. St. Rep. 504 , 36 N. E. 65 ].) This we understand to be the effect of the holding of this court in Meyer v. Haas, supra. In that action, however, the plaintiff did not either after or before the commencement thereof offer to rescind and restore the consideration received by him from the defendant Haas. In the present action after the commencement thereof and before the trial the plaintiff herein offered in writing to rescind and tendered the defendant the $250 received at the time of executing the release, which the defendant refused to accept. There is creditable authority to sustain plaintiff’s contention that the rescission, assuming that a rescission was required, attempted to be made by plaintiff herein after suit began was timely, and was sufficient to entitle plaintiff to litigate the validity of the general release at the trial of the action. “Undoubtedly no duty exists to return the consideration until the fraud or other invalidity is discovered. Beyond this the authorities are in conflict as to when the restoration of consideration or tender

While the mother of the boy was on the stand she was shown and asked to identify a photograph of her deceased son. This was objected to by the defendant, but the court overruled the objection. Upon her testimony that the photograph shown her was that of her son it was admitted in evidence. There was no dispute as to the identity of the boy injured. Just what was the purpose of offering in evidence his photograph is not apparent from the record, unless it was to unduly prejudice the jury in favor of the plaintiff. The reporter’s transcript shows that the mother wept as she identified her son’s picture. The effect of such procedure cannot aid in the rendition of a just and fair verdict by the jury, which should be the purpose of all trials by jury. To permit the introduction of the dead boy’s photograph under the circumstances shown in this action was undoubtedly error and in a closely contested case would result in serious prejudice to the cause of the defendant, and would, therefore, call for a reversal of the judgment. We are not prepared to say that it had that effect in this proceeding. There was little question but that the boy’s death was due to the negligence of defendant’s servant who was operating defendant’s machine at the time of the boy’s injury. The main questions involved in the case were of a legal character and have already been considered by us. The objectionable testimony just referred to had no bearing upon any of them. There is, however, one phase of the case upon which such testimony might have had a material bearing, and that is embraced in the further contention of defendant that the verdict was excessive. The verdict was for $10,250, the $250 evidently being paid to cover the amount paid out by the plaintiff for the funeral expenses of his son. The complaint alleges that this amount was expended for that purpose. This leaves a verdict of $10,000 for general damages due to the death of the son. In the case of Wiezorek v. Ferris, 176 Cal. 353 [ 167 Pac. 234 ], this court reversed a judgment in that amount in favor of a parent for the death of his minor son, his only child, a boy six and one-half years of age, solely upon the ground that the amount thereof was excessive. Were we to follow that case we would be compelled to grant a reversal of the judg

In view of the changed conditions that now prevail from those existing some ten years ago, we do not feel that we would be justified in following at this time the views expressed by this court in Wiezorek v. Ferris, supra, regarding the subject of excessive verdicts. Under the present conditions that case cannot be accepted as a final authority in determining whether the verdict in the present action is excessive or not. On the other hand, the present verdict must be considered under the conditions prevailing at the present time, or at least at the time it was rendered in January, 1925. We must, as courts in other jurisdictions have done in passing upon similar questions as that involved herein, take judicial notice of the fact that the value of the dollar has materially changed from what it was some 10 to

In one of the instructions given by the court the jury were told that if the consent of plaintiff was given to the release in question “by mistake or obtained through fraud” then it was the legal right of plaintiff to rescind the same. As we have said above, there was no claim that the release was procured by fraud and the case was tried upon the theory of mistake only. The only reference to fraud throughout the record is in this instruction. Just how the court happened to mention in said instruction “fraud’'’ as one of the grounds of avoiding the release is in no way explained. It may have been inadvertently done. In any event, we are not convinced that defendant was seriously prejudiced by this one reference to fraud, .when the record shows plainly that plaintiff made no claim that the release was fraudulently obtained, and the sole contention of plaintiff throughout the trial was that the release was of no binding effect upon him by reason of the fact that it was executed under a mutual mistake of the parties. In our opinion the judgment should be affirmed and it is so ordered.

Preston, J., concurred.

I concur in the conclusion announced by the main opinion. I do not concur in the portion thereof which holds that the admission of a photograph taken of the minor two weeks before he received the fatal injuries was error. It would certainly have been proper to have shown the physical condition and mental precocity of the youth by oral testimony as matters pertinent for the consideration of the jury in determining the extent of damages sustained by the parents. A photograph, the integrity of which could not be doubted, would, in my opinion, have given the jury a truer conception of the youth’s physical appearance than could have been conveyed to the jury by the descriptive power of speech. So, too, it would reflect something of the mental force of the subject. Emotional manifestations are not alone produced by the exhibition of photographs in cases of this class. Such manifestations are to be expected where mothers are called

Hearing in Bank denied.

All the Justices concurred.