Duff v. Riggs

146 P. 827, 75 Or. 209, 1915 Ore. LEXIS 188

• Court: Oregon Supreme Court
• Decided: March 9, 1915
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The release is general in its nature and covers all claims for damages arising out of the injury, and not only contemplated the payment of such expenses as had already been incurred, but all future expenses which might be incurred up to the time he should be discharged from the hospital. There is no allegation of fraud or mistake in the execution of the instrument, and, when plaintiff filed his reply, he must, in the very nature of things, have known that he had executed the release and been aware of its contents. The case at bar differs from the case of Bliss v. New York Cent, etc. R. R. Co., 160 Mass. 447 (36 N. E. 65, 39 Am. St. Rep. 504), in this: In that case there was testimony tending to show that plaintiff had received a serious shock in a railway accident, from which he was dazed and rattled in his mind, and that while he was in this condition, with the marks of the injury visible upon his person, about an hour and a half after the accident, and in the office of the defendant’s superintendent, the defendant’s agent prepared two papers for him to sign, telling him that one paper was a receipt for money that was then paid him for injury to his clothing, and that the other was merely a form; and that he signed both papers without reading them or knowing their contents. In that case the court said:

“It is plain that the plaintiff’s release and receipt do not in themselves stand in the way of his maintaining the action. * * They must now be assumed to have been obtained from him by fraud.”

Here the evidence discloses no fraud attempted oi practiced. The release as first prepared was examined by him, and he objected to some of its terms, which were changed at the instance of an attorney selected either by himself or his daughters, who were assisting to care for him, and after his daughter had explained it to him he signed it. Defendant testifies that he was present when the paper was signed and talked with plaintiff for half an hour, and that he was perfectly rational and his mind clear; and neither the plaintiff nor his daughter contradicted this testimony. The testimony is overwhelming that the release was fairly made, and the defendant has complied with all its terms, paying out $2,018 for nurses, surgical attendance and medicines. The fact that the results of the accident turned out more serious than defendant might have anticipated does not alter the legal condition in the least. Everybody knew that plaintiff’s condition was serious; in fact, he himself was of the opinion at first that he was not likely to survive his injuries. The testimony relating to the accident discloses a state, of facts upon which a jury might have found in his favor in a large sum, or, in view of the evidence as to his contributory negligence, they might have found for the defendant, and left him a cripple, with $2,018 of bills for himself or his family to pay. In the absence of the slightest evidence of fraud or undue advantage, we should not, in any event, he justified in reversing this judgment. The rulings of the lower court seem to have been eminently fair and very favorable to the plaintiff. Every fact went to the jury, and it returned a unanimous verdict for the defendant.

2. Even if there should be some slight error in the instructions, we should he fully justified, and it would be our duty to say that the defense of a release had been so thoroughly made out that the verdict and judgment were such as should have been rendered and affirm the judgment in accordance with Section 3, Article VII, of our amended Constitution. Being thoroughly satisfied upon this branch of the case, the other matters presented become mere moot questions, which it is unnecessary to consider.

The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.