Allister v. Knaupp

Decision Date02 June 1942
Citation168 Or. 630,126 P.2d 317
PartiesALLISTER <I>v.</I> KNAUPP ET AL.
CourtOregon Supreme Court
                  See 3 Am. Jur. 489
                  53 C.J., Release, § 34
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

CARL HENDRICKS, Judge.

Action by Fay Allister against Paul W. Knaupp and Tom Steenson to recover for injuries sustained by plaintiff in a collision between Tom Steenson's automobile, in which the plaintiff was riding, and an automobile driven by Paul W. Knaupp. From a judgment in favor of Paul W. Knaupp notwithstanding the verdict, the plaintiff appeals.

REVERSED.

W.C. Winslow, of Salem (Norman K. Winslow, of Salem, on the brief), for appellant.

Ralph R. Bailey, of Portland (Maguire, Shields & Morrison and Hugh L. Biggs, all of Portland, on the brief), for respondent.

BAILEY, J.

The plaintiff, Fay Allister, has appealed from a judgment in favor of the defendant Paul W. Knaupp, entered by the court notwithstanding the verdict, in accordance with chapter 309, Oregon Laws 1941. The action was instituted by the plaintiff against Knaupp and Tom Steenson as defendants, to recover damages for personal injuries suffered by the plaintiff in a collision between Steenson's automobile, in which he was riding as a passenger, and one driven by Knaupp. At the conclusion of the evidence the court directed a verdict in favor of the defendant Steenson. The defendant Knaupp moved for a directed verdict and the court expressed its view that his motion should be granted, but stated that at the request of the plaintiff it would submit to the jury the case against Knaupp, reserving to him "the right to move for judgment" in his favor in the event of the jury's returning a verdict for the plaintiff. The jury rendered a verdict in favor of the plaintiff for $3,800 general and $150 special damages. No appeal is taken from the judgment in favor of Steenson.

The principal question here to be determined is whether there is any substantial evidence that the plaintiff was induced by false and fraudulent representations to execute a document releasing and discharging Knaupp from liability. The release, on a printed form furnished by Knaupp's agent, is as follows:

"For the sole consideration of two hundred and no/100 dollars, the receipt and sufficiency whereof is hereby acknowledged, the undersigned hereby release and forever discharge Paul W. Knaupp, his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person or property, which have resulted or may, in the future, develop from an accident which occurred on or about the 16th day of April, 1940, at or near Canby, Ore.

"Undersigned hereby declare that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned.

"In witness whereof, I have hereunto set my hand and seal this 29 day of April, 1940.

"FAY LEON ALLISTER (Seal) In presence of

"JIMMIE ALLISTER "STANLEY J. MITCHELL".

The answer of the defendant Knaupp, after denying generally the allegations of the complaint, pleaded the above-quoted release as in full settlement of any claim of the plaintiff against him. The plaintiff in his reply thereto admitted the execution of the purported release, and further alleged that Knaupp's representative, in order to induce the plaintiff to sign that document, falsely and fraudulently represented to the plaintiff that he had investigated the accident in which the plaintiff was injured; that his investigation disclosed that Knaupp was not guilty of any negligence causing or tending to cause the accident; that Knaupp was not liable to the plaintiff in any way on account of such accident; that the accident had been caused solely by the negligence of Steenson, in his failure to signal that he would slow down and make a left-hand turn; and that the plaintiff's signing the document would not affect his right of action against Steenson.

The reply further alleged that the representations made by Knaupp's agent were false and fraudulent in that Knaupp at the time of the collision was "asleep at the wheel of his car" and the failure of Steenson to signal "would not and could not influence the driving of the said defendant Knaupp at said time"; that the document which the plaintiff signed was a complete release and not merely a covenant not to sue Knaupp; that such release was obtained to be used as a complete release not only by Knaupp but also by Steenson; that such representations were known to Knaupp's agent to be false and fraudulent and were made for the purpose of having the plaintiff rely upon them; that the plaintiff did rely thereon; and that in reliance thereon the plaintiff executed the document referred to as a release, and was thereby damaged.

The collision occurred in the afternoon of April 16, 1940, at Canby, Oregon. Steenson, a deputy sheriff of Clackamas county, was returning from Dallas with the plaintiff in his custody for the purpose of taking him before a justice of the peace at Canby. Steenson's car had reached an intersection in the Pacific highway and was about to turn to the left, toward the business district of the town, when it was struck at the rear by a car which Knaupp was driving. As a result, the plaintiff received the injuries which are the basis of this action.

The plaintiff testified that Steenson had slowed his car down to ten or fifteen miles an hour and was starting to make the turn, without, however, giving any signal, when the collision occurred. Immediately after the accident the plaintiff was turned over by Steenson to a state police officer, who took him to the justice of the peace at Canby. Steenson then went back and interviewed Knaupp, who admitted to him, according to the testimony of both Steenson and Knaupp, that he had momentarily gone to sleep and was asleep at the time of the impact, and that he had not seen Steenson's automobile ahead of his...

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