Barden v. Hurd

• Decision Date: 13 March 1934
• Docket Number: 42287
• Citation: 253 N.W. 127,217 Iowa 798
• Parties: ANNA BARDEN, Plaintiff, Appellant, v. CHARLES P. HURD, Defendant, Appellee
• Court: Iowa Supreme Court

253 N.W. 127

217 Iowa 798

ANNA BARDEN, Plaintiff, Appellant, v. CHARLES P. HURD, Defendant, Appellee

No. 42287

Supreme Court of Iowa, Des Moines

March 13, 1934

Appeal from Des Moines Municipal Court.--RUSSELL JORDAN, Judge.

An action for damages resulting from an automobile accident. There was a directed verdict for the defendant, from which plaintiff appeals. The facts appear in the opinion.

Affirmed.

Putnam & Fillmore, for appellant.

C. B Hextell, for appellee.

ANDERSON J. CLAUSSEN, C. J., and KINDIG, MITCHELL, DONEGAN KINTZINGER, and STEVENS, JJ., concur.

OPINION

ANDERSON, J.

The accident of which plaintiff-appellant complains occurred on the 19th day of September, 1932, at about 6:30 in the evening on what is known as the East Thirtieth street viaduct in the city of Des Moines. It appears that one W. G. Bengston, who was driving in a northerly direction with a loaded trailer attached to his automobile came to a stop on the viaduct, and the Barden car, in which plaintiff was riding with her husband, was brought to a stop some 6 or 8 feet to the rear of the trailer. Mr. Bengston, who was driving the car to which the trailer was attached, got out of his car to rearrange some lumber with which the trailer was loaded. The two cars mentioned remained in the parked condition for probably six or eight minutes. The Barden car which was in the rear had a tail-light burning and two reflector lights. The car driven by the defendant-appellee, C. P. Hurd, which was traveling in the same direction as the two other cars, came upon the viaduct and ran into or against the Barden car, pushing the Barden car forward into the trailer, and plaintiff claims damages as the result of personal injuries which she claims to have received on account of the impact. There were no lights upon the rear of the trailer. It was a drizzly, cloudy evening, and at the time of the accident had become quite dark. There was an incline approaching the viaduct from the south, but it appears there were from 200 to 240 feet of level roadway from the crest of the approach to the place where the two cars were parked and where the accident occurred. The plaintiff alleges as her grounds of negligence that the defendant drove his car at a high and excessive rate of speed, that he did not have his car equipped with sufficient brakes, and that it was not equipped with proper lights. But there is absolutely no evidence in the record to support any of these specifications of negligence. The plaintiff further alleged that the defendant did not keep a proper lookout, did not have his car under control, and did not drive his car at a speed which would permit him to bring it to a stop within the assured clear distance ahead. As to the last specifications mentioned there is no evidence in the record to support any of them other than the fact that the accident occurred.

The defendant filed an answer which was a general denial and also set up the fact that a full and complete settlement of any damages sustained by the plaintiff was made by the plaintiff and W. G. Bengston, and that full releases and satisfaction were executed by the plaintiff and her husband upon the payment to them of certain amounts by the said W. G. Bengston.

The plaintiff admitted the execution of the releases in question, but alleges and here contends that such releases were procured through fraud, inequitable conduct, and mutual mistake, and that they should not be held to bar or estop her from asserting the claim declared upon as against the defendant in this case.

At the close of plaintiff's testimony the defendant moved to withdraw from the consideration of the jury all of the various specifications of negligence, and also moved for a directed verdict. There does not seem to have been a ruling on the motion to withdraw the various specifications of negligence, but the trial court did sustain generally the motion to direct a verdict for the defendant, and plaintiff has appealed from such ruling.

We do not have the benefit of a brief and argument on the part of the appellee. The plaintiff made claim for damages resulting from the accident against W. G. Bengston, the driver of the automobile with the trailer attached. The record shows that she called upon Mr. Bengston at his place of business and talked about settling the damages, and was referred by him to his attorney, a Mr. Lindgren. Negotiations were further carried on between the plaintiff and Mr. Bengston and his attorney which finally resulted in the payment to Mrs. Barden, the plaintiff, of the sum of $ 50, and to her husband of the further sum of $ 35, and a further sum of $ 15 to both plaintiff and her husband. Releases were signed at the time of these various payments; the plaintiff, Anna Barden, alone signing one of the releases which is in the following language:

"Full Settlement Release. I do hereby acknowledge receipt of the payment to me of the sum of Fifty and no/100 Dollars by W. G. Bengston and in consideration of said payment, I do hereby release and forever discharge the said payor, W. G. Bengston, his principals, agents, or employees, from all claims and causes of action which I now have or hereafter may have on account of any injuries sustained by me, or any member of my family, and whether said injuries are all now determined or anticipated or not, resulting from an accident which occurred on or about the 19th day of September, 1932, and on account of any damage to my property resulting from said accident. I have read the above and understand that this constitutes a full and complete release and settlement, and that no other consideration will be given to me or pay made to me by said payor or others on his behalf. Witness my hand and seal this 29th day of October, 1932, at Des Moines, Polk County, Iowa.

"Anna Barden,

"Address 1318 Hutton."

The plaintiff's husband also signed one of the releases, which is as follows:

"Full Settlement Release. I do hereby acknowledge receipt of the payment to me of the sum of Thirty-Five and no/100 Dollars by W. G. Bengston and in consideration of said payment, I do hereby release and forever discharge the said payor, W. G. Bengston, his principals, agents, or employees, from all claims and causes of action which I now have or hereinafter may have on account of any injuries sustained by me, or any member of my family, and whether said injuries are all now determined or anticipated or not, resulting from an accident which occurred on or about the 19th day of September, 1932, and on account of any damage to my property resulting from said accident.

"I have read the above and understand that this constitutes a full and complete release and settlement, and that no other consideration will be given to me or payment made to me by said payor or others on his behalf.

"Witness my hand and seal this 29th day of October, 1932, at Des Moines, Polk County, Iowa.

"F. E. Barden,

"Address 1318 Hutton."

Plaintiff and her husband also jointly executed a release, which is in the following language:

"Release for loss of services and indemnity agreement. The undersigned acknowledges the receipt of the payment of the sum of Fifteen and no/100 Dollars, by W. G. Bengston, and in consideration of said payment does hereby release and forever discharge the said payor from all claims and causes of action the undersigned now has or hereafter may have on account of injuries sustained by wife, Anna Barden, and Helen Barden, minor daughter, on or about September 19, 1932, and for said consideration the undersigned does hereby also covenant and agree to indemnify and hold harmless the said payor from all loss and expense on account of claims by any person resulting from said injuries.

"Witness my hand and seal this 29th day of October, 1932, at Des Moines, Iowa.

"Anna Barden, [Seal]

"Address 1318 Hutton

"F. E. Barden, [Seal]

"Address 1318 Hutton."

The plaintiff contends...