Bennett v. Deaton, 6407

• Decision Date: 17 May 1937
• Docket Number: 6407
• Citation: 68 P.2d 895,57 Idaho 752
• Court: Idaho Supreme Court
• Parties: RALPH E. BENNETT and MARY G. BENNETT, Respondents, v. R. C. DEATON and SUSSMAN WORMSER & COMPANY, a Corporation, Appellants

68 P.2d 895

57 Idaho 752

RALPH E. BENNETT and MARY G. BENNETT, Respondents, v. R. C. DEATON and SUSSMAN WORMSER & COMPANY, a Corporation, Appellants

No. 6407

Supreme Court of Idaho

May 17, 1937

AUTOMOBILES - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - QUESTIONS FOR JURY-QUESTIONS OF LAW-INSTRUCTIONS-COMPROMISE AND SETTLEMENT-RELEASE-FRAUD.

1. Courts are inclined to uphold and enforce parties' deliberate compromise and settlement of their legal differences, when fairly arrived at with full knowledge of all facts.

2. Generally, question of fraud in obtaining release from claim for damages by representation of nonliability is one of fact for jury.

3. Whether automobile driver and insurance adjuster were truthful in making statements, alleged to have been relied on by parents of boy killed by automobile in executing release of their claim for damages, and had done all that they represented, held for jury in parents' action for boy's death.

4. Whether automobile driver's and insurance adjuster's constant reminders of parents of boy killed by automobile that they could accept amount offered in settlement of their claim for damages or would get nothing, and adjuster's repeated statements to them that driver and his employer were not liable, that officers who investigated stated that driver was not to blame and that accident was solely due to deceased's negligence, caused parents to be overreached, unduly persuaded and subjected to fraud vitiating release of such claim, because of their impecunious situation and distress of mind and body, held for jury in their action for boy's death.

5. Parents' release of claim for death of their minor son struck by automobile, in reliance on insurance adjuster's statements and representations that he made thorough investigation and determined that there was no liability that he had adjusted many claims and become familiar with law of accidents and insurance in eight years, that automobile driver was not to blame, and that parents could accept amount offered in settlement of claim or would get nothing, may be avoided as procured through fraud and misrepresentations such statements and representations being calculated to induce reasonable persons in parents' position and circumstances to believe and act on them.

6. Plaintiff's testimony in action for death of his minor son, struck by automobile, that he believed and relied on insurance adjuster's and automobile driver's statements in executing release of claim for damages, alleged to have been procured through fraud and misrepresentation, held admissible in death action, in view of evidence justifying submission to jury of question whether such statements were misleading, false, or deceptive.

7. Question of defendant's negligence is generally for jury.

8. Contributory negligence of child is generally question for jury.

9. Existence of negligence and contributory negligence are questions for jury, where minds of reasonable men might differ or different conclusions might be reached by different minds.

10. Contributory negligence becomes law question, so as to authorize nonsuit or instructed verdict, only when evidence is susceptible of no other reasonable interpretation than that injured party's conduct contributed to injury and that he did not act as reasonably prudent person under circumstances.

11. Automobile driver's negligence in driving at speed exceeding prima facie lawful rate, failing to see boys visible on and immediately adjacent to highway until after striking one of them, failing to give warning signal and failing to see or vary his course to avoid striking deceased, who traveled considerable distance within driver's view after appearing from behind wagon proceeding in opposite direction, held for jury in death action. (I. C. A., sec. 48-504.)

12. Contributory negligence of boy, struck by automobile, while running backwards diagonally across highway with his back to automobile, from behind wagon proceeding in opposite direction, held for jury in action for his death.

13. Instructions to jury must be read and considered together.

14. Instruction that one running automobile at speed exceeding statutory limit cannot escape liability for death of child struck thereby because latter ran in front of automobile suddenly and accident was then unavoidable held not erroneous as instructing jury that defendant could not escape liability for death of plaintiff's minor son, regardless of latter's negligence, if defendant was exceeding statutory speed limit, in view of other instructions.

15. Appellants are in no position to complain of instruction, given at their request, as in conflict with another instruction.

16. Giving of instruction in action for death of boy struck by automobile that it is matter of common knowledge that children may run on or across parts of thoroughfare used for vehicles at unexpected moments, and that motorist must be assumed to know of use of such thoroughfare by children and exercise degree of care commensurate with ordinary emergencies presented in such instances, where children's presence can be observed, held not error prejudicial to defendant as not taking into consideration any particular kind of highway or thoroughfare, but placing burden on all motorists on all highways, in view of evidence of presence of numerous boys, some of whom were visible to defendant, on or immediately adjacent to highway at time of accident.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Isaac McDougall, Judge.

Action for damages for wrongful death. Judgment for plaintiffs. Affirmed.

Affirmed. Costs awarded to respondents.

Merrill & Merrill, for Appellants.

The driver of an automobile is not bound to anticipate that a child will dart from behind obstructions on the highway or from the side of the highway in front of his car. ( Bowman v. Stouman, 292 Pa. 293, 141 A. 41; McAvoy v. Kromer, 277 Pa. 196, 120 A. 762; Autio v. Miller, 92 Mont. 150, 11 P.2d 1039.)

Darting from behind a wagon on side of highway in front of defendant's car is contributory negligence as a matter of law. (Standard Oil Co. v. Noakes, Circuit Court of Appeals, Sixth Circuit, 59 F.2d 897.)

Failure to apprehend legal effect of release not caused by act of other party is no ground for setting aside release. ( Cramp v. United States, 239 U.S. 221, 36 S.Ct. 70, 60 L.Ed. 238.)

Where one party understands terms of release and for what it is given, there is no mutual mistake of fact. (Cramp v. United States, supra.)

A mutual mistake which might give relief to one of the parties is a mistake which is reciprocal to both parties. (Green v. Stone, 54 N. J. Eq. 387, 34 A. 1002, 1099, 55 Am. St. 577.)

Mere mental worry, physical weakness, ignorance, of pecuniary necessity is insufficient to invalidate a written instrument if party knew contents of the instrument. (Nason v. Chicago, R.I. & P. Ry., 140 Iowa 533, 118 N.W. 751; 149 Iowa 608, 128 N.W. 854.)

Anderson, Bowen & Anderson, for Respondents.

A child in a public street is not a trespasser, his right there being the same as the operator of an automobile or other vehicle. (2 Cal. Jur. Ten-year Supp., p. 457.)

A motorist must anticipate the presence of pedestrians on streets and highways and exercise reasonable care to avoid injuring them. (Morel v. Lee, 182 Ark. 985, 33 S.W.2d 1110; Dobson-Peacock v. Curtis, (Va.) 186 S.E. 13; 5-6 Huddy Ency. of Automobile Law, p. 57 et seq.)

A minor in the street in violation of law is not sufficient to relieve an automobile operator of liability, who negligently injuries him. (Williams v. Black, 147 Tenn. 331, 247 S.W. 95.)

The mere showing that an automobile operator drove his automobile at a rate of speed within the speed limit does not entitle him to an instruction exculpating him from liability. ( Hammer v. Bloomingdale Bros., 213 N.Y.S. 743 at p. 749; Thies v. Thomas, 77 N.Y.S. 276, 277.)

Negligence, and contributory negligence of a child, when injured by an automobile, is generally a question for the jury. (Scott v. Kansas State Fair Assn., 102 Kan. 653, 171 P. 634; Dervin v. Frenier, 91 Vt. 398, 100 A. 760; note to 65 A. L. R. 192.)

Negligence and contributory negligence is for the jury where a child left a wagon and was injured on his way across the street to the sidewalk. (Di Domenico v. Fluck, 317 Pa. 385, 176 A. 210; Koelling v. Union Fuel & Ice Co., (Mo. App.) 267 S.W. 34.)

A release obtained by undue influence when the parties are not dealing at arm's length and when the releasor is not capable of properly dealing with the release, the same may be set aside. (23 R. C. L. 288, sec. 18; Pacific G. & E. Co. v. Almanzo, 22 Ariz. 431, 198 P. 457.)

As a general rule, the representation of non liability, coupled with other facts and circumstances, is sufficient to annul and set aside a release. (Olston v. Oregon Water Power & R. Co., 52 Ore. 343, 96 P. 1095, 97 P. 538, 20 L.R.A., N.S., 915; Western Maryland Dairy Corp. v. Brown, 169 Md. 257, 181 A. 468.)

BUDGE, J. Morgan, C. J., and Holden, Ailshie and Givens, JJ., concur.

OPINION

BUDGE, J.

--Respondents brought this action against appellants for damages for the wrongful death of their minor son, Theo Bennett, and for hospital expenses, doctor bills, nurses' hire and burial expenses. The death was caused by the automobile driven by appellant R. C. Deaton, he then being in the course of his employment for appellant Sussman Wormser & Company, striking Theo Bennett on the highway between Salt Lake and Pocatello at a point about three-fourths of a mile north of Virginia, Idaho.

At or about the time and the scene of the collision appellant Deaton was driving his automobile on the easterly side, or his right side, of the highway in a...