Bowie v. Sorrell

• Citation: 113 F. Supp. 373
• Decision Date: 18 June 1953
• Docket Number: Civ. No. 300.
• Parties: BOWIE v. SORRELL et al.
• Court: U.S. District Court — Western District of Virginia

113 F. Supp. 373

BOWIE v. SORRELL et al.

Civ. No. 300.

United States District Court W. D. Virginia, Lynchburg Division.

June 18, 1953.

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Coleman & Gibson and Bascom S. Pribble, Jr., Fredericksburg, Va., and Perrow & Rosenberger, Lynchburg, Va., for plaintiff.

Caskie, Frost, Davidson & Watts, Lynchburg, Va., and C. O'Conor Goolrick, Fredericksburg, Va., for defendants.

BARKSDALE, District Judge.

On October 31, 1952, plaintiff, Adrian L. Bowie of Stafford County, Virginia, near Fredericksburg, instituted this action by way of motion for judgment in the Circuit Court of Campbell County, Virginia, against defendants, Arthur Keith Sorrell of Warren, Michigan, Keith Duane Freel of Detroit, Michigan, operators of, and Baker Driveaway Company, Inc., of Detroit, Michigan, owner of two motor vehicles which plaintiff averred had collided on November 2, 1951, in Campbell County near Lynchburg, causing him serious personal injuries, and moved for a judgment in his favor for the damages sustained by him. The action was duly removed to this court on the ground of diversity of citizenship, and defendants answered, setting up inter alia the defense that plaintiff had compromised and settled his claim for damages, accepted the sum of $5,000 in full settlement, and executed a valid release. Plaintiff filed his "Objection" to defendants' allegations as to the release, asserting therein that the release was invalid by reason of fraud, undue influence, harassment and misrepresentations on the part of the defendants, and that the release was obtained when the plaintiff was too ill to understand the extent and without knowledge of his injuries, that therefore the release was not his voluntary act and deed, and asked that it be declared null and void. Defendants had theretofore demanded a jury trial as to all issues except the issue of the validity of the release. Plaintiff demanded a jury trial as to this issue also. Thereupon, defendants moved the court for a separate trial on the issue of the validity of the release, and that on this issue a jury trial be denied upon the ground that the matter of determining the validity of an executed release was properly cognizable in equity, and therefore plaintiff was not entitled to a jury trial on this issue. A pretrial conference was held, and argument of counsel was heard on the procedural questions presented, plaintiff insisting that he be awarded a single jury trial for the determination of all the issues in the case.

As the release had been obtained by the adjuster for the insurance company covering the public liability of the defendants, it seemed obvious that, if all issues were tried at one time with a jury, the fact of the defendants' insurance coverage would inevitably be made known to the jury. In Virginia, it has been consistently held that evidence as to insurance coverage is inadmissible and prejudicial to a defendant and the admission of such testimony or argument of counsel disclosing insurance coverage is reversible error. Lorillard v. Clay, 127 Va. 734, 104 S.E. 384; Lanham v. Bond, 157 Va. 167, 160 S.E. 89; Worrell v. Worrell, 174 Va. 11, 4 S.E.2d 343; Bloxom v. McCoy, 178 Va. 343, 17 S.E.2d 401. Therefore, it seemed clear to me that defendants were entitled to a separate trial on the issue of the validity of the release, and it was so ordered.

Upon the question of whether, notwithstanding defendants' opposition, the plaintiff was entitled to a jury trial on this issue, the situation seemed to be that the trial of this issue was clearly in the nature of an equitable action to set aside and declare invalid an executed instrument. Chesapeake & Ohio Railway Co. v. Mosby, 93 Va. 93, 24 S.E. 916. As the issue would be one "not triable of right by a jury", it seemed to me that I could not properly order a jury trial. It is true that I might have impaneled an advisory jury under the provisions of Rule 39(c), Fed.Rules Civ.Proc., 28 U.S.C.A., but as neither party had requested an advisory jury and I was of the opinion that an advisory jury would not be helpful as the duty of the final determination of the facts would rest upon the court, I denied plaintiff's demand for a jury trial, and set the case for trial upon the issue of the validity of the release by the court without a jury. The trial was had on April 20, 1953, and subsequently, memoranda have been filed and oral argument of counsel has been heard.

Defendants have also filed a motion for summary judgment upon the ground that the plaintiff not having returned or tendered the $5,000 received by him in settlement as consideration for the release, he cannot maintain this action. However, by agreement of counsel, this issue is not now before the court for determination, it having been agreed between counsel that the determination of this issue (should such a determination be required) should be deferred until after the determination of the issue as to the validity of the release.

Findings of Fact.

This action having been tried upon the facts without a jury, the court doth hereby find the facts specially and states separately its conclusions of law thereon, and directs the entry of the appropriate judgment.

Plaintiff received severe burns from an automobile accident which took place on November 2, 1951, on Route 460, between two and three miles east of Lynchburg. At that time plaintiff was an enlisted man in the United States Air Force, and was proceeding, pursuant to orders, from a station in Texas to a new station. Plaintiff was married, but separated from his wife and two small children. His father and mother, and several brothers and sisters, lived in or near Fredericksburg. Plaintiff finished the Seventh Grade, served in the Army 1945-1947, was employed 1947-1950, but had owned no property and had no bank account. Plaintiff was traveling with one Hazel Watts in an automobile owned jointly by them. She had been married, but was separated from her husband, and lived in Fredericksburg, but had been employed for some months at or near the camp in Texas at which the plaintiff was stationed. The accident in which plaintiff was injured involved seven vehicles in all. There was an explosion, which resulted in severe burns to plaintiff.

Immediately after the accident, plaintiff was taken to a civilian hospital in Lynchburg where he remained for several days, and was then taken to the Army hospital at Camp Pickett, arriving there about November 6th. Upon being admitted to the Camp Pickett hospital, plaintiff's body was almost completely covered with bandages. His bandages being removed a week later, it was found that he had burns up to third degree on his torso, and his lower extremities were almost covered with third degree burns. Approximately 50 percent of plaintiff's skin surface was burned, and burns of that severity are frequently fatal. Plaintiff was in critical condition all the time he was at Camp Pickett and until he was transferred to Walter Reed Hospital on April 24, 1952. Plaintiff did not suffer as much pain at first, as he did later, because skin grafting was not undertaken immediately. During his stay at Camp Pickett, some twenty-seven skin grafting operations were performed, and he was given frequent blood transfusions. During the time he was at Camp Pickett, he fell off from approximately 180 pounds to approximately 108 pounds. During all the time he was at Camp Pickett, narcotics were administered daily, as well as sedatives.

On November 13, 1951, Reid, an insurance adjuster, visited him with a court reporter, and took a twenty-two-page question-and-answer statement from him, which would indicate that his mental condition was reasonably good. However, he was then having less pain and taking fewer narcotics than later. The insurance adjuster, Reid, presently twenty-five years of age and serving in the United States Army, entered the employment of Markel Service, insurance adjusters for the casualty insurance company here involved, on June 26, 1950. While so employed, he was taking a two-year course in law at Smithdeal-Massey Business College in Richmond. Prior to January 29, 1952, he had successfully completed the law course, but had not taken the Virginia bar examination, nor has he yet. A number of witnesses testified favorably as to his good character.

Reid returned to see plaintiff on November 23rd, but as plaintiff was drowsy, he did not talk to him. He returned on December 19th, but did not see plaintiff, as the nurse on duty would not permit it. On December 28th, Reid returned and talked to plaintiff for an hour or more. During this visit, settlement was discussed for the first time, but no agreement was reached, plaintiff saying that he had in mind a pretty high figure. On January 2, 1952, Reid returned with his superior, Mr. Gornto, and again discussed settlement, but plaintiff would state no figure. However, Reid left his name and telephone number and suggested that plaintiff call him when he wanted to see him again. On January 25th, plaintiff called the insurance adjuster's office in Richmond and left word with Mr. Gornto that he wanted to see Reid, so it was agreed that Reid would call on January 29th. When Reid arrived, they discussed settlement, and plaintiff told him he would settle for $10,000. Reid told Bowie that he had no medical expenses, as he was in an Army hospital, was losing no wages, and that, whatever he got in settlement would be clear, tax-free money, and offered to settle for $2,500 or $3,000. Reid made no false statements during the conversation. Bowie told Reid that the reason he wanted to settle that day was because his wife had been to see a lawyer and he was afraid she might get the settlement. Plaintiff declined Reid's offer, but said he would settle for $5,000. Thereupon, Reid called his superior Gornto on the telephone and asked for authority to settle for $5,000. Gornto authorized such settlement, provided a certificate could be...