Carroll v. Fetty, No. 8831.

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY
• Citation: 2 S.E.2d. 521
• Parties: CARROLL. v. FETTY.
• Decision Date: 23 March 1939
• Docket Number: No. 8831.

2 S.E.2d. 521

CARROLL.
v.
FETTY.

No. 8831.

Supreme Court of Appeals of West Virginia.

March 23, 1939.

[2 S.E.2d. 521]

Rehearing Denied May 8, 1939.

[2 S.E.2d. 522]Syllabus by the Court.

1. In an action for wrongful death, a release executed by the beneficiaries under the statute, Code, 55-7-5, prior to the institution of the action, is, in the absence of fraud, duress or other invalidating defects, a bar to recovery.

2. A written release by one sui juris of a claim for wrongful death cannot be set aside for misrepresentations on the ground of fraud, in the absence of proof both clear and convincing. In such case, actual and positive fraud must be shown.

3. In an action for wrongful death, a written release, signed by the beneficiaries entitled to recovery, may be set aside where it was obtained by duress exercised by a third party with the participation or knowledge of the releasee. However, such duress must be proved by clear and convincing evidence and generally presents a question of fact for the jury.

4. By replication to a plea of release of liability in a wrongful death action, the plaintiff may plead duress in the procurement of the release.

5. Where, in an action for wrongful death, the plaintiff seeks to have set aside a written release on the ground of duress in its procurement, he must tender to defendant or his counsel, as a condition precedent to recovery, any sum paid in settlement under the release before or coincident with the filing of the replication alleging the duress.

FOX, P, and HATCHER, J., dissenting.

Error to Circuit Court, Kanawha County.

Wrongful death action by E. H. Carroll, administrator of the estate of Mildred Ruth Carroll, deceased, against Harold Fet-ty. To review a judgment for the plaintiff, the defendant brings error.

Judgment affirmed.

Rummel, Blagg & Stone, of Charleston, for plaintiff in error.

Lillian S. Robertson and J. Blackburn Watts, both of Charleston, for defendant in error.

RILEY, Judge.

Harold Fetty prosecutes error to a judgment of the circuit court of Kanawha County affirming the action of the court of common pleas in entering judgment on a jury verdict against him in an action of trespass on the case for wrongful death, wherein E. H. Carroll, administrator of the estate of Mildred Ruth Carroll, deceased, was plaintiff, and Fetty was defendant.

On Friday, January 13, 1936, the decedent, a little girl six years of age, was seriously injured by an automobile driven by defendant and died early the next morning. On Sunday afternoon following, the father of the decedent was met with the problem of securing money with which to satisfy the undertaker prior to surrender of the body. That evening, the parents, E. H. Carroll and Ida Carroll, signed a certain paper, and were paid $800 by the insurance adjuster. Some months later the father was appointed and qualified as administrator, and the present action was thereupon instituted.

On the trial, the defense was confined solely to the theory set up in special plea that plaintiff's claim had been settled and a valid release signed by the child's parents. To defendant's plea of release, plaintiff filed a replication alleging that the release was obtained by fraud and misrepresentation in that the releasors accepted the $800 with the understanding that said sum was for funeral expenses and not in full settlement; that on the afternoon prior to the signing of the release, the undertaker refused to surrender the child's body for burial until payment had been made or security given for the cost; that the mother, Ida Carroll, was prostrated with grief over the loss of "her child and under the influence of an opiate; that plaintiff could not disclose to his wife the fact of the undertaker's refusal to release the body, and that the "parents were in great need of financial assistance as the defendant and his said agent well knew."

The controlling question presented on this writ of error is the effect of the claimed settlement and release.

[2 S.E.2d. 523]

It should be noted that in a suit to enjoin the present action at law, this Court, in passing upon the sufficiency of Fetty's bill of complaint, held, in effect, that a valid release signed by the deceased child's parents is a bar to recovery. Fetty v. Carroll, 118 W.Va. 401, 190 S.E. 683, is the law of this case on this point.

The record contains much conflict on the question whether the release was executed by the Carrolls with knowledge that it was in full settlement. Of course, defendant claims that the release was executed with such knowledge. Reliance is had upon the express terms of the release itself; upon a statement on the face of the drafts given in attempted settlement providing that "The indorsement of this draft constitutes a clear release and in full settlement of the above claim or account"; and a statement indorsed on each draft that "The indorsement of this draft by the payee constitutes a clear release and receipt in full of the claim or account shown on the other side." Defendant's statement of full settlement is supported by the testimony of Dwight Haddox, the insurance adjuster who took the release, J. G. White, the undertaker, and J. F. Owens, and Vinson Long, who were present at the time the release was executed. On the contrary, Carroll denies any intention of making full settlement and he is supported by two witnesses who were present at the time the release was executed and testified that they did not hear any statement to the effect that the paper constituted a complete release. Robert Lyons testified that on the day the child died he heard Carroll tell two men they could make "any kind of arrangement they wanted to make but no settlement of no kind"; Lum Adams said that he heard Haddox state to Mr. Carroll that "he was giving him a part payment"; and Orville Vinion testified that he overheard a conversation between Haddox and Carroll in which the latter asked; "Do you mean this is going to be a settlement?" and the former answered: "No, I will see you after the burial is over with."

It thus appears that on the question as to whether or not the payment constituted /rail settlement, the oral testimony conflicts. The evidence, however, to overcome the clear and explicit terms of an express release must be strong and convincing. 53 C.J. 1284-1286, and cases cited under note 50. And where such evi dence is produced, the question is one for the jury. Norvell v. Kanawha & M. R. Co, 67 W.Va. 467, 68 S.E. 288, 29 L.R. A, N.S, 325. Here, however, the father, though ignorant and inexperienced, was in full possession of his mental faculties, and the fact that the mother was under the influence of an opiate is immaterial, because, in order to bar recovery, she was not even a necessary party to the release. Swope, Adm'r v. Keystone Coal & Coke Co, 78 W.Va. 517, 89 S.E. 284, L.R.A.1917A, 1128. The evidence rather strongly predominates against the disability of Mr. Carroll to realize that he in fact was signing a complete release.

From a careful review of this record, we cannot say that the release is vulnerable because of misrepresentation that the payment was only for a partial amount.

However, another vitiating element enters into the procurement of this release. The evidence clearly shows that the undertaker had refused to give up the child's body for burial until he was paid or payment secured; that Carroll was not financially able to provide for burial and that he made a fruitless effort to have defendant's father sign his note. The insurance adjuster himself knew of these unfortunate and appalling circumstances. In fact, he testified that after an approximate settlement was reached, he told "Mr. White that this settlement was indicated and he saw no reason that the body couldn't be moved * * *." Undoubtedly, due to the tragic death of their little daughter, the parents were grief-stricken. Naturally, their grief bore heavily upon their minds. While grief may destroy judgment and will, it alone is not sufficient to ground an attack on the release. See generally, 2 Black, Rescission and Cancellation (2d Ed.), sec. 270. Neither are a releasor's necessitous circumstances alone sufficient to invalidate a release. 12 C.J. 348; 1 Black, Rescission and Cancellation (2d Ed.), sec. 230. They, however, furnish a background which rendered more acute the situation of duress in which the parents found themselves when the undertaker refused to give up the child's body, because they were unable to acquire...