Corbett v. Bonney

• Decision Date: 08 September 1961
• Docket Number: No. 5291,5291
• Citation: 202 Va. 933,121 S.E.2d 476
• Parties: SADIE M. CORBETT v. SHIRLEY ANN BONNEY. Record
• Court: Virginia Supreme Court

Page 476

121 S.E.2d 476

202 Va. 933

SADIE M. CORBETT v. SHIRLEY ANN BONNEY.

Record No. 5291.

Supreme Court of Appeals of Virginia

September 8, 1961.

Robert G. Winters (Pilcher, Underwood, Pilcher & Winters, on brief), for the plaintiff in error.

Calvin W. Breit (Melvin Friedman; Amato, Babalas, Breit & Cohen, on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

This appeal involves an action brought by Shirley Ann Bonney, plaintiff, against Sadie M. Corbett, defendant, for damages resulting from injuries she received while a passenger in an automobile operated by her husband, Maurice W. Bonney, when his car was struck in the rear by a vehicle driven by defendant in Charlotte, North Carolina.

Defendant filed a plea of release and also her grounds of defense to the motion for judgment. A similar plea was filed by her in a pending action instituted by Maurice W. Bonney arising out of the same accident, and since the Bonneys had executed a joint release, the trial court, without objection, ordered that the cases be heard together on the issue raised by the special pleas. A trial was had on June 13, 1960, and at the conclusion of all the evidence defendant moved to strike plaintiffs' evidence, which motion was overruled. The jury returned verdicts in favor of both plaintiffs, thus holding the release invalid. Defendant's motion to set aside the verdicts was overruled. Thereafter, on July 27, 1960, a trial was had on the merits of plaintiff's (Mrs. Bonney's) case. The jury found for plaintiff and fixed her damages at $5,000 upon which judgment was entered. We granted defendant a writ of error.

Defendant relies solely upon assignments of error Nos. 3 and 4. They relate to the trial on defendant's special plea of release, and they allege that the court erred in overruling defendant's motion to strike plaintiff's evidence because plaintiff failed to prove (1) 'fraud in the procurement of the release by clear, concise and credible evidence', and (2) 'a mutual mistake of fact as to her alleged injuries.'

We, therefore, are concerned here only with the evidence adduced at the trial on defendant's special plea of release. The Bonneys and defendant were friends and residents of Norfolk, Virginia. They drove to Charlotte, North Carolina, in their respective automobiles to attend a Jehovah's Witness convention. While there, on August 15, 1959, at approximately 10 a.m. defendant, who was following Bonney's vehicle, negligently operated her car and struck Bonney's vehicle in the rear causing it damage. Defendant contacted Robert L. Fry, a claims adjuster for her insurance carrier, The Celina Mutual Insurance Company. Fry drove to the scene of the accident, and made arrangements for necessary temporary repairs to Bonney's car at Kiser's garage. He then escorted the Bonneys and defendant to a local hospital, where plaintiff was examined by Dr. Basil Boyd, an orthopedic surgeon. The X-rays taken were negative. Dr. Boyd diagnosed her injury as 'a complaint of lombar cervical spine'. He rendered her 'emergency treatment which consisted of a sedative and muscle relaxer and told her to contact her physician on her return to Norfolk if necessary'. The examination consumed about an hour, after which the Bonneys left the hospital.

Later in the day the Bonneys contacted Fry on the telephone and arrangements were made for Fry to drive them the next morning to Kiser's garage where the automobile had been temporarily repaired. There, according to Fry, Bonney told him of plaintiff's condition and that Dr. Boyd had said there would possibly be additional treatments by an orthopedic doctor in Norfolk. Fry said there was a discussion with respect to the amount of damages sustained as a result of the accident, after which the Bonneys agreed to accept $197.96 in settlement of their claims. It covered repairs made to the automobile; $75.46 for additional repairs required; $15 to pay Dr. Boyd; $15 to pay the hospital; $5 for a telephone call, and the balance was for further medical treatment of plaintiff, if necessary. As a consequence he said that he filled in a release form ¹ in their presence and explained to them it was a release from any and all claims resulting from the accident, and that the Bonneys read it before signing. Their signatures were witnessed by A. A. Ramsey, a Charlotte police officer, and Robert V. Kiser, who were at the garage. Ramsey testified that the release was filled in and signed by the Bonneys in his presence; that he and Kiser signed as witnesses in their presence; that Bonney explained to him what 'it was all about' and was satisfied, and that he appeared to be normal and joked at the time.

Maurice W. Bonney (SEAL)

Shirley A. Bonney (SEAL)' Bonney stated that when he signed the release, neither he nor Fry knew that he was injured. On the other hand, plaintiff said her husband was 'nearly crazy and was having pain'. Both plaintiff and Bonney testified they did not read the instrument before signing it and that it was not discussed as a release. When Bonney was asked what was said with regard to plaintiff's releasing any claim for her injury, he replied: 'He [Fry] said that this was in order to get her out of the hospital in Charlotte, and to get my car, and that that was all I was supposed to be signing for.' When asked if there was any particular reason why he did not read the release before executing it, he said: 'Well, I was so excited and so upset on account of my wife's injury, and I thought that Mr. Fry was being fair with me, so I just signed it thinking that he was being fair in telling me that I was only signing for my car and for my wife up until that point. So, therefore, I signed it.'

Plaintiff stated Fry was 'so nice about everything'; that at the garage he said 'that I could now be turned over to my husband, that I was O.K. to go back'; that the car was ready, and that the signing of the form 'was just a formality that was routine, that had to be done on every occasion.' Plaintiff testified that she did not read the release because 'I thought that he [Fry] was telling the truth,' and that had she known the extent of her injuries and that the instrument was a release, she would not have signed it. She further testified:

'Q. After you signed it did Mr. Fry ever say anything to you about getting further medical treatment in Norfolk?

'A. When I went over and got in my car and we were getting ready to leave the garage -- and, in fact, leave the City of Charlotte -- he came over and I rolled down the window, and he said that he hoped I would be getting along all right, and to go ahead and have whatever medical attention I needed, and to do that until I got well, and that he hoped I would be feeling good.

* * *

'Q. When you were examined by Dr. Boyd in Charlotte, Mrs. Bonney, did he indicate to you that you might have need for further treatment in Norfolk?

'A. Yes, sir.

'Q. You knew that at the time you signed that paper, did you not?

'A. I knew that I would have to have something more done, because I was just in so much pain. I could not walk alone. I had to have the help of my husband. I knew that something was wrong.'

After signing the release, the Bonneys returned to Norfolk where Mrs. Bonney received a number of treatments for her injury.

Fry, not having draft authority, forwarded the release to defendant's insurance carrier, who in turn mailed three drafts totalling the sum of $197.96, payable to the Bonneys and others. But before Fry received the drafts, he was advised by letter that Robert Cohen of the law firm of Amato, Babalas, Breit and Cohen, of Norfolk, was representing the Bonneys for injuries and damages sustained in the accident. Whereupon, on August 15, 1959, Fry mailed the drafts to Cohen, who returned them to Fry on September 1, 1959.

We shall consider first whether the trial court erred in refusing to strike plaintiff's evidence with regard to fraud because of her failure to prove fraud in the procurement of the release. Since the instrument was executed in North Carolina, the law of that State governs.

Harrison v. R.R., 229 N.C. 92, 47 S.E.2d 698, involved the validity of a release for injuries plaintiff sustained in an accident during the course of his employment by defendant. Plaintiff was 32 years of age, literate and had business experience. He claimed that he signed the instrument without reading it in reliance upon the statement of defendant's agent that it was for the purpose of admitting him to the hospital, when in fact it was a release from liability in consideration of defendant's agreement to pay all medical and hospital bills with regard to his injuries. In holding that the evidence showed that plaintiff had knowledge of the nature of the instrument and that the evidence was not sufficient to show fraud in the procurement of the release, the court observed:

'It is established by the decisions on the subject that one who signs a written instrument, without being induced thereto through fraud or deception, cannot avoid its effect on the ground that at the time he signed the paper he did not read it or know its contents, but relied upon what another said about it. School Com. v. Kesler, 67 N.C., , 448; 45 Am.Jur., 683; Anno. 55 Am. St. Rep., 509. It is...