Dobler v. Story

• Citation: 268 F.2d 274
• Decision Date: 19 June 1959
• Docket Number: No. 16053.,16053.
• Parties: Jean DOBLER, Appellant, v. Oleta STORY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

268 F.2d 274 (1959)

Jean DOBLER, Appellant, v. Oleta STORY, Appellee.

No. 16053.

United States Court of Appeals Ninth Circuit.

June 19, 1959.

O. Vincent Bruno, Noel B. Gassett, San Jose, Cal., for appellant.

Joseph F. Lewis, William J. Fernandez, Lewis, Scherr & Fernandez, Sunnyvale, Cal., for appellee.

Before FEE, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellee, plaintiff below, is a resident and citizen of the State of California. The appellant, defendant below, is a resident and citizen of the State of Texas. The automobile collision which gave rise to the litigation occurred in the San Francisco Bay area, State of California, within the jurisdiction of the United States District Court for the Northern District of California, Southern Division. The amount in controversy exceeded $3,000 plus interest and costs. The district court had jurisdiction of the controversy under Title 28 U.S.C.A. § 1332(a) (1). The jurisdiction of this Court has been properly invoked under Title 28 U.S.C.A. § 1291.

Since federal jurisdiction depends upon diversity of citizenship, we are to be governed in our decision in this case by the laws of the State of California as declared by the Supreme Court of that State. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

The facts of this case are not in dispute. In reviewing the facts we will refer to the parties by their designations in the district court. On October 2, 1955, a collision occurred between an automobile operated by plaintiff's husband, in which plaintiff was riding, and an automobile operated by the defendant. The district court found that the accident resulted directly and proximately from the carelessness and negligence of the defendant. On October 4, 1955, plaintiff reported this accident to an agent of her own insurance company and filled out an accident report for it. At the time this report was made plaintiff was suffering from headaches and neck pain, resulting from the accident. Later the plaintiff received through the mails from the agent or representative of her own insurance company a document entitled "Release of All Claims". We are unable to determine from the record the exact date on which plaintiff received such document. In this regard plaintiff testified that she had ample opportunity to read the document. In any event, on November 29, 1955, she and her husband signed the document, and secured the signatures of two persons as witnesses. On the same day plaintiff and her husband acknowledged their signatures before a notary public in and for the State of California, County of Marin. This document, executed and acknowledged by plaintiff and her husband, reads in full as follows:

"Release of All Claims

"For and in consideration of the payment to me/us of the sum of three hundred thirty and 80/100 dollars, the receipt of which is hereby acknowledged, I/we, being of lawful age, do hereby release, acquit, and forever discharge Jean I. Dobler, his/her heirs, executors and assigns, from any and all liability now accrued or hereafter to accrue on account of any and all claims or causes of action which I/we now or may hereafter have for personal injuries, damage to property, loss of services, medical expenses, losses or damages of any and every kind or nature whatsoever, now known or that may hereafter develop, by me/us sustained or received on or about the 2nd day of October, 1955, through automobile accident in or near Greenbrae intersection, Marin County, California, and I/we hereby declare that I/we fully understand the terms of this settlement and voluntarily accept said sum for the purpose of making a full and final compromise, adjustment and settlement of the injuries and damages, expenses and inconvenience above mentioned.

"It being further agreed and understood that this settlement is a compromise of a disputed claim and that the payment is not to be construed as an admission on the part of the party or parties hereby released of any liability whatever in consequence of said accident.

"I/We further state that the foregoing release has been carefully read and I/we know the contents thereof and have signed the same as my/our own free act and have not been influenced in making this settlement by any representation of the party or parties released.

"Executed at San Rafael, this 29th day of November, 1955.

"Witnesses:

Mrs. Dawn E. Bowen Address 4136 Redwood Hwy San Rafael, Calif Dorothy McDonald Address 4136 Redwood Hwy San Rafael, Calif.

Caution; Read Before Signing Below

Thurman Story Oleta Story American Insurance Co. By E. Godsall, General Adjuster

Acknowledgment

State of California County of Marin.

"Before me, this 29th day of November, 1955, personally appeared Thurman Story and Oleta Story, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he/she understands its contents and executed the same for the purposes and consideration therein expressed.

"Given under my hand and seal of office this 29th day of November, 1955. Helen Ruttledge, Notary Public — In and for the State of California, County of Marin."

The record is clear that plaintiff and her husband had ample time to read the document before its execution and acknowledgment; she was not forced to sign the document; she was able to read and understand the document; and she signed it freely and willingly. After completion of the execution and acknowledgment of the document plaintiff mailed it to the agent or representative of her own insurance company. Sometime after the execution of the release plaintiff received a check from her insurance company in the sum of $330.81. The check was dated January 12, 1956, and was made payable to plaintiff and her husband. They endorsed this check and mailed it to her own insurance company, and subsequently received a check from her own insurance company in the amount of $100, bearing the same date. At no time did the defendant, nor anyone purporting to represent her, communicate with the plaintiff in regard to the accident or to the release.

On December 25, 1955, plaintiff for the first time following the accident consulted a physician complaining of headaches. Her next visit to a physician occurred in September of 1956. On September 27, 1956, plaintiff filed her complaint for damages in the district court against the defendant. The defendant by answer denied the material allegations of the plaintiff's complaint, and as a separate and distinct defense alleged that on the 29th day of November, 1955, the plaintiff for valuable consideration released the defendant from all liability to the plaintiff of any and all claims of plaintiff against the defendant, including the alleged claim set forth in plaintiff's complaint.

Following trial, the district court awarded plaintiff judgment against the defendant in the sum of $2,400 general damages and $265 special damages. From this judgment the defendant has appealed to this Court.

The specifications of error relied upon are (1) error of law by the district court in finding the release signed by plaintiff did not bar recovery by her in the action; (2) error of the trial court in admitting parol evidence to vary the terms of the release.

Over specific objections of defendant's counsel, the district court permitted plaintiff to testify that she did not read the release; that she thought she was signing a document which only released her own insurance company for the damages sustained to plaintiff's automobile; and that in signing the release she trusted her own insurance company or its representative.

Plaintiff does not claim on this appeal that the signing of the release was the result of any fraud, trickery, deceit, imposition, representation, inducement, or overreaching on the part of the defendant, or any person representing or purporting to represent the defendant. There is no contention that any close, friendly or confidential relationship existed between the plaintiff and the defendant. While the record shows that the plaintiff had attended school for only eight years, the record discloses that she had been married for sixteen years, and was the mother of two children, the oldest of whom was 15 years and the youngest was nine. Plaintiff's husband testified that his occupation was that of an operating engineer, and that he had been so employed for 25 years. He further testified that his wife brought the release for...