SMITH, Judge.
Mae Erck was
killed as the result of a collision between an automobile
driven by her husband, Louis Erck, and an oil
truck driven by defendant A. J. Bachand. Thereafter the
husband was appointed special administrator of the estate of
Mae Erck, deceased, and brought this action under SDC chapter
37.22 to recover damages for her wrongful death. As the Ercks
were without children, the action was brought for the sole
and exclusive benefit of Louis Erck. It resulted in a
judgment below for plaintiff in a substantial sum. By way of
defense, the answer alleged that Louis Erck had executed and
delivered to defendant a release in writing absolving him of
all liability in the premises. At the trial plaintiff sought
to prove that his signature to the release was procured by
duress. The trial court instructed the jury as follows
"As the court has pointed out to you in Instruction No
1, testimony and evidence has been submitted to you relating
to a release of liability wherein the plaintiff undertook to
absolve the defendant and the Hardware Mutual Casualty
Company from liability upon any claim for damages the
plaintiff might have then or thereafter asserted against the
defendant and said company or either of them.
You are instructed that if you find from the testimony in
this case that the release received in evidence, which
release you will have in your jury room, was obtained from
the plaintiff by means of duress or intimidation and that the
same was not voluntarily executed by him, you shall wholly
disregard said document in arriving at your verdict. If, on
the other hand, you shall find from the testimony submitted
that the release of liability was voluntarily signed by the
plaintiff and that the execution thereof by him was not
brought about by the use of duress or intimidation, it shall
be your duty to return a verdict in favor of the
defendant." Upon a motion for new trial, defendant
assailed the verdict on the ground that the evidence was
insufficient to show that the release was procured by duress
and has assigned the overruling of his motion for new trial
as error.
As background
to the consideration of this issue we reproduce
plaintiff's statement of facts dealing with the immediate
circumstances of the collision:
"About
one o'clock P. M., on a clear day, they (plaintiff and
wife) came to a point about 24 miles west of Lead where the
road turns sharply to the left and down an incline for about
600 feet. Plaintiff approached this portion of the road at a
speed of 15 to 20 miles per hour with brakes in good working
condition but found, upon making the turn, that the road was
icy and slippery and his car started to slip, slide, and
skid. Plaintiff did everything possible to control the car
applied the brakes and tried to keep it on the righthand side
of the road. But as it moved down the incline it became
entirely unmanageable and after slipping and sliding from one
side of the road to the other for a distance of about 150
feet one front wheel struck some exposed gravel which caused
the car to swing around and over to the left side of the road
with the front end of the car pointing in the opposite
direction. Making the turn when the car started to skid and
slide Erck and Sanders saw defendant, Bachand, coming up the
incline toward them over 600 feet away. Bachand, at the same
point, saw them and observed the Erck car when
it started to slip, skid and swerve and then sensed danger.
"Bachand
was coming from the opposite direction up grade. He was
driving a heavy oil truck with dual wheels which he could
stop on such incline within 40 feet. He was acquainted with
the highway and its condition at this curve and incline by
traveling over it that forenoon and also daily for several
years in hauling oil from a Wyoming refinery to his station
at Sturgis. He knew of the caution sign at the foot of this
incline. He was traveling at 40 or more miles per hour when
he first saw Erck's car in peril at the curve.
"Bachand
observed the Erck car slipping, skidding and swerving from
side to side on the highway and out of control as it traveled
about 150 feet down the incline. He did not slacken his speed
but was driving and crowding his truck at 45 or 50 miles per
hour to make the hill. Erck's car turned directly around
in the opposite direction going up grade on the right-hand
side of the highway where the accident occurred. Bachand was
then traveling at a higher rate of speed than when he first
observed Erck's car. When practically upon Erck's car
he sharply turned off the highway to the right. His speed was
then such as to force the right front wheel of this heavy
truck up over a 4-foot embankment. The truck stopped and then
rebounded back and sideways to the highway into and against
Erck's car. A heavy plank railing on the side of the
truck struck and crushed
the rear end of the automobile where sat Mrs. Erck who was
killed almost instantly."
The collision
occurred on March 6, 1941. Burial took place in eastern South
Dakota on March 10th, and plaintiff returned to his home in
Sturgis on the 15th of March. Thereafter, in the office of an
attorney, oher than those of record in the proceedings on
appeal, plaintiff signed a statement of the circumstances
surrounding the collision. This statement is dated March 22,
1941. He was then advised that the attorney represented the
Hardware Mutual Casualty Company. On or about March 29, 1941,
at about 10:30 P. M. that attorney called at
plaintiff's home. According to plaintiff "*** he
came in and I gave him a chair and he sat down and then he
asked me if I had any liability insurance and I said No, that
she had $1000 life insurance, so he said, 'By the way,
the insurance company has written me and it looks like they
might want to sue for the damage to their truck which is a
small amount of about $250.' I said, 'I think if any
body has any damages coming I am the looser,' and he said
'you brought on the whole thing, you know, and the
insurance company can put a manslaughter charge against
you,' and I said I didn't feel like fighting
anything; that I lost my wife and my dad is about ready to
pass on, and he says, 'I will see you; I think I can fix
it up."' On April 10, 1941, while plaintiff was in a
Sturgis store the attorney came in and said:
"'Let's come up to my office for a little bit; I
want to see you,' and I said I would be up in a little
while, and in 15 minutes or so I went up to his office. ***
He had that paper there, and he said 'I wonder if you
will sign this here; that will settle everything between you
and Bachand and the insurance company and we will drop the
manslaughter charge on it' so he handed it to me. *** I
went out there and I started reading and I couldn't get
anything out of it. The first party said this and the third
party said that, and I never read it, I just sat and looked
at it and I couldn't get any sense out of it, and he
finally come in and I sat and looked at him a while and then
he handed me a pen and I signed it. I believed what he told
me at my house ten days before. I had known of his ability
and standing as a good lawyer and relied on what he said. I
know I would not have signed it if it wasn't for the
representations he made."
The attorney
in question denies that manslaughter was mentioned or thought
of in connection with his conferences with plaintiff.
The
instrument in...
