Jimenez v. O'Brien

• Court: Utah Supreme Court
• Writing for the Court: WOLFE; PRATT; WADE
• Citation: Jimenez v. O'Brien, 213 P.2d 337, 117 Utah 82 (Utah 1949)
• Decision Date: 02 December 1949
• Docket Number: No. 7264,7264
• Parties: JIMENEZ, v. O'BRIEN et al.

Page 337

213 P.2d 337

117 Utah 82

JIMENEZ, v. O'BRIEN et al.

No. 7264.

Supreme Court of Utah.

Dec. 2, 1949.

Stewart, Cannon & Hanson, Salt Lake City, E. F. Baldwin, Jr., Salt Lake City, for appellant.

Callister, Callister & Lewis, Salt Lake City, Ray R. Christensen, Salt Lake City, for respondent.

WOLFE, Justice.

Action by Jess Jimenez, plaintiff and respondent, against Ray O'Brien and Boyd B. Broadwater for damages for injuries sustained when an automobile driven by Broadwater and owned by O'Brien collided with an automobile in which the plaintiff was a passenger. The court below directed a verdict in favor of O'Brien, but directed a verdict against Broadwater. The jury found that two releases signed by Jimenez releasing O'Brien and Broadwater from liability for the consideration of $1708.40 paid to Jemenez by the insurer of the O'Brien car were void in that they were signed by Jimenez when he did not have the mental capacity to contract. This amount of $1708.40, however, was deducted by the jury from the $5000 verdict returned by them, leaving a net verdict of $3291.60. The defendant Broadwater prosecutes this appeal contending, among other things, that the evidence is insufficient to support the finding that Jimenez did not have the mental capacity to contract when he signed either of the two releases.

The facts surrounding the releases are these: Following the accident on July 6, 1945, in which Jimenez was injured, he was taken to the St. Mark's Hospital in Salt Lake City where his injuries were diagnosed as a severe brain contusion. Jimenez remained unconscious for two to two and one-half weeks. His condition, however, gradually improved after the eighth or tenth day in the hospital. Benjamin Duncan, an insurance adjuster for the insurer of the O'Brien car, called to see Jimenez on July 13th, but Jimenez' condition rendered him incapable of carrying on a conversation. Duncan returned to the hospital in about a week at which time Jimenez was able to converse with Duncan, but he was unable to recall the facts of the accident. Duncan made repeated visits to see Jimenez, six or seven times in all. On August 13, 1945, Duncan took with him one Alice Pannier, a shorthand reporter, to the hospital where she took down a series of questions asked by Duncan and answered by Jimenez concerning the latter's family, employment, and his plans to leave for Colorado to stay with his brother when discharged from the hospital the next day. Jimenez testified at the trial that he had no recollection of this conversation. The evening of that same day, Duncan testified, he returned to the hospital and discussed a settlement with Jimenez. A tentative settlement of $1000 general damages, plus all hospital and doctors' bills was agreed upon. The next morning Duncan further testified, someone phoned him from the hospital requesting that he come there. When he arrived he found Jimenez, fully dressed, sitting on the bed conversing with a woman friend. Duncan having in the meantime ascertained the amount of the doctor and hospital bills, presented to Jimenez three bank drafts. One draft was payable to Jimenez and the St. Mark's Hospital for $182.05; another payable to Jimenez and Dr. Alma Wright for $500; and the third payable to Jimenez for $1000. A usual form release stating that Jimenez was absolving both O'Brien and Broadwater from all liability arising out of the accident was signed by Jimenez, he adding the words in his own handwriting, 'I have read this release and understand it to be a release in full.' In addition, and in accordance with the practice of the insurance company, Duncan wrote in longhand what he called a supporting statement. This statement recited the facts of the accident; that Jimenez was hospitalized; and that Jimenez understood that $1682.05 (the total amount of the three drafts heretofore mentioned) was all the money he was to receive from any source in connection with the accident. Jimenez signed this statement: 'This statement is true. Jess Gimenez.' The drafts were indorsed by their respective payees and cashed within a short time. On each draft above the indorsement it is stated that indorsement of the draft constitutes a release of all claims the undersigned may have against the insurance company and all persons arising out of the accident referred to on the face of the draft.

The following September 5th, Jimenez and his former wife, Rita Gounis, called at the insurance office where Duncan was employed. There, Duncan testified, Jimenez reminded him of his promise to pay all the hospital bills and stated that there was one bill which Jimenez had failed to mention to Duncan before. This bill was for $26.35 for emergency treatment rendered to Jimenez at the Salt Lake General Hospital immediately after the accident and before he was removed to the St. Mark's hospital. Duncan thereupon issued a draft, similar to the other drafts heretofore mentioned, for the amount of this bill. Immediately after Jimenez and Mrs. Gounis had left Duncan's office, it occurred to the latter that he had neglected to have Jimenez sign a release in consideration for the draft just given him. Duncan pursued Jimenez and caught up with him before he had left the office building. Jimenez voluntarily returned to the office where he signed a release similar to the one signed by him in the hospital on August 14th. This release was also signed at the bottom by Jimenez, 'I have read this release and understand it to be a release in full. Jess Gimenez.'

Several months later, Jimenez consulted an attorney and this action was commenced to recover damages for injuries suffered in the accident. The defendants answered, alleging that Jimenez had released them from all liability for a good and valuable consideration. The plaintiff replied, admitting execution of the releases, but alleging that he was not mentally competent to contract at the time he signed the releases.

Counsel for both sides cite Hatch v. Hatch, 46 Utah 218, 148 P. 433, 438, as establishing what degree of mental capacity is necessary to be competent to contract. There we said, 'In ordinary contracts the test is, Were the mental faculties so deficient or impaired that there was not sufficient power to comprehend the subject of the contract, its nature and its probable consequences, and to act with discretion in relation thereto, or with relation to the ordinary affairs of life?' We expressed approval again of this test in O'Reilly v. McLean, 84 Utah 551, 37 P.2d 770, and Burgess v. Colby, 93 Utah 103, 71 P.2d 185.

Instruction number seven to the jury read: 'To avoid a release from liability for personal injuries, the plaintiff in this case, Jess Jimenez, has the burden of proving, by a preponderance of evidence, the invalidity of each release by clear and unequivocal and convincing evidence; otherwise the release and settlement are binding upon plaintiff and constitute a complete defense. * * *' While this instruction is somewhat confusing in that the court attempted to apply two different requirements as to the weight of the evidence, we think the jury was adequately instructed that before they could return a verdict for the plaintiff, it must be found by them by clear, unequivocal and convincing evidence that the releases were invalid. This requirement that a release can be avoided only if the evidence is clear, unequivocal and convincing that it is invalid, is well supported by the authorities. Miller v. Spokane International Ry. Co., 82 Wash. 170, 143 P. 981; St. Louis and S. F. Ry. Co. v. Chester, 41 Okl. 369, 138 P. 150; Moruzzi v. Federal Life and Casualty Co., 41 N.M. 35, 75 P.2d 320, 115 A.L.R. 407; and Wallace v. Skinner, 15 Wyo. 233, 88 P. 221.

We agree with the contention of the defendant that the jury could not have reasonably found by clear, unequivocal and convincing evidence that Jimenez was mentally incompetent to contract on both August 14, 1945, and on September 5, 1945. Therefore, it is necessary to detail and analyze the evidence relied upon by the plaintiff to support the verdict. It is to be remembered that 'clear, unequivocal and convincing evidence', is a higher degree of proof than a mere 'preponderance of the evidence,' and approaches that degree of proof required in a criminal case, viz., 'beyond reasonable doubt.'

Jimenez's own testimony which is the best evidence of his understanding on those dates does not support his contention, but in fact supports an opposite position. Upon cross examination he testified that he did not remember seeing Duncan at the hospital, nor did he know him until the trial had commenced. He did admit, however, that he remembered his name. He testified that he voluntarily signed a paper on August 14, 1945, while he was still in the hospital, but did not recall any conversation had with Duncan concerning a settlement of his claim. He remembered the day because it was V-J Day (the day of cessation of hostilities in World War II). He thought he had read the paper before he had signed it, but did not remember what it said. He did not recall having experienced any difficulty in cashing the $1000 draft.

Then for the purpose of impeaching Jimenez's testimony, counsel for the defendant read the following from Jimenez's deposition taken on September 12, 1947, ten months before the trial below.

'Q. While you were in the hospital did anyone come there to settle your claim on account of the accident of July 6, while you were in the hospital? A. Just that man Duncan.

'Q. How many times did he see you at the hospital? A. I have seen him more than once. I wouldn't know how many times. * * *

'Q. Do you remember talking to him in the hospital? A. Yes.

'Q. Do you remember what he said to you and what you said to him? A. I don't remember that at all.

'Q. You do remember discussing the accident with him? A. If he discussed the accident that I don't remember, either.

'Q. Do you remember whether he talked to you...