Pacific Gas & Elec. Co. v. Almanzo

• Decision Date: 07 June 1921
• Docket Number: Civil 1857
• Citation: 22 Ariz. 431,198 P. 457
• Parties: PACIFIC GAS & ELECTRIC COMPANY, a Corporation, Appellant, v. ANGEL ALMANZO and DOLORES ALMANZO, Appellees
• Court: Arizona Supreme Court

198 P. 457

22 Ariz. 431

PACIFIC GAS & ELECTRIC COMPANY, a Corporation, Appellant, v. ANGEL ALMANZO and DOLORES ALMANZO, Appellees

Civil No. 1857

Supreme Court of Arizona

June 7, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Reversed and remanded.

Mr. R E. Sloan, Mr. C. R. Holton, Mr. E. G. Scott, and Messrs Bullard & Jacobs, for Appellant.

Mr. T J. Croaff and Mr. S. B. Pugh, for Appellees.

OPINION

McALISTER, J.

This action was brought under the Employers' Liability Law (Rev. Stats. 1913, pars. 3153-3162) by Angel Almanzo and Dolores Almanzo, appellees, against the Pacific Gas &amp Electric Company, a corporation, appellant, to recover damages for the death of their minor son, Jesus Almanzo, and from a judgment for them in the sum of $3,000 and an order overruling its motion for a new trial, appellant appeals.

It appears from the complaint that appellant was engaged in erecting a building, the framework of which was iron and steel, and that in the prosecution of this work a derrick run by electric power was used for hoisting materials; that Jesus Almanzo, a boy about nineteen years of age, was employed as a laborer in connection with this work, and while in the performance of his duties as such laborer, on August 28, 1919, was seriously injured by the derrick's breaking and falling upon him, and that within a few hours thereafter he died from the injury; that the accident arose out of the employment and was due to a condition or conditions of such occupation or employment, and not to the negligence of said Jesus Almanzo; that said Jesus Almanzo was able-bodied, unmarried, without any estate, but was receiving $3 per day at the time of his death, and was the sole support of his parents, who had four other children, ranging from eight to seventeen years of age.

A general demurrer, which was overruled, a plea in bar, and a general denial constitute the answer. In bar of the action appellant alleged that on August 29, 1919, the appellees, Angel Almanzo and Dolores Almanzo, for a consideration of $800, made, executed and delivered to the appellant a release from any and all actions, causes of action, claims, or demands by reason of any damages or loss which they had sustained, or might thereafter sustain, in consequence of the death of their son. The release is in the words and figures following, to wit:

"In consideration of the payment of five hundred ($500) dollars, to us in hand paid by the Pacific Gas & Electric Company, the receipt whereof is hereby confessed and acknowledged, and in consideration of the further payment of the funeral expenses, not exceeding two hundred and fifty ($250) dollars, and the bill of the St. Joseph's Hospital, not exceeding twenty-five ($25) dollars, and the bill of Dr. Brockway, not exceeding twenty-five ($25) dollars, we, Angel Almanzo and Dolores Almanzo, father and mother, respectively, of Jesus Almanzo, deceased, a minor of the age of eighteen years, jointly and severally, do hereby release and forever discharge the said the Pacific Gas & Electric Company from any and all actions, causes of actions, claims, and demands for, upon, or by reason of any damage, loss, or injury which heretofore have been or which hereafter may be sustained by us or either of us in consequence of that certain accident occurring on or about August 28th, 1919, at the plant of the said the Pacific Gas & Electric Company in the city of Phoenix, county of Maricopa, and state of Arizona, wherein the said Jesus Almanzo sustained diverse injuries, both internal and external, resulting in his death.

"It being further agreed and understood that the payment of the said five hundred ($500.00) dollars and the further payment of the said funeral, hospital, and doctor expenses is not to be construed as an admission on the part of the said the Pacific Gas & Electric Company of any liability whatever in consequence of said accident.

"In witness whereof we have hereunto set our hands and seals, respectively, this 29th day of August, 1919.

"ANGEL ALMANZO.

her

DOLORES X ALMANZO.

mark

"Witness to mark:

"LASSER H. GORNETZKY.

W. C. HORNBERGER."

In their reply appellees admit signing the release, but allege that it was procured by duress, undue influence, fraud, and misrepresentation, and in support of such allegations set up:

That the release was presented to appellees at a time when the body of their son was unburied and while both of them were suffering great mental anguish and were weak from weeping, and that they were at said time incapable of resistance against the importunities made by defendants to compel them to sign the same; that at said time Lasser H. Gornetzky and W. C. Hornberger presented to them an instrument for their signatures and offered to pay them $500 and all the funeral expenses and doctor bills on account of the injury and death of their son; that these plaintiffs were then asked numerous questions by the said representatives of the defendant regarding their affairs, and refused at first to consider the release and requested said parties to leave them alone and come back some other time, which they refused to do; that "the defendant through its said representatives stated to these plaintiffs at said time that, if they did not take this money and sign the said release which they had presented to them that night, they would not have an opportunity to do so again, and represented to the plaintiffs that the death of the deceased was caused by his own fault, and that, unless they accepted the money and signed the paper at this time, they could recover nothing on account of his said death; that these plaintiffs did not know at said time that the said statement that the injury and death of the deceased was caused by his own negligence was untrue, and did not know how same was caused, but relied upon the representations of the defendant aforesaid, which representations were untrue and fraudulent, and the plaintiffs only signed their names and accepted the said sums on account of relying upon the same; that, in fact, the deceased met his death while in due care for his own safety, and these plaintiffs have since learned that the defendant is liable to them under the liability act for damages in a large amount, as set out in their complaint; that at the time of signing said release these plaintiffs believed in and relied upon all the representations made by the defendant, and on account of the mental agony and suffering and weakness of will which they were undergoing at said time and in the death chamber, as aforesaid, and the persistence of said agents of the defendant, were not competent to fully consider the said matter and were unduly influenced and could not resist the said importunities to sign the said paper; that the said amount so received by them and for their benefit is inadequate and unconscionable and does not adequately compensate them for the damage received by them in the premises."

The employment, its hazardous character, and the fact that the injury resulting in death was due to a condition of the employment, and not to the negligence of the deceased, are in no way contested. The defense, other than a claim that the award is excessive, is a settlement as evidenced by the release. The court eliminated the question of undue influence in procuring the release by instructing the jury that there was not sufficient evidence to sustain such charge, but submitted its procurement through fraud and misrepresentation. Appellant urges that the reply does not allege, nor does the evidence disclose, any facts establishing fraud or misrepresentation, for the reason that the allegation as well as the proof in substantiation of it is merely an opinion of the officers of the defendant company and is not therefore actionable. It is true as a general proposition that the expression of an opinion, which is understood to be only an opinion does not render one liable for fraud. People v. Peckens, 153 N.Y. 576, 47 N.E. 883; Hedin v. Minneapolis Surgical Institute, 35 L.R.A. 417, note. There are many exceptions to this general rule, however, for "it is often impossible to determine, as matter of law, whether a statement is a representation of a fact, which the defendant intended should be understood as true of his own knowledge, or an expression of opinion, and when such is the case the question is one for the jury." 12 R.C.L. 446, par. 190; Stubbs v. Johnson, 127 Mass. 219. "Each case must in a large measure be adjudged upon its own circumstances." Hedin v. Minneapolis Surgical Institute, above; Reeves v. Corning (C.C.), 51 F. 774. This necessitates a brief review of the facts concerning the procuring of the release.

The accident occurred about three o'clock in the afternoon and the boy was immediately removed to the hospital, where he died about two or three hours afterwards. The father heard of the accident, went immediately to the plant, and then to the hospital where the boy had been taken. From there he went home, returning very soon afterwards to the hospital, where he remained until the boy died, about 6:30 o'clock, after which he returned to the plant to inform Mr. Hornberger, superintendent of defendant company, of the death, but did not find him. Someone at the plant, however, telephoned the superintendent of the accident and death, and that the father was there looking for him. He then went home, and in an hour or so Mr. Hornberger arrived there and took him to the company's office, where they found Mr. Aller, the general manager. Soon Lasser H. Gornetzky, who had charge of the claim department of the Carl H. Anderson Insurance Agency, through which the defendant company had been insured covering injuries to its employees,...