Western Md. Dairy Corp. v. Brown

• Decision Date: 21 November 1935
• Docket Number: 2,3.
• Parties: WESTERN MARYLAND DAIRY CORPORATION ET AL. v. BROWN. RUBINSTEIN ET AL. v. BROWN.
• Court: Maryland Court of Appeals

181 A. 468

WESTERN MARYLAND DAIRY CORPORATION ET AL. v. BROWN.

RUBINSTEIN ET AL. v. BROWN. ^[a1]

169 Md. 257

Nos. 2, 3.

Court of Appeals of Maryland

November 21, 1935

Appeals from Baltimore Court of Common Pleas; Joseph N. Ulman, Judge.

Action by Mrs. Walter Brown, sometimes known as Patricia Lamonte against the Western Maryland Dairy Corporation, also doing business under the name of the Fairfield-Western Maryland Dairy, and others. From an adverse judgment, two appeals were taken by defendants.

Affirmed.

Argued before BOND, C.J., and URNER, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

H Beale Rollins and F. Gray Goudy, both of Baltimore (L Wethered Barroll and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellants.

Joseph Sherbow and Nathan Posner, both of Baltimore, for appellee. SLOAN, Judge.

We have here two appeals in one record in a case wherein a judgment was recovered against the owners of two motor vehicles and their respective drivers, from which they all appeal. It is the same accident which was the subject of the case of Zeller v. Mayson (Md.) 179 A. 179. In that case the questions decided were the legal sufficiency of the evidence of the defendants' negligence, and whether the plaintiff Sylvia Mayson, was guilty of such contributory negligence as a matter of law as to disentitle her to recover. On both of these questions this court held for the plaintiff, and the judgment of the trial court was affirmed. The plaintiff (appellee), Mrs. Walter Brown, also known as Patricia Lamonte, and Sylvia Mayson, were passengers in a taxicab of the Peerless Cab, Inc., driven by Max Rubinstein, when it collided with a truck of the Western Maryland Dairy Corporation, driven by Gustav B. Zeller, at the intersection of Baltimore and Liberty streets in Baltimore. Of course, there was actually the same set of facts in both cases, aside from the difference in the nature and extent of the injuries of the respective plaintiffs, and the recital of them in both records being substantially the same, there is no need or excuse to here repeat the facts of the accident already stated in the opinion in Zeller v. Mayson, at the last term of this court. On the authority of the decision in that case, we must hold that there was legally sufficient evidence of negligence of all of the defendants to take the case to the jury, and that the plaintiff was not guilty of such contributory negligence as to entitle the defendants to a verdict as a matter of law.

In the case of Mrs. Brown, there was an important issue not present in the Mayson Case, and that was the effect of a release signed by the plaintiff here an hour or two after the accident, in the Mercy Hospital at Baltimore. In addition to the general issue plea, Max Rubinstein and Peerless Cab, Inc., pleaded a release to them from the plaintiff. Gustav B. Zeller and the Western Maryland Dairy Corporation pleaded that the plaintiff had, after the accident, given a general release to the Peerless Cab, Inc., which appeared from the declaration to have been a joint tort-feasor with the other defendants, and that it was thereby also released. Lanasa v. Beggs, 159 Md. 311, 151 A. 21; Elling v. Travers, 162 Md. 597, 160 A. 789. The plaintiff's replication to the pleas of release was that the release was procured by fraud.

It appears from the evidence that immediately after the collision, Mrs. Brown, the plaintiff in this case, was taken to the Maryland University Hospital, and her companion, Sylvia Mayson, to the Mercy Hospital. She was rendered unconscious by the accident, but was conscious when she was treated and bandaged at the hospital. Her injuries did not require her to remain at the hospital, though she was under the care of a physician for three months before she was able to resume her occupation. In about an hour after the accident she left the University Hospital and was driven to the Mercy Hospital whither she learned Miss Mayson had been taken. She did not know who took her there. When she arrived at the Mercy Hospital, Miss Mayson was in the accident room. Mrs. Brown waited in the reception room for news of her friend, who was more seriously injured. A few minutes after Mrs. Brown's arrival at the Mercy Hospital a young man whom she did not know, but who turned out to be Paul Kaiss, a claim agent for Peerless Cab's insurer, came into the room where she was. Her story of what happened is: "Well, I was there for a few minutes and some man came over to me and started bothering me to sign some kind of a paper. I refused him two or three times and he kept insisting, and I heard Miss Mayson crying in the next room, where she was being treated, and I was in such great pain that evidently I must have signed the paper because they let me alone." "The only thing he kept saying was 'sign this paper, something for your benefit.' I don't remember what it was." She signed two copies of a release from liability to the Peerless Cab, Inc., in consideration of $5, and a statement of the accident, and indorsed a check for $5 from Markel Service, Inc., drawn by Kaiss, who testified that it was cashed, at his request, at the hospital, by a cabman. As to her condition, at the time, she said, "I couldn't stop crying for one thing, and I was very shaky. I felt as though I was going to faint every minute."

Paul Kaiss testified for the defendant Peerless Cab, Inc., that the first person he interviewed was "Miss Lamonte," from whom he obtained a statement of the accident and collision. "She gave me the information and I wrote it down and she looked it over and signed it." "After I had received the statement I saw it was not a case of liability so far as I was concerned." In spite of this conclusion he "spoke to her about settlement in the matter," saying it was their custom to make some sort of a settlement regardless of responsibility to save the cost of defense of suit. He said "she asked me for, I think, twenty five dollars. I told her I could not pay very much because it wasn't our fault, and I finally offered five dollars which she accepted, and I drew up a set of releases and she signed them." He stated in the releases that she had been treated at the Mercy Hospital, a fact which he assumed because he found her there. Asked by the court whether she read the release before signing it, Kaiss said, "She looked at it," then asked whether he had read it to her, said he had not. If she had read it, she would have seen that the apparent releasee was the Peerless Cab, Inc., and that it erroneously stated the hospital to which she had been taken. He said it took about fifteen minutes to interview her, get her statement, fill in two forms of release, and effect a settlement. He was so eager to obtain releases that as soon as he had finished with the plaintiff, he made persistent efforts to get into the room where Miss Mayson was being attended to, and it was only because of her condition that he failed to interview her; all of which is evidence to show the eagerness of Kaiss to secure releases and the speed with which he worked. The general rule is that one is bound by what he or she signs, and is presumed to know the contents, nature, and consequences of a contract so signed, but when such a paper as is here in evidence is attacked on the ground of fraud in its execution, the court is entitled to hear the facts and circumstances under which it was executed, otherwise fraud might be an unascertainable fact. There is evidence here from which the jury might conclude that the plaintiff was so rushed by the insurer's agent that she was not given time to read what she was signing, nor to comprehend what she was doing.

When a plea of release is impeached, the burden is on the plaintiff to show by legally sufficient evidence that the release lacked genuineness, or was procured by fraud, duress, or imposition amounting to fraud. Hammond v. New York, P. & N. R. Co., 128 Md. 442, 97 A. 1011.

A mere scintilla of evidence will not be sufficient. As said by Justice Sharswood in Pennsylvania R. Co. v. Shay, 82 Pa. 198, many times cited with approval by this court, "It has been more than once held that it is error to submit a question of fraud to the jury upon slight parol evidence to overturn a written instrument. The evidence of fraud must be clear, precise, and indubitable; otherwise it should be withdrawn from the jury." Ætna Casualty & Surety Co. v. State, use of Hendrichs, 162 Md. 49, 57, 158 A. 45.

The plaintiff has cited several cases to the effect that the payment of a nominal or insignificant sum of money in settlement of serious injuries is of itself some evidence of fraud. The rule in this state, however, as stated in Poe's Pleading (Tiffany Ed.) § 653, is: "Unless impeached for fraud or duress or traversed as not genuine this defense will be complete and the plaintiff will not be heard to allege or allowed to prove that it was without consideration or that the amount paid was in reality not all that was due." Hammond v. New York, P. & N. R. Co., 128 Md. 442, 447, 97 A. 1011, and cases there cited. Nor is carelessness in the execution of a release an excuse. Spitze v. Baltimore & O. R. Co., 75 Md. 162, 23 A. 307, 32 Am. St. Rep. 378. In this court it has been uniformly held that the facts and circumstances attending the signing of a release, or the payment of the consideration, as the case may be, are controlling.

The case of Hammond v. New York, P. & N. R. Co., supra, is an illustration of a case wherein the consideration paid was inadequate compensation for the injuries sustained and expenses incurred, but without legally sufficient evidence that fraud was practiced or duress imposed in procuring the release. In Spitze v. Baltimore & O. R. Co., supra, the plaintiff's complaint...