Opinion
Rehearing Denied March 28, 1929
Hearing Granted by Supreme Court April 29, 1929
Appeal from Superior Court, City and County of San Francisco; Franklin A. Griffin, Judge.
Action by Walter Mairo against the Yellow Taxi Cab Company of California. Judgment for defendant, and plaintiff appeals. Affirmed.
COUNSEL
Alfred J. Hennessy, of San Francisco, for appellant.
Cooley, Crowley & Gallagher, of San Francisco, for respondent.
OPINION
BURROUGHS, Justice pro tem.
This is an action for damages for personal injuries alleged to have been suffered by the plaintiff on February 11, 1925, through the negligence of a taxicab driver in the employ of defendant Yellow Taxi Cab Company of California. Upon stipulation of the parties, the action was dismissed as to all other defendants. The cause was tried with a jury. At the conclusion of the evidence, the jury, under the instructions of the court, returned a verdict for the defendant, and from the judgment entered therein the plaintiff appeals.
At the close of plaintiff’s case in chief, the defendant introduced in evidence three separate instruments, each one signed by the plaintiff and purporting to release the defendant from all liability which it might have incurred by reason of the accident which was the cause of plaintiff’s injury and the foundation for this action.
The first one is dated February 14, 1925, and recites a consideration of $1, and a further consideration of medical care and hospital services. Another is dated March 18, 1925, and the consideration named is $25, and the last release recites a consideration of $14.
In rebuttal of this evidence plaintiff admitted that he signed all of said releases and received the consideration set forth in each one thereof, but testified that the first release was obtained by fraudulent representations made by one Dr. Ryan that it was a permit to operate. This release was signed in the hospital three days after the accident. Plaintiff further testified that the second release was represented to him as being a receipt for $25, which was given to him for a suit of clothes to replace the one he was wearing at the time of the accident. He also testified that the third release was represented to him as being a receipt for wages to help him out. Both the last-named releases were executed after plaintiff had left the hospital.
It appears from the undisputed evidence that on February 12, 1925, the day following the accident, that plaintiff, in the presence of Dr. Ryan, signed a statement that he had no dependents. According to plaintiff’s own testimony, he only signed one document in the presence of Dr. Ryan. The undisputed evidence of Daniel J. O’Brien, Jr., was that, when the release was signed on February 14, 1925, Dr. Ryan was not present; that Mr. Miller, an attorney, read the release to the plaintiff; that it was read slowly and distinctly, and plaintiff was informed that it released the defendant from all liability arising out of the accident; that, although the defendant did not consider it was at fault, it would, as a consideration, pay the hospital and doctor bills incurred by plaintiff; and that plaintiff then made the statement that that was what he wanted, and he also said the driver was no more at fault than he was.
From this undisputed evidence it is clear that the release of February 14th stands unimpeached by any evidence in the record, and justified the court’s action in instructing the jury to return a verdict for the defendant. Estate of Sharon, 179 Cal. 447, 177 P. 283.
This conclusion renders unnecessary any further discussion concerning the other releases or the claim of the defendant that the plaintiff as a matter of law was guilty of contributory negligence.
Judgment affirmed.
We concur: NOURSE, Acting P.J.; STURTEVANT, J.