Summary
In Pearce v. Pierce, 214 Miss. 344, 58 So.2d 824 (1952), involving a general release pleaded as a settlement of all claims, it was contended that the release involved only property damage.
Summary of this case from U.S. Fidelity Guaranty Co. v. HillmanOpinion
No. 38433.
May 19, 1952.
1. Release — absence of clear proof of fraud.
Where a written release plainly covered by its terms all damages both to person and to property resulting from an automobile collision and the plaintiff admits that he read it and knew its contents and thereupon accepted the payment mentioned therein, he could not maintain an action for personal injuries on the contention that the release embraced only damages to property when there was no clear and convincing testimony of fraud in the transaction as to any past or existing facts.
2. Release — merger of previous discussion or agreements.
A release made under the aforementioned circumstances merged all previous discussions and agreements, if any.
3. Release — when issue of validity of release need not be submitted to jury.
When under the testimony the defendant would have been entitled to a peremptory instruction upon the issue of the validity of the release heretofore mentioned, the fact that it was not submitted to a jury was not prejudicial error.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Marion County; SEBE DALE, Judge.
Glenn G. Young and W. Arlington Jones, for appellant.
I. The lower court erred in denying the appellant a jury trial on the question of the release, or the sufficiency of the release. Scott v. Nichols, 27 Miss. 94; Sheriff v. Rathborn, Hair Ridgeway Co., (Miss.), 42 So.2d 748; Hackler v. Natchez Southern Railway Co., et al., 157 Miss. 432, 128 So. 325.
II. The court erred in refusing to permit the appellant to introduce parol evidence that the release and the signing of same was obtained by fraud and misrepresentations. Hirschburg Optical Co. v. Jackson, 63 Miss. 21; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157; Henry v. W.T. Rawleigh Co., 152 Miss. 320, 120 So. 188; Ferguson v. Koch, (Cal.) 268 P. 342, 58 A.L.R. 1176, and note; Brown v. Ohman, (Miss.) 42 So.2d 209; Howie Bros. v. Walter Pratt Co. 83 Miss. 15, 35 So. 216; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295, 21 R.C.L. 932; McArthur, et al., v. Fillingame, 184 Miss. 721, 186 So. 828; State Highway Commission v. Powell, et ux., 184 Miss. 266, 185 So. 589.
Hall Callender, for appellees.
I. Whether the plea of settlement should be sustained was a question of law for decision by the court. Griffis v. Martin Oil Co., 127 Miss. 606, 90 So. 324; Y. M.V.R. Co. v. Adams, 81 Miss. 90, 32 So. 937; Carr, et al. v. Miller, 162 Miss. 760, 139 So. 851; Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351; 5 C.J.S., "Appeal and Error", Sec. 1464; Chap. 230, Laws 1948, Sec. 1; Salitan, et al. v. Horn, et al., 55 So.2d 444; 51 A.L.R. 49; Smith v. St. Louis S.F.R. Co., 73 So. 801; Alabama V. Ry. Co. v. Turnbull, 71 Miss. 1029, 16 So. 346; Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 42 So.2d 431; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; Chism v. Hollis, 152 Miss. 772, 118 So. 713.
II. The parol evidence offered by appellant did not constitute fraud. Ala V. Ry. Co. v. Kropp, 129 Miss. 616, 92 So. 691.
Appellant filed suit for personal and property damage arising out of an automobile collision. The answer of the defendants, appellees, pleaded a release and settlement of all claims. The contention of appellant is not that there was not a payment to, and a release executed by, him, but that it was understood that the release included only property damage. The release executed by the appellant is in the following form:
"Release In Full
"For the Sole and Only Consideration of ____ Three Hundred and No/100 ____ Dollars ($300.00) to me, paid, receipt of which is hereby acknowledged I hereby release and discharge Pierce Brothers and Ellis Pierce his or their heirs successors and assigns, and all other persons, firms or corporations who are or might be liable from all claims of any kind or character, which I have or may have against him or them, and especially because of all damages, losses or injury to persons or property, or both, whether known or unknown, developed or undeveloped, resulting or to result from accident on or about December 18, 1950, at or near Bunker Hill Community, Marion County, Mississippi and I hereby acknowledge full settlement and satisfaction of all claims of whatsoever kind or character which I may have against him or them by reason of the above mentioned damages, losses or injuries. "I have represented that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries and that no representations or statements regarding said injuries or regarding any other matter made by the persons, firms or corporations who are hereby released or any person or persons representing him or them or by any physician or surgeon by him or them employed has influenced me to any extent whatsoever in making this release.
"It is further understood and agreed the payment of said amount is not to be construed as an admission of liability upon the part of said person, firms or corporations; liability being by me or them expressly denied.
"All agreements and understandings between the parties hereto are embodied and expressed and the terms of this release are contractual and not a mere recital.
"I Have Read The Foregoing Release And Fully Understand It.
"Signed, sealed and delivered this 3rd day of January, 1951.
"In the presence of
Alford Pearce (Claimant sign below) Mrs. Mae Speights Hathorn Route No. Two C.R. Pearce (Seal) Bassfield, Miss."
We need not set out the testimony by which the appellant sought to show that there was a misunderstanding or fraud in its procurement, or that it was orally agreed that it covered only damage to his car. (Hn 1) Appellant testified that before he signed it, he read it and knew its contents, also that he accepted and cashed a draft issued pursuant to the agreement in the sum of three hundred dollars, on which was written "Payment of all claims arising out of an accident. Date of accident, December 18, 1950." There is no issue whether this referred to the collision which is the basis for the suit herein.
While there are contentions alleging fraud, and representations at variance with the terms of the contract of release, fraud as to past or existing facts was neither alleged with conciseness nor proven with clear and convincing testimony, and, in view of a full understanding of the terms of the release, voluntarily executed, together with acceptance of the draft issued thereunder, the attack upon the release must fail. (Hn 2) It merged all previous discussions and agreements, if any. See Koeing v. Calcote, 199 Miss. 435, 25 So.2d 763; Yazoo M.V.R. Company v. Sideboard, 161 Miss. 4, 133 So. 669.
The appeal is from a judgment for the defendants.
(Hn 3) It is assigned for error that the issue raised by the plea ought to have been tried to a jury, a request for which was denied. Assuming that such request ought to have been granted, as to which see Scott v. Nichols, 27 Miss. 94; Chapter 230, Laws of 1948, as amended, no error may be predicated of such refusal, since, under the testimony the plea was rightfully sustained as a matter of law. Had it been tried to a jury the defendant would have been entitled to a peremptory charge, or in the absence of a request therefor a verdict and judgment for the plaintiff would lack support. Compare Plummer-Lewis Company v. Francher, 111 Miss. 656, 657, 71 So. 907, as to procedure followed. The error, if any, is therefore not prejudicial.
Affirmed.
McGehee, C.J., and Kyle, Holmes and Ethridge, JJ., concur.