Summary
In Swofford v. Glaze, 207 Ga. 532 (63 S.E.2d 342), the plaintiff sought to recover damages for the alleged negligent homicide of her husband and to cancel a paper she signed reciting the receipt of $1,000 and releasing the defendant from all liability on account of his death.
Summary of this case from Sorrells v. Atlanta Transit SystemOpinion
17305.
JANUARY 9, 1951.
REHEARING DENIED FEBRUARY 15, 1951.
Cancellation, etc. Before Judge Edmondson. Hall Superior Court. September 9, 1950.
Frank Lawson and Wheeler, Robinson Thurmond, for plaintiff.
Sloan Telford and Sidney O. Smith Jr., for defendant.
( a) It was not error to grant the motion to strike certain allegations of the petition.
( b) It was not error to direct a verdict for the defendant.
( c) It was not error to deny the motion for new trial.
No. 17305. JANUARY 9, 1951. REHEARING DENIED FEBRUARY 15, 1951.
Mrs. Mary Swofford filed her suit against Garland H. Glaze, seeking to recover damages in a stated amount for the death of her husband, who was alleged to have been killed in an automobile wreck because of the alleged negligent operation of the automobile by Glaze. The petition also sought to set aside and cancel a certain release from liability which had been executed by the petitioner to the defendant; alleged as the reason for the cancellation of the release the following: "On or about May 3, 1948, E. W. Hope, an adjuster for St. Paul Mercury Indemnity Company, came to the home of petitioner's father, J. A. Swofford, where she was staying for the purpose of discussing with her an adjustment with reference to the death of her husband.
"Petitioner was still in a daze from the shock of her husband's untimely death, prostrated with grief and wholly unable to mentally comprehend her rights and responsibilities with reference to any matter or business of importance.
"The said E. W. Hope represented to petitioner that he represented the insurance company which had the insurance on Mr. Glaze's car, that there was no liability upon the part of Mr. Glaze to petitioner, and that if she resorted to legal action she would not get anything, but that he thought he could get his company to pay $1000 in settlement of any liability against Mr. Glaze arising out of the death of petitioner's husband.
"Petitioner had never had any business experience and was wholly ignorant of her legal rights. She was mentally below par, greatly bewildered, and wholly incapable of making an important decision relating to a matter of such importance because of her grief, nervous and mental shock arising out of the death of her husband so recently, that she had not had time to recuperate and pull herself together.
"Petitioner, realizing her incapacity to cope with a problem of such magnitude to her at the time, suggested that action by her on the matter be deferred until she had time to think it over and obtain advice. E. W. Hope insisted that it be closed out that day and that if it was not she would never get anything.
"The said E. W. Hope was an experienced insurance adjuster, mentally alert, and possessed a full understanding of the nature of the transaction involved, and well knew that $1000 was a wholly inadequate consideration for the death of plaintiff's husband under the circumstances involved.
"Petitioner was a new widow with the shock of the recent loss of her husband still upon her. She was unlearned in the law, knew nothing of what her legal rights were with respect to the death of her husband and was at the time still mentally incapable of understanding the nature and consequences of an action of making a settlement for the death of her husband, and was still under the necessity of taking drugs to control her nervous condition. E. W. Hope was, as already alleged, an experienced adjuster with full knowledge of her rights and of the value of the life of petitioner's husband under the facts herein set forth.
"The sum of $1000, as compared to the actual value of the petitioner's husband, was wholly inadequate, insignificant, and amounted to practically nothing for the support and maintenance of petitioner and her children, being a little more than enough to pay the funeral bill.
"At the time petitioner, at the instance of E. W. Hope, signed a written document which she has been informed amounted to a complete and final release of the defendant from any and all liability to her arising out of the death of her husband.
"The said E. W. Hope did not give to her a copy of the instrument she signed, and she is not for that reason able to attach a copy thereof as an exhibit to this her petition, but she does allege upon information and belief that the substance of said document was to grant a release to the defendant from any liability to her growing out of the death of her husband, and petitioner avers that said document is either in the possession of the defendant or in the possession of his insurance carrier, and in either event he is fully advised of the terms thereof.
"The obtaining of said document by the said E. W. Hope under the circumstances herein set forth was and is a legal fraud upon petitioner, and said document was void.
"The statements hereinbefore set forth as having been made by E. W. Hope were false and known to be false by him at the time they were made, and were made by him to petitioner for the purpose of inducing her to act in signing said release, as a result of which said release is and was void, and petitioner prays that it be canceled."
The petition alleges that the wreck occurred April 3, 1948, and that the petitioner's husband died on April 5, 1948.
At the conclusion of the evidence offered by the plaintiff, the defendant made a motion to strike that portion of the petition above quoted, seeking cancellation of the release. This motion was sustained. The defendant then introduced in evidence the release and the canceled draft in the sum of $1000, paid to the plaintiff under the terms of the release. The trial court then directed a verdict in favor of the defendant. Exceptions pendente lite were duly preserved as to these rulings. A motion for new trial was duly filed and overruled. The exceptions here are based upon the exceptions pendente lite and the judgment overruling the motion for new trial as amended.
"Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad." James v. Maddox, 153 Ga. 208 (3) ( 111 S.E. 731). See also Smith v. Scarborough, 182 Ga. 157 ( 185 S.E. 105), and Swofford v. Glaze, 206 Ga. 574 ( 57 S.E.2d 823). "A court of equity will not afford relief to a party who, with all the means of protecting himself against the imposition of the other party, abandons them and relies on his statements." Castleberry v. Scandrett, 20 Ga. 242. "Misrepresentations as to a question of law `can not constitute remedial fraud, because every one is presumed to know the law and therefore can not in legal contemplation be deceived by erroneous statements of law, and such representations are ordinarily regarded as mere expressions of opinion.' 26 C. J. 1207, 1208, § 106. And this is especially so where there is no confidential relationship between the parties. Claxton Bank v. Smith, 34 Ga. App. 265 ( 129 S.E. 142), and cit." Beckmann v. Atlantic Refining Co., 53 Ga. App. 671 (2) ( 187 S.E. 158).
In the instant case, under the allegations of the petition, the parties were dealing at arms length. There was no fiduciary relationship. The alleged statements of the agent and adjuster for the insurance company, to the effect that "there was no liability upon the part of Mr. Glaze to petitioner, and that if she resorted to legal action she would not get anything," were nothing more or less than the expression of an opinion by the adjuster and agent of the insurance company concerning an unliquidated claim. The plaintiff in the court below had no legal right to rely upon such an expression of opinion, and this allegation, therefore, does not amount to an allegation of fraud such as will avoid the release from liability executed by her.
2. "Weakness of understanding is not, of itself, any objection to the validity of a contract. . . The law, therefore, in fixing the standard of positive legal competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe. It holds . . that weak minds differ from strong ones, only in the extent and power of their faculties; but unless they betray a total want of understanding, or idiocy, or delusion, they cannot properly be considered unsound." Maddox v. Simmons, 31 Ga. 512, 528, and cases cited. See Boney v. Smallwood, 202 Ga. 411, 416 ( 43 S.E.2d 271).
In the instant case, the petition, stripped of its conclusions, simply alleged that the plaintiff in the court below was not experienced in legal and business matters, that the agent and adjuster of the insurance company was experienced and was an attorney at law, and that the plaintiff was suffering from grief and shock on account of the death of her husband almost a month before the release from liability was signed. All of these allegations, if proven, would be insufficient to cancel and set aside the release signed by the plaintiff. A mere reading of Bass v. Seaboard Air Line Railroad Co. 205 Ga. 458 ( 53 S.E.2d 895), cited and relied on by the plaintiff in error will disclose the vast difference in facts between that case and the case now under consideration.
3. It is contended that the sustaining of the motion to dismiss was error because the principles of law concerning "great disparity of mental ability and great inadequacy of consideration" were applicable. The allegations of the petition failed to measure up to the requirements of great disparity of mental capacity. See Pye v. Pye, 133 Ga. 246 ( 65 S.E. 424), Jones v. Hogans, 197 Ga. 404 ( 29 S.E.2d 568), Fuller v. Stone, 207 Ga. 355 ( 61 S.E.2d 467), and Hutchinson v. King, 192 Ga. 402 ( 15 S.E.2d 523).
Since the evidence upon the trial of the case on the question of fraud and mental incapacity was not as strong as the allegations of the petition, it follows that it was not error to sustain the motion to strike, to direct a verdict, and to overrule the motion for new trial.
Judgment affirmed. All the Justices concur, except Head, J., who dissents.