179 P. 449 | Cal. Ct. App. | 1919
The plaintiff appeals from a judgment that he take nothing by his action, and for costs in favor of defendant. The action is upon a complaint which states a cause of action for damages alleged to have resulted from a wrongful and forcible ejectment of plaintiff by defendant from its electric railway car. The answer denies the liability of defendant for damages, pleads contributory negligence of plaintiff, and sets up as an affirmative defense a settlement with plaintiff for all alleged damages, as shown by three separate agreements and releases, signed by the plaintiff and set out in full in the answer. Either of these releases is a complete defense to plaintiff's demand, if permitted to stand unimpeached. The plaintiff at no time filed the affidavit provided for by section 448 of the Code of Civil Procedure, and is held to have confessed the genuineness and due execution of these releases. No other averments or admissions by plaintiff as to the execution or binding effect of these releases appear in the record.
Prior to the date of trial the plaintiff demanded a jury, which demand was by the court denied, on the ground that the issues made and presented by the pleadings were not cognizable before a jury, and presented equitable issues alone. Upon the calling of the case for trial, a witness for the plaintiff was sworn and called to the stand; but thereupon defendant's counsel objected to the introduction of any evidence for plaintiff, on the ground that it appeared from the pleadings that said plaintiff had no cause of action against defendant, and upon the failure of plaintiff to make a tender of the sums of money admitted in open court to have been received from defendant at the time of the execution and delivery of the three releases pleaded in the answer, after an adjournment from 11:30 A. M. until 2 o'clock P. M., granted to enable plaintiff to make such tender, and the court having refused further time to procure the money for such tender, the court sustained defendant's objection to the introduction of evidence, and gave judgment for the defendant. The plaintiff alleges error of the trial court in refusing him a jury trial, and in denying the admission of any evidence for plaintiff.
We will consider first plaintiff's right to introduce evidence, as it will be immaterial whether he had a jury or not, if he could not offer his evidence. It is clear that under the *514
state of the pleadings at the time the trial was called, the burden was upon plaintiff to rebut the presumption of full payment and satisfaction of his demands, raised by the releases set forth in defendant's answer, the due execution and genuineness of which were admitted by failure to file the affidavit provided by section 448 of the Code of Civil Procedure. It is equally clear that he was not estopped from attacking these releases by any valid defense, other than such as involved the genuineness or due execution thereof. He could controvert them by evidence of fraud, mistake, undue influence, compromise, payment, estoppel, mental incompetency and like defenses. (Moore v. Copp,
Other similar conditions, consistent with the facts shown in this record, might be shown in evidence to exist, but it is unnecessary to multiply illustrations. It is sufficient if any single line of attack upon these releases was open to the plaintiff, which he might have pleaded where circumstances required it. He was entitled to the presumption that he had evidence to offer in that behalf. It is quite probable that he might have been required by the court, as a condition of being allowed to introduce evidence, to state what he expected to prove, and to show that he was relying upon a state of facts that would excuse a tender back of the money received, but nothing of the kind was demanded of or volunteered by him, so far as the record shows. Under the circumstances it was error for the court to deny plaintiff the privilege of introducing evidence.
We also think plaintiff was entitled to a jury trial on the issues presented by the record. His complaint was to recover damages for injuries. Section
Judgment reversed and cause remanded.
Finlayson, P. J., and Thomas, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 27, 1919.
All the Justices concurred. *517