143 W. Va. 210 | W. Va. | 1957
Andrew Crawford, hereinafter referred to as plaintiff, brought this suit in equity in the Circuit Court of Ohio County, by his next friend Catherine C. Roth, to set aside, cancel and hold for naught a release, executed and delivered to defendant’s insurance adjuster, on the ground of mental incompetence to understand the nature and effect of the release, whatever representation, statements or pretenses made by defendant’s adjuster being confined to a private conversation with the plaintiff, during which it should have been apparent that plaintiff lacked mental capacity to -understand a release, and to enjoin and restrain defendant and his at
The case was tried by the court upon the bill and answer, the answer denying plaintiff’s mental incompetence to understand and execute the release, that there were any pretenses, misrepresentations or misstatements, or any private conversations, and further alleging that plaintiff has failed to return, or offer to return, to the defendant, the consideration for the release. The court found the allegations of the bill were sustained and granted the relief as prayed for, to which decree this Court granted an appeal and supersedeas on October 1, 1956.
The facts are relatively uncomplicated. Plaintiff, a pedestrian, was struck by an automobile owned and operated by the defendant, Ridgely on November 7, 1953. He sustained a stellate fracture of the skull necessitating six weeks hospitalization, during which time he developed a phlebothrombosis. All witnesses agree that plaintiff is mentally deficient disagreeing only as to the extent of such deficiency. On January 19, 1954, plaintiff was approached by defendant’s insurance adjuster, and the release in controversy executed, in the presence of two persons who witnessed plaintiff’s mark, for a consideration of $625.00. This $625.00 was broken down into three parts and three drafts were issued: One in the amount of $398.72, payable jointly to plaintiff and Wheeling Hospital covering plaintiff’s hospital bill in full; one in the amount of $200.00, payable jointly to plaintiff and Dr. Louis Farri covering the professional services of Dr. Farri in connection with the injury; and the third in the amount of $26.28, payable solely to the plaintiff. The latter draft may be further broken down as follows: $20.00 for damages to plaintiff’s clothing; $5.00 for damage to or loss of plaintiff’s hat; and $1.28 in order to make the round figure of $625.00. The three drafts were delivered to Mrs. Ludwig, one of
The first assignment of error is that the lower court erred in failing to hold that plaintiff could not maintain the instant suit when he had not returned, or offered to return, the consideration given for the release. Defendant’s insurance adjuster testified that neither plaintiff nor any representative of plaintiff had offered to return to him the amount paid for the release at any time. At this point, plaintiff’s counsel interjected the statement that the offer was made and extended in plaintiff’s bill of complaint. The closest scrutiny of the bill of complaint fails to reveal any such offer and the question of whether such offer is necessary, where releasor is a mental incompetent, has not been briefed by counsel for plaintiff.
The remaining assignments of error relate to the court’s holding in the final decree that: “The allegations of the Bill of Complaint are fully sustained and that at the time of the execution of the Release complained of, the plaintiff, Andrew Crawford, lacked the mental capacity to understand and protect his interest in the making and execution of a contract. * * *” As heretofore stated, all witnesses, both for plaintiff and defendant, testified that plaintiff was mentally deficient, though disagreeing as to his ability to understand the nature of the release if such were properly explained to him.
Dr. Robert J. Reed, Jr., a witness for plaintiff, stated: “it was obvious he [plaintiff] was underdeveloped mentally.”, but that he believed that, if the release were read to plaintiff, and explained to him, plaintiff would be mentally capable of understanding it. Cornell Peter Monda, an accredited psychologist, stated that he had given plaintiff a psychological examination
Dr. William T. Booher testified that he had examined the plaintiff and that in his opinion plaintiff’s mentality would be less than seven years. He also stated that he doubted whether plaintiff could understand the simplest phraseology of a very short contract if it were explained fully to him, but that it might be possible. Dr. Booher further stated: “What I am trying to get at is, you could say a hundred thousand dollars to him or a hundred dollars, it probably wouldn’t make any difference, he would still understand he couldn’t come back for any more money. He doesn’t know what money — or what the settlement means.”, and again “He Would understand that he couldn’t come back for any more money. Whether he knows what $625. is or not, I don’t know that.”
In regard to the actual execution of the release, the defendant’s insurance adjuster testified that: On January 19, 1954, he approached the Ludwig farm where plaintiff lived; this was the first time he had met plaintiff; he told plaintiff he had come to settle plaintiff’s claim; he produced the hospital and doctor bills, which he had in his possession, and asked plaintiff if there were any others; plaintiff replied that he knew of none; Mrs. Ludwig was present up to this point, then excused herself; he pointed to the word “Release” in red letters and read the release to plaintiff; he explained who Ridgely was, and what he had to do with it; plaintiff then said “Yes, I understand that you are making a complete settlement of my claim against the man that hit me”; he again went over the release in “everyday language”; Mrs. Ludwig returned and asked plaintiff
Mrs. Maria Ludwig testified: Plaintiff can do farm work under supervision, he is good with animals; she was present at the times the defendant’s insurance adjuster stated; the release was explained to plaintiff; “He told him it was a final settlement. Now, how much he comprehended of that I wouldn’t want to say definitely, but, then I asked myself — ”; she then explained it to plaintiff twice; in her opinion, he understood it and “he was happy to have the bills paid”; she asked the adjuster if he would allow for the damaged clothing, and priced them at what she thought she could get them for; and, she thought plaintiff understood it was a full settlement. Mrs. Wilson testified that plaintiff “seemed to” understand that it was a final settlement.
There is no evidence that plaintiff was ever advised by anyone, or realized of his own limited knowledge, that he had even a questionable claim for damages against the defendant.
This Court finds no merit in the assignments of error relating to the finding of fact by the trial chancellor that the plaintiff was mentally incapable of understand
The defendant relies upon the case of McCary v. Monongahela Valley Traction Company, 97 W. Va. 306, 125 S. E. 92, and especially the 2nd syllabus point thereof which reads: “In an action for damages for personal injuries, plaintiff cannot repudiate a written release of all claims arising out of his injuries, on the ground of fraud or mental incompetency to contract, without returning everything of value received by him in consideration for the release, or offering to do so.” In that case, the plaintiff instituted an action to recover damages for personal injuries received by the alleged negligence of the Traction Company. The defendant interposed a plea of accord and satisfaction, setting up a release executed by the plaintiff similar to the one executed by the plaintiff in this case. In the McCary case, the plaintiff filed three special replications. The first special replication alleged that the release mentioned in defendant’s special plea was obtained by fraud and misrepresentation on the part of the defendant, and that the supposed sum mentioned therein was in fact a donation or gift; the second special replication, that plaintiff was, at the time of the execution of the release, “incapable of understanding the nature and comprehending the meaning and effect of said purported paper writing, and that he was still suffering from the effects of the injuries inflicted upon him by defendant, and was wholly incapable of transacting business or of entering into a contract of release”; and the third special replication, that the release was obtained from him without adequate consideration. The Court disposed of No. 3 by stating: “* * * A valuable consideration, however small and nominal, if given or stipulated for in good
In both the McCary and Janney cases, releases were attempted to be repudiated by special pleas in actions at law, while the plaintiff here seeks to repudiate the release in a court of equity. The rule requiring such person to make restitution, or offer to do so, seems applicable both in courts of law and equity. In 134 A. L. R., Tender As Condition Of Action — Release, Page 8, it is stated that: “The general principle that one who seeks to avoid the effect of a release or compromise of a claim, demand, or cause of action (whether in an action or proceeding brought solely to cancel or rescind the release or instrument of settlement, or in an action or proceeding brought primarily to enforce the original demand or cause of action, or in an action brought for the dual purpose of setting aside the .release or settlement and recovering on the original
In 45 Am. Jur., Release, §53, it is said: “The general principle that one who seeks to avoid the effect of a release must first return or tender the consideration paid him in connection with his execution of the release, has found application or recognition in a large number of cases involving the release of a wide variety of claims or demands, as releases of claims for personal injuries or death * *
There is no allegation in the bill in the instant cause, nor is there any evidence to show that the plaintiff was by fraudulent representation induced to execute the release. The bill alleges that: “Plaintiff by his next friend, further respectfully represents that whatever representations, statements or pretenses made by the Agent aforesaid were confined to a private conversation between the two of them; that it was obviously apparent to or should have been apparent to this Agent or Adjuster that the Plaintiff lacked the mental capacity to understand or know the effect of the supposed Release; was incapable of making a valid contract and that the offer for the Plaintiff’s injuries was grossly inadequate and was in no sense a proper remuneration for the damages and injuries inflicted.” As heretofore stated, the decree merely found
In this case, the plaintiff neither repaid the defendant the $625.00 received by him as a consideration for executing the release, nor did he in his bill, or at any time thereafter offer to do so. Therefore, we are constrained to reverse the decree of the Circuit Court of Ohio County and remand this cause to that court for such further proceedings as the parties may be advised.
Reversed and remanded.