152 W. Va. 634 | W. Va. | 1969
This is an appeal from a judgment of the Circuit Court of Raleigh County, West Virginia, by the plaintiff, Dallas B. Peters, holding that the plaintiff was barred from prosecuting an action against John W. Cook, Jr., the defendant, for personal injuries arising out of an automobile accident because he had released all of his claims for damages. The case was submitted for decision of this Court on briefs without arguments at the January Regular Term, 1969.
It appears from the depositions, affidavits, exhibits and opening statements that on March 9, 1965, the plaintiff and defendant were driving automobiles in the same direction and the defendant’s car struck the rear of the car being operated by the plaintiff, after which an adjuster for the defendant’s insurance company entered into negotiations with 'the plaintiff to settle any claims for damages winch he might have in connection with the accident. Following negotiations with regard to the settlement a release was signed by the plaintiff and his wife on April
It is the contention of the plaintiff that he intended to release only the property damage to his automobile and not to release any personal injuries that he might have received in the accident; that he told the adjuster for the insurance company representing the defendant that he would sign only the release for the damage to his automobile, and that the adjuster, after some discussion, stated he had a release for that purpose. The plaintiff stated he did not read the release, and he alleged it was obtained by fraud. The plaintiff’s wife corroborated the testimony of the plaintiff that the plaintiff had advised the adjuster he was releasing only the damage to his automobile.
The plaintiff was an ordained minister and had done considerable studying and reading. He had attended school through the eighth grade. However, he stated that the release was difficult for him to read because of the color of the paper. However, he admitted that he knew it contained the statement of paying hospital and medical expenses up to $2000. The evidence on behalf of the defendant was that the plaintiff entered voluntarily into negotiations for the release, that it was explained to both the plaintiff and his wife and read to them, after which they both signed it. A draft in the amount of the consideration in the release was delivered to the plaintiff and purportedly endorsed by both the plaintiff and his wife and cashed,
It is true that if a written release releasing a claim for personal injuries is obtained by fraud, duress or incapacity such release will not sustain a plea of accord and satisfaction. Norvell v. Kanawha & M. Railway Co., 67 W. Va. 467, 68 S. E. 288, 29 L. R. A. N. S. 325; Workman v. Continental Casualty Co., 115 W. Va. 255, 175 S. E. 63; Carroll v. Fetty, 121 W. Va. 215, 2 S. E. 2d 521; C. & O. Railway Co. v. Chaffin, 184 F. 2d 948. However, the burden of proving such matters by clear and distinct evidence rests upon the plaintiff or the person attempting to vitiate the release. It is well settled that where as in the case at bar no fiduciary or confidential relationship exists fraud in obtaining a release is not presumed, but must be clearly and distinctly proved by the person who asserts it. 45 Am. Jur., Release, §§ 21, 65; Bennett v. Neff, 130 W. Va. 121, 42 S. E. 2d 793; Brown v. Crozer Coal and Land Co., 144 W. Va. 296, 107 S. E. 2d 777; Campbell v. Campbell, 146 W. Va. 1002, 124 S. E. 2d 345.
This matter is clearly stated in the syllabus of the case of Janney v. Virginian Railway Co., 119 W. Va. 249, 193 S. E. 187, which reads as follows: “In the absence of fraud by an alleged tortfeasor in the procurement, for valuable consideration, of a release of liability for personal injury to another, such release may not be repudiated in an action at law by the releasor for damages for the injury.”
This Court has held on several occasions that if at the time of the execution of a release the releasor knows or by inquiry might know of the contents of the release, he cannot invoke his own neglect to vitiate the release unless it was procured by fraud. This is clearly stated in point 4 of the syllabus of the case of Rutherford v. Rutherford, 55 W. Va. 56, 47 S. E. 240, in the following language: “A person who at the time of the execution of a release knows, or by inquiry might know, the exact nature of the writing, cannot invoke his own neglect to ascertain its nature to
The comparatively recent case of Campbell v. Campbell, supra, is quite similar to the case at bar. It was held in that case that where a release for all claims of property damage and personal injury was signed by the plaintiff as releasor and she later claimed that she did not read the release but understood that it was for property damage only, such situation failed to establish the existence of fraud on the part of an insurance adjuster in obtaining a release from a person injured in an automobile accident.
The depositions, affidavits and exhibits are wholly insufficient to establish by clear and distinct proof fraud in the procurement of the release. The release is, therefore, valid and the plaintiff is barred from recovery in the case at bar.
For the reason stated herein, the judgment of the Circuit Court of Raleigh County is affirmed.
Affirmed.