On February 8, 1968, Jo Ann Wood, age 20, died following minor surgery performed by defendant, John S. Dunlop, in the defendant Tri-State Memorial Hospital in Clarkston. She was survived by her plaintiff husband, Leonard L. Wood, age 22, and a 2-year-old son. On May 6, 1970, plaintiff, as administrator of the decedent's estate, brought this action against defendants for wrongful death. Defendants denied liability and alleged as a defense
The assignments of error are directed to rulings of the court which plaintiff contends unduly limited the issues submitted to the jury.
Plaintiff was a newcomer to Clarkston. Because his brother lived in Clarkston, he and his family moved there to look for work. They lived in a rented apartment. After his wife's death, plaintiff and his son lived with his brother and family. At that time, he was unemployed.
After his wife's death, plaintiff learned from Dr. Dunlop that her death resulted from defendants' negligence and that an insurance adjuster would contact him regarding the matter. The next day, Floyd Rector, an adjuster for defendants' insurance carriers, met with plaintiff and his brother at the latter's home. After the adjuster obtained information necessary to place a value on the claim, plaintiff told the adjuster he wanted to settle it as soon as possible. The adjuster then returned to his office in Spokane.
Subsequently, plaintiff initiated several contacts with the adjuster to determine the status of the settlement — some by telephone and three or four others by trips to Spokane. A week after plaintiff's first conversation with the adjuster, he and his brother went to Spokane to press for resolution of the claim. At that time the adjuster stated he was authorized to offer $18,000. After discussing the offer with his brother,
After plaintiff was appointed administrator of his wife's estate, the adjuster came to Clarkston and delivered two drafts to plaintiff — one draft from Aetna Life & Casualty Co. for $7,200; and the other from St. Paul Fire & Marine Insurance Co. for $10,800. Each draft was payable to "Leonard L. Wood, individually and as administrator of the estate of Jo Ann Wood." In exchange for the drafts, plaintiff executed a release reciting a consideration of $18,000. The release was signed by plaintiff, individually, but the endorsements on the two drafts were by plaintiff, individually, and as administrator of the estate of Jo Ann Wood.
Upon receiving the money on March 27, 1968, plaintiff opened a savings account. Within 2 days thereafter, he purchased a 1968 Chrysler Imperial automobile for $4,200, paid the rent on the apartment where he and the decedent had been living, purchased clothes for his own son and for the wife and children of his brother, and bought a stock of groceries for his brother. Thereupon, he left Clarkston for California and Nevada to visit relatives.
The trial court ruled that the plaintiff's execution of the release and endorsement of the settlement drafts were in his capacity as administrator of his wife's estate and constituted a bar to the plaintiff's action for wrongful death, unless the jury found that plaintiff lacked the mental capacity to execute the release or the consideration was so grossly inadequate as to shock the conscience of a person of
The parties' intent to settle all claims is further evidenced by the documents themselves. The release was captioned "RELEASE IN FULL"; it purported to release defendants from "all claims ... from an accident to JO ANN WOOD which occurred on or about the 25th day of February, 1968, by reason of surgical procedure accident and of and for all claims or demands whatsoever in law or in equity ..." The Aetna Life & Casualty Co. draft stated on its face "in satisfaction of all claims" and was marked "final." The St. Paul Fire & Marine Insurance Co. draft states immediately above plaintiff's endorsement "This draft constitutes settlement in full of the claim or account described on the face hereof." On the face of that draft was the claim number, the "date of loss 2-9-68", "kind of loss — Malp. LOA-final." The loss on 2-9-68 could only refer to decedent's death. Defendant testified he was told and understood the release was in full. Thus, we find no error in the court's ruling that the three documents constituted a release of all claims as a matter of law unless otherwise invalidated.
This instruction is a correct statement of the law. Grannum v. Berard, 70 Wn.2d 304, 422 P.2d 812, 25 A.L.R.3d 1434 (1967); Peterson v. Eritsland, 69 Wn.2d 588, 419 P.2d 332 (1966). Plaintiff argues the instruction should have informed the jury that one who did not have the requisite capacity could disclaim the release. We disagree. This was covered in the issues instruction;
Third, it is contended the court erred in refusing to give plaintiff's proposed instructions No. 2, 11, 12, 13, 14, 15, 16, 17, 19 and 20, all of which relate to the issue of whether the release was executed as a result of imposition, fraud, duress, undue influence and superior knowledge practiced upon the plaintiff by the adjuster, Rector. We are unable to find any substantial testimony justifying the submission of these issues to the jury. To the contrary, the record shows that plaintiff pursued Rector to obtain a settlement offer and thereafter relied upon the counsel of his brother in his
Fourth, error is assigned to the giving of instruction No. 11.
Sixth, it is urged the court erred in denying a motion to limit evidence of plaintiff's expenditure of funds received from the settlement. We find no error. The court limited the expenditures to the 2 days immediately following the receipt of the money insofar as it might bear upon the mental competency of plaintiff on the day of settlement. We find no abuse of discretion in the admission of the testimony. It is noted that defendants wanted to show subsequent improvident expenditures in a Montana logging venture, but the trial judge ruled such evidence to be too remote on the issue.
The judgment of dismissal is affirmed.
MUNSON and McINTURFF, JJ., concur.
Petition for rehearing denied June 11, 1973.
Review granted by Supreme Court September 25, 1973.
Each of the appeals listed below has been disposed of by formal written opinion in the manner indicated. While printed publication has been withheld pursuant to RCW 2.06.040, the opinions are on file as a public record in the office of the Clerk for the Division of the Court of Appeals concerned.
"Well, I asked him if they found out how much they were going to pay, and he told me they did, it would be $18,000.00 and I told my brother, Bob to — they had a drinking fountain there in a large room. I told him to walk over to the drinking fountain. And I told Bob, `Doesn't seem like to me it is enough,' and Bob told me, he said, `Well, you are unemployed; we borrowed $20.00 to get over here, so $18,000.00 is better than going to Court, going to trial.' We went back over to Mr. Rector's desk and I told Mr. Rector, I said, `Well, if I didn't want to accept the $18,000.00,' I said, `I would have to hire myself an attorney and would have to take this to court.' Mr. Rector said, `yes, that is true.' My brother Bob said, `And that could take some time.' Mr. Rector said, `That is right.' So I told Mr. Rector, I said, `That is fine; can you give me the check now?'"
"So I told Mr. Rector, I said, `That is fine, can you give me the check now?' Mr. Rector said, `No, you have to be appointed legal guardian and realtor of the estate', I believe is what it was.... I talked to Mr. Little (the attorney) on the phone from Mr. Rector's office. I told him I had just been offered $18,000.00, and I was told I had to be appointed legal guardian of my son. I know at the time I thought that was kind of funny you had to be appointed legal guardian of your own son....
"Q Mr. Rector in the course of discussions with you leading up to the ultimate settlement of the case likewise discussed to you your loss in terms of your loss and your son's loss?
"Q Mr. Rector did advise you before the $18,000.00 you agreed to accept could be deliverd to you you would have to be appointed administrator of your wife's estate?
"Q Did you inquire of him why that was necessary?
"Q Didn't he tell you it was necessary because before you could settle the case and act for your son this would be necessary?
"A Well, sir, he told me I should be appointed realtor of the estate and legal guardian. When I asked why I should be appointed legal guardian of my son he explained — I know I was puzzled why I should be appointed legal guardian of my own son.
"Q Can we agree at least you were aware that for some reason that perhaps you did not understand completely that you had to be appointed administrator with respect to the settlement so you could act for your son?
"A Yes, I was told I could not get the money unless I was appointed....
"Q Is it your own knowledge you knew at the time this settlement was entered into you were settling not only your claim but your son's claim, you were acting for yourself and him?
"A The understanding I was given, sir, was I was acting for myself and my son was part of the family and was a minor, I was to be watching out for him."
"The plaintiff claims that said release of the claim against defendants arising from the death of Jo Ann Wood was invalid because, under all the circumstances surrounding his signing thereof, the plaintiff lacked the mental capacity to validly execute the same.
"The defendants deny the foregoing contention of the plaintiff."