Jimenez v. O'Brien

WOLFE, Justice. Action by Jess Jimenez, plaintiff and respondent, against Ray O’Brien and Boyd B. Broadwater for damages for injuries sustained when an automobile driven by Broadwater and owned by O’Brien collided with an automobile in which the plaintiff was a passenger. The court below directed a verdict in favor of O’Brien, but directed a verdict against Broadwater. The jury found that two releases signed by Jimenez releasing O’Brien and Broadwater from liability for the consideration of $1708.40 paid to Jimenez by the insurer of the O’Brien ear were void in that they were signed by Jimenez when he did not have the mental capacity to contract. This amount of $1708.40, however, was deducted by the jury from the $5000 verdict returned by them, leaving a net verdict of $3291.60. The defendant Broad-water prosecutes this appeal contending, among other things, that the evidence is insufficient to support the finding that Jimenez did not have the mental capacity to contract when he signed either of the two releases. The facts surrounding the releases are these: Following the accident on July 6, 1945, in which Jimenez was injured, he was taken to the St. Mark’s Hospital in Salt Lake City where his injuries were diagnosed as a severe brain contusion. Jimenez remained unconscious for two to two and *85 one-half weeks. His condition, however, gradually improved after the eighth or tenth day in the hospital. Benjamin Duncan, an insurance adjuster for the insurer of the O’Brien car, called to see Jimenez on July 18th, but Jimenez’ condition rendered him incapable of carrying- on a conversation. Duncan returned to the hospital in about a week at which time Jimenez was able to converse with Duncan, but he was unable to recall the facts of the accident. Duncan made repeated visits to see Jimenez, six or seven times in all. On August 13, 1945, .Duncan took with him one Alice Pannier, a shorthand reporter, to the hospital where she took down a series of questions asked by Duncan and answered by Jimenez concerning the latter’s family, employment, and his plans to leave for Colorado to stay with his brother when discharged from the hospital the next day. Jimenez testified at the trial that he had no recollection of this conversation. The evening of that same day, Duncan testified, he returned to the hospital and discussed a settlement with Jimenez. A tentative settlement of $1000 general damages, plus all hospital and doctors’ bills was agreed upon. The next morning, Duncan further testified, someone phoned him from the hospital requesting that he come there. When he arrived he found Jimenez, fully dressed, sitting on the bed conversing with a woman friend. Duncan having in the meantime ascertained the amount of the doctor and hospital bills, presented to Jimenez three bank drafts. One draft was payable to Jimenez and the St. Mark’s Hospital for $182.05; another payable to Jimenez and Dr. Alma Wright for $500; and the third payable to Jimenez for $1000. A usual form release stating that Jimenez was absolving both O’Brien and Broad-water from all liability arising out of the accident was signed by Jimenez, he adding the words in his own handwriting, “I have read this release and understand it to be á release in full.” In addition, and in accordance with the practice of the insurance company, Duncan wrote in longhand what he called a supporting statement. This statement *86 recited the facts of the accident; that Jimenez was hospitalized; and that Jimenez understood that $1682.05 (the total amount of the three drafts heretofore mentioned)' was all the money he was to receive from any source in connection with the accident. Jimenez signed this statement: “This statement is true. Jess Giménez.” The drafts were indorsed by their respective payees and cashed within a short time. On each draft above the indorsement it is stated that indorsement of the draft constitutes a release of all claims the undersigned may have against the insurance company and all persons arising out of the accident referred to on the face of the draft. The following September 5th, Jimenez and his former wife, Eita Gounis, called at the insurance office where Duncan was employed. There, Duncan testified, Jimenez reminded him of his promise to pay all the hospital bills and stated that there was one bill which Jimenez had failed to mention to Duncan before. This bill was for $26.35 for emergency treatment rendered to Jimenez at the Salt Lake General Hospital immediately after the accident and before he was removed to the St. Mark’s hospital. Duncan thereupon issued a draft, similar to the other drafts heretofore mentioned, for the amount of this bill. Immediately after Jimenez and Mrs. Gounis had left Duncan’s office, it occurred to the latter that he had neglected to have Jimenez sign a release in consideration for the draft just given him. Duncan pursued Jimenez and caught up with him before he had left the office building. Jimenez voluntarily returned to the office where he signed a release similar to the one signed by him in the hospital on August 14th. This release was also signed at the bottom by Jimenez, “I have read this release and understand it to be a release in full. Jess Gimenez.” Several months later, Jimenez consulted an attorney and this action was commenced to recover damages for injuries suffered in the accident. The defendants answered, alleging that Jimenez had released them from all liability for a *87 good and valuable consideration. The plaintiff replied, admitting execution of the releases, but alleging that he was not mentally competent to contract at the time he signed the releases. Counsel for both sides cite Hatch v. Hatch, 46 Utah 218, 148 P. 433, 438, as establishing what degree of mental capacity is necessary to be competent to contract. There we said, “In ordinary contracts the test is, Were the mental faculties so deficient or impaired that there was not sufficient power to comprehend the subject of the contract, its nature and its probable consequences, and to act with discretion in relation thereto, or with relation to the ordinary affairs of life?” We expressed approval again of this test in O’Reilly v. McLean, 84 Utah 551, 37 P. 2d 770, and Burgess v. Colby, 93 Utah 103, 71 P. 2d 185. Instruction number seven to the jury read: “To avoid a release from liability for personal injuries, the plaintiff in this case, Jess Jimenez, has the burden of proving, by a preponderance of evidence, the invalidity of each release by clear and unequivocal and convincing evidence; otherwise the release and settlement are binding upon plaintiff and constitute a complete defense. * * *” While this instruction is somewhat confusing in that the court attempted to apply two different requirements as to the weight of the evidence, we think the jury was adequately instructed that before they could return a verdict for the plaintiff, it must be found by them by clear, unequivocal and convincing evidence that the releases were invalid. This requirement that a release can be avoided only if the evidence is clear, unequivocal and convincing that it is invalid, is well supported by the authorities. Miller v. Spokane International Ry. Co., 82 Wash. 170, 143 P. 981; St. Louis and S. F. Ry. Co. v. Chester, 41 Okl. 369, 138 P. 150; Moruzzi v. Federal Life and Casualty Co., 42 N. M. 35, 75 P. 2d 320, 115 A. L. R. 407, and Wallace v. Skinner, 15 Wyo. 233, 88 P. 221. *88 We agree with the contention of the defendant that the jury could not have reasonably found by clear, unequivocal and convincing evidence that Jimenez was mentally incompetent to contract on both August 14, 1945, and on September 5, 1945. Therefore, it is necessary to detail and analyze the evidence relied upon by the plaintiff to support the verdict. It is to be remembered that “clear, unequivocal and convincing evidence,” is a higher degree of proof than a mere “preponderance of the evidence,” and approaches that degree of proof required in a criminal case, viz., “beyond a reasonable doubt.” Jimenez’s own testimony which is the best evidence of his understanding on those dates does not support his contention, but in fact supports an opposite position. Upon cross examination he testified that he did not remember seeing Duncan at the hospital, nor did he know him until the trial had commenced. He did admit, however, that he remembered his name. He testified that he voluntarily signed a paper on August 14, 1945, while he was still in the hospital, but did not recall any conversation had with Duncan concerning a settlement of his claim. He remembered the day because it was V-J Day (the day of the cessation of hostilities in World War II). He thought he had read the paper before he had signed it, but did not remember what it said. He did not recall having experienced any difficulty in cashing the $1000 draft. Then for the purpose of impeaching Jimenez’s testimony counsel for the defendant read the following from Jimenez’s deposition taken on September 12, 1947, ten months before the trial below. “Q. While you were in the hospital did anyone come there to settle your claim on account of the accident of July 6, while you were in the hospital? A. Just that man Duncan. “Q. How many times did he see you at the hospital? A. I have seen him more than once. I wouldn’t know how many times. * ■ * *• “Q. Do you remember talking to him in the hospital?. A. Yes. *89 “Q. Do you remember what he said to you and what you said to him? A. I don’t remember that at all. ■ “Q. You do remember discussing the accident with him? A. If he discussed the accident that I don’t remember, either. “Q. Do you remember whether he talked to you or not about a settlement? A. Yes. “Q But he did discuss a settlement? A. Yes. . “Q. What was said about making a settlement? A. He told me that he was going to fix the hospital bills and get a release, and he would give me one thoiRand dollars, and so I was concerned about getting out of there, and I didn’t care about nothing else.” Jimenez admitted making the foregoing answers in his deposition and that before his discharge from the hospital he intended to go to Colorado and live there with his brother. The latter had come to Salt Lake City to get Jimenez, but had returned to Colorado before Jimenez was discharged. After discharge, Jimenez changed his plans and did not go to Colorado as planned. Counsel further read from the deposition: “Q. Did you read the release you signed.- A. Yes, but I couldn’t tell you what it said. I just went through it. I couldn’t tell you a thing I read. “Q. Did you understand it at that time? A. I thought I did.” " Then the cross-examiner asked Jimenez if he understood the release when he read it. Jimenez again replied that he thought he did. On re-direct examination, counsel read from the deposition the next question and answer: “Q. You thought you did [understand the release]? A. But I knew I didn’t understand it.” It is not contended by Jimenez that Duncan or the insurance company defrauded him in any manner and it is admitted that Jimenez was not under the influence of any sedative on August 14th. *90 Jimenez testified that he remembered he had a bill to pay at the Salt Lake General Hospital, and that he with Mrs. Gounis went to Duncan’s office to get Duncan to give him a check for the amount of the bill. He testified that after he had left Duncan’s office, the latter followed him and said, “come back up. I want you to sign a release.” Jimenez voluntarily returned to the office where he signed a paper. He did not know if it was a release. Jimenez took the check to the General Hospital and paid the bill. Jimenez didn't testify why he went to Duncan to have him pay the hospital bill. He does not claim that he thought Duncan was gratuitouly paying his hospital bills. The only reasonable conclusion is that when he went to Duncan’s office on September 5th, he thought Duncan would include in the settlement the payment of the small hospital bill, showing that Jimenez realized there was a settlement. The plaintiff relies upon the fact that Jimenez did not correctly spell his own name when he signed the releases as indicative of contractual incapacity. In light of the surrounding circumstances there is little or no probative value in this fact. On the four drafts where Jimenez was named either as payee or joint payee, the insurance company had spelled Jimenez’ name “Gim-inez.” He accordingly indorsed the drafts “Giminez.” He indorsed two of the drafts twice, once signing his name “Giminez” and then immediately below it indorsing it again “Jimenez,” just as should properly be done. On each release Jimenez started to sign his name with a “J,” but after making the “J” he wrote over it with a “G”. It is only reasonable to suppose that someone requested him to sign the release in conformity with the spelling of his name on the drafts. In the supporting statement written in longhand by Duncan on August 14th, Duncan had spelled Jimenez’s name with a “G”. Jimenez here again signed his name “Gimenez.” Mrs. R. D. Loy, a close friend of the plaintiff, testified that she visited Jimenez nearly every day during his stay *91 in the hospital. After Jimenez regained consciousness, she said he would at times appear to be irrational, accusing Mrs. Loy and other friends of neglecting him, but that on other occasions he would appear to be rational and remember her last visit. On one occasion, she testified, Jimenez told her he had a gun under the bed and had shot some pigeons which he wanted her to take home. Mrs. Loy’s testimony is not clear as to when this last happening occurred. After his release from the hospital, Jimenez frequently visited Mrs. Loy. She described his appearance on these occasions as untidy whereas previous to the accident he had been very neat in his dress. He was unable to stand any noise and was at times depressed and changeable in his plans. He walked with a stagger and his speech was labored. He purchased three issues of the same magazine and bought shirts for himself several sizes too small. He was unable to remember from one day to the next what he had done or had told Mrs. Loy. Assuming all of Mrs. Loy’s testimony to be true, there is substantially nothing in it to indicate that on August 14th, and especially on September 5th, Jimenez’ faculties were so impaired that he could not meet the test of contractual capacity announced in Hatch v. Hatch, supra. The plaintiff cross assigns as error the refusal of the trial court to permit certain medical experts who testified in behalf of the plaintiff to give their expert opinion as to whether Jimenez had the mental capacity to contract at the times the two releases were signed by him. The defendants objected to the admission of the expert opinion on the ground that the question of mental capacity was the ultimate question to be decided by the jury and was not therefore a proper subject for the expression of an expert opinion. It is unnecessary for us to determine whether the exclusion on that ground was erroneous. Even if the doctors had been permitted to testify, as they offered to do, that in their opinion Jimenez did not have the mental capacity to contract at either of the times he signed the *92 releases, still, for reasons which we will state later, and in view of all the evidence, the jury could not have reasonably found by clear, unequivocal and convincing- evidence that Jimenez did not have the mental capacity to contract. An analysis of the testimony of the three doctors who examined Jimenez discloses that in forming their opinion that Jimenez was incompetent to contract on August 14th and on September 5th, they based their opinion upon matters which are indicative of poor judgment and an unsettled mind, but which do not reasonably admit of mental incapacity to contract. The abstract opinions of expert witnesses are, not important; it is the reasons assigned in support of the opinions which are significant. American Trust Co. v. Dixon, 26 Cal. App. 2d 426, 78 P. 2d 449, and cases cited therein. Dr. Stewart Alma Wright, a neurosurgeon who attended Jimenez while he was in the St. Mark’s Hospital and who was in the best position of any of the three doctors who' examined Jimenez to judge his mental capacity, testified that he had diagnosed Jimenez’ injury as a severe brain contusion; and that he did not think Jimenez was able to “reason normally” on August 14, 1945, or Jimenez would not have insisted on leaving the hospital against the doctor’s advice. The period of Jimenez’ unconsciousness from two to two and one-half weeks, according to Dr. Wright, was indicative of the seriousness of Jimenez’ injury. But Dr. Wright admitted that he did not think Jimenez was irrational on that date and that he had every reason to expect Jimenez would continue to improve. Progress notes of Jimenez’ condition made daily by Dr. Wright were introduced into evidence. From them it appears, and Dr. Wright admitted, that after the eighth or tenth day Jimenez gradually improved. On July 29th, the doctor recorded, “Patient is clear mentally, but very sluggish in both mental and physical reactions.” During the early part of August improvement continued. Jimenez sat up in a wheel chairj walked, and his'activity increased daily. On August llthj *93 it was noted that Jimenez “had no complaints whatever.” Dr. Wright after examining him on August 14th, just before his discharge from the hospital, made this notation: ' “Patient has no complaints and to quizzing admits of no aches, pains, weakness, paralysis or other symptoms referrable to nervous or other systems. Complete recheck is without evidence of residual pathology except patient is generally weak and still a little slow mentally.” Dr. Wright on re-direct examination stated that he based his opinion that Jimenez was not able to “reason normally” on the fact that Jimenez after having suffered a severe brain contusion, left the' hospital against the doctor’s advice. Inability to “reason normally” may include anything from a slight deviation from the subject’s usual reasoning power to extreme irrationality which approaches insanity. But persons may be capable of willing their property or contracting, at least as to simple matters, in the sense that they know what they are doing and the consequences of their decision although their judgment which motivates them to will or to contract as they do may be poor. It is evident that Doctor Wright’s opinion that Jimenez was unable to reason normally was based upon what well may have been nothing more than Jimenez’ lack of good judgment rather than upon any mental deficiency bordering upon an incompetency to contract. Dr. Wright admitted that in his opinion Jimenez was not irrational on August 14th. When asked in what sense he used the word “irrational,” he replied, “Well, the word irrational, I suppose would have various meanings in various persons’ minds. If we were to pin ourselves down to a medical dictionary definition of irrationality, we would have to have it before us, because I don’t exactly recall what that definition would be, word for word, but in my opinion a person who is irrational is a person who is very markedly impaired from the standpoint of his mental abilities at the time. There could be all graduations and there are graduations of irrationality. A person who is completely irrational wouldn’t know, wouldn’t be able to reason, wouldn’t be able to say things in a successful way, wouldn’t be able to do anything *94 in what you and I would refer to as a reasonable way. But a person need not be irrational in the extreme sense of the term to have his mental capacities impaired.” As early as July 29th, sixteen days before Jimenez signed the first release, Dr. Wright noted that Jimenez was clear mentally although slow in physical and mental reactions. On August 14th, Dr. Wright noted that Jimenez was “still a little slow mentally.” Every day situations abound in which contracting parties are not on the same mental plane. Yet contracts between such parties are binding not because their mental ability nor their judgment is equal, but because they both possess that degree of mental power which the law recognizes as a minimum for persons contracting viz. sufficient power to comprehend the subject of a contract, its nature and probable consequences, and to act with discretion in relation thereto, or with relation to the ordinary affairs of life. The deposition of Dr. J. L. Rosenbloom was read at the trial. Jimenez had consulted Dr. Rosenbloom in November of 1945, at which time Jimenez told the doctor that he was tired, nervous, and unable to sleep. Dr. Rosen-bloof diagnosed Jimenez’ condition as post-traumatic personality or constitution. He expressed an opinion that Jimenez would always show some residual symptoms from the trauma in the nature of decreased emotional control, decreased capacity for working, and probable impairment of concentration. Dr. Garland H. Pace, who did not examine Jimenez until October of 1947, over two years after the releases had been signed, testified that Jimenez had suffered permanent damage to his personality structure. In the testimony of these two doctors as in the testimony of Dr. Wright, there is nothing to reasonably predicate an opinion that Jimenez was unable to contract on either August 14th or September 5th. Fatigue, nervousness, poor emotion control, and lack of ability to concentrate are not necessarily indicative of contractual incapacity although they well may affect a person’s judgment. It does not ap *95 pear that any of the doctors in formulating their opinion that Jimenez was incompetent to contract, knew and thus took into account any of the facts and circumstances surrounding the signing of the two releases. Had the doctors known the substance of the conversations between Duncan and Jimenez on August 14th and on September 5th, there is a good probability that their opinions as to Jimenez’ mental capacity would have been modified. After all, the things a person does and says at or about the time he enters into a contract are the best indicia of his mental capacity to make the sariie. All of the doctors had observed Jimenez when he was not engaged in business matters. To give an opinion as to a person’s capacity to contract at a date several years prior is not an easy task even when all the facts are made known. It is difficult to judge a person’s competency to contract when that judgment must be based upon observations of his conduct and what he says when undergoing a medical examination. In this case there is an illustration of the danger attendant to allowing expert witnesses to give their opinion as to the ultimate question to be determined by the jury. An expert opinion given by a doctor is generally accorded considerable weight by a jury. It is therefore important that the opinion should be formed only after adequate observation and with all surrounding facts in mind. Thus in view of the diagnosis of the three doctors and the reasons ascribed by Dr. Wright why he thought Jimenez was unable to reason normally, and in view of all the evidence surrounding the execution of the two releases in regard to which it does not appear that the doctors were aware when they formulated their opinion that Jimenez was not mentally competent to contract, even had the doctors’ opinions been allowed in evidence, the jury could not have reasonably found from clear, unequivocal and convincing evidence that Jimenez did not have the mental capacity to contract on August 14th or on September 5th. Proof that is convincing carries with it, *96 not only the power to persuade the mind as to the truth or probable correctness of the fact it purports to prove, but has the element of clinching in the mind such truth or correctness. As a matter of law the plaintiff’s evidence in this case falls short of that standard. The judgment below is reversed. Costs to appellants. PRATT, C. J., and LATIMER and McDONOUGH, JJ., concur.