Anderson v. Kurtz

Mr. Justice Burke delivered the opinion of the court. The sufficiency of this replication is the only question for our consideration. The defenses to the settlement and receipt which plaintiff insists are sufficiently set out are fraud, duress and mental incompetency. On the question of fraud, it is enough to say that this replication is wholly devoid of any sufficient allegations in [218] support thereof. Kilpatrick v. Miller, 55 Colo. 419, 422, 135 Pac. 780. The other two defenses may be considered together. It will be observed that it was defendant’s surgeon to whom she had taken plaintiff and who was about to treat him for his injuries. In the absence of an allegation to the contrary, it must be presumed that plaintiff knew this at the time, and hence must further be presumed that that treatment was to be at defendant’s expense. There was therefore nothing illegal or improper in the declination to furnish such medical services without some preceding settlement of defendant’s liability. It does not appear that plaintiff was coerced into this settlement; that anything was done to prevent his conferring with friends and relatives or with his own attorney or his own surgeon; that any misrepresentations were made to him as to the extent of his injuries; that he was restrained of his liberty or otherwise imposed upon. His replication is contradictory, and as to inconsistent allegations, those must be accepted which are against his interest. He says he did not understand the purport and effect of the instrument he was asked to sign, yet admits these were fully and correctly explained to him. He makes, the same allegations as to the lack of understanding of the purport and effect of the receipt which he signed the following day, but it clearly appears he knew it to be a receipt for $35.00, and that he knew the purport and effect of the instrument he had previously signed. Again there was no coercion, no undue restraint, no misrepresentation. Plaintiff does not deny that the $25.00 was then paid to him. He alleges that he tendered this money back more than three months later. He must have obtained it on the date of the receipt, and known for what purpose it was paid. His signature of this receipt and acceptance of the money thereunder was an affirmance and ratification of the settlement executed the preceding day. Bartle v. Breniger, 37 Ia. 139. The only element suggested which might avoid that settlement was [219] the denial of the medical assistance of which he then stood in immediate need. It is not claimed that this element entered into the transaction in the execution of the receipt and the payment of the money on the following day. There are no allegations in this replication to support the defenses of mental incompetency and duress. The demurrer was properly sustained and the judgment is affirmed. Garrigues, C. J., and Bailey, J., concur.