Opinion
Rehearing Granted May 6, 1936.
Appeal from Superior Court, Los Angeles County; Frank M. Smith, Judge.
Action by Clair Wilson against George Anthony Zorb. Judgment for plaintiff, and defendant appeals.
Affirmed.
COUNSEL
Joseph Scott and Theodore C. Heyl, both of Los Angeles, for appellant.
Henry G. Bodkin and Leonard Husar, both of Los Angeles, for respondent.
OPINION
HAAS, Justice pro tem.
This is an action for damages resulting from the negligent shooting of plaintiff by the defendant in the home of plaintiff. The jury in the superior court gave plaintiff judgment for $20,500, together with his costs and disbursements.
The answer admits that defendant’s negligence caused plaintiff’s injuries, but pleads as affirmative defenses: First, that plaintiff was guilty of contributory negligence (this defense was withdrawn during the trial); second, that plaintiff’s claim for damages was barred by a covenant not to sue, alleged to have been executed by plaintiff for a valuable consideration, on or about July 5, 1933; third, that plaintiff’s claim for damages was also barred by a release alleged to have been executed by plaintiff for a valuable consideration, on or about May 17, 1933.
The questions presented to the jury, and for our consideration, are: The amount of damages suffered by plaintiff; whether the covenant not to sue barred plaintiff’s action; and whether the release barred plaintiff’s action.
In order to present all of the points bearing on these issues, appellant presents for consideration the following: "1. Whether a confidential relationship existed between plaintiff and defendant. 2. Whether defendant committed any act of fraud which constitutes ground for setting aside the release and covenant not to sue, and in this connection, (a) Whether statements of defendant as to his wealth constituted fraud; (b) Whether the financial position of plaintiff and any evidence in regard thereto, was admissible in an action of this nature and was properly admitted by the trial court herein. 3. Whether promises made by defendant at the time of the execution of the release and covenant not to sue, if any promises were made, constitute fraud. 4. Whether the verdict of the jury for $20,500 was excessive and unconscionable, contrary to law and unsupported by the evidence. 5. Whether, if the verdict and judgment thereon is contrary to law and unsupported by the evidence, this court should reverse the judgment and remand the case with instructions to the trial court to enter judgment for the defendant."
The question arises: Were their relations merely friendly or intimate, or may they be classed as confidential in the legal sense of the term?
The evidence in regard to the relationship of the parties is quite extensive. It is to the effect that it extended over a period of twenty years; that they, with their wives, attended parties together; visited each other’s homes regularly, at times sleeping at the home of one or the other; belonged to the same bridge club, meeting once a week; attended hunting and fishing trips together; visited Caliente in company; worked together in a common profession, medicine and surgery; and prescribed for each other’s patients. The evidence further reveals that plaintiff lived at defendant’s home on April 8, 1933, and for some time thereafter, until the "first part of September."
"A ‘confidential relation’ is not a ‘friendship,’ as we may love one in whom we have no confidence in a business way." 2 Words and Phrases, Third Series, p. 315, quoting from In re Brand, 185 A.D. 134, 173 N.Y.S. 169. Itpresupposes a substitution of the will of one for the other (Derdyn v. Low, 94 Okl. 41, 220 P. 945), as where one reposes confidence in the other and the other exercises dominion, superiority, and influence (Hitchcock v. Tackett, 208 Ky. 803, 272 S.W. 52); it is that relation where "dominion may be exercised by one person over another" (Harraway v. Harraway, 136 Ala. 499, 34 So. 836, 837); "in which influence has been acquired and abused,-in which confidence has been reposed and betrayed." (Thomas v. Whitney, 186 Ill. 225, 57 N.E. 808, 810). In Re Estate of Cover, 188 Cal. 133, at page 143, 204 P. 583, 588, the court supported the findings of the trial court of undue influence "upon the theory that the agreement in question was procured from the wife as the result of constructive fraud, having its origin in the confidential and fiduciary relation of husband and wife. * * * Confidential and fiduciary relations are, in law, synonymous, and may be said to exist whenever trust and confidence is reposed by one person in the integrity and fidelity of another. The very existence of such a relation precludes the party in whom the trust and confidence is reposed from participating in profit or advantage resulting from the dealings of the parties to the relation"-Citing cases. It will be noted that in the above case the relationship was that of husband and wife. In the instant case, the relationship was that of an intimate friendship between two parties. In the case of Jackson v. Gorham, 98 Cal.App. 112, at page 116, 276 P. 391, 393, the court states: "There must be something further than mere confidence in another’s honesty and integrity to sustain the presumption of constructive fraud." In the case last above cited the Harrises were advanced in years, they were not mentally incompetent; the plaintiffs were their tenants "for about two years; * * * that during said time the plaintiffs had been very kind and attentive to the Harrises; had looked after their personal wants; but there is no testimony in the record that the plaintiffs in this action had anything to do with the business affairs of the Harrises or ever transacted any business for them whatsoever, or gave any advice in relation thereto. It follows as a necessary conclusion that there is nothing upon which to base constructive fraud, by reason of the relationship in this case."
It is apparent that in the case before us the relationship went much further. Besides being the ordinary garden variety of friends, visiting at each other’s home, playing bridge, and staying overnight now and then, the plaintiff and defendant were upon occasion associated together in the practice of medicine and surgery; a profession, it must be conceded, demanding the highest degree of confidence. They exchanged confidences as to business transactions, and during his convalescence plaintiff and his wife lived at defendant’s home without any charge to him. It no doubt, appeared to the jury from the evidence that plaintiff, being reduced to a state of invalidism (by reason of the gunshot wound), by necessity fell under the dominance of the defendant, to whom he was beholden for the livelihood of himself and wife, and that he followed defendant’s direction in order to attain a recovery, physically and financially. We are of the conclusion that the court was justified in overruling the motion for a new trial
Before proceeding further, it may be well to determine here the effect of an instruction admittedly given by the court to the jury at defendant’s request, which the jury apparently entirely disregarded. The instruction reads in part as follows: "You are instructed that the relations existing between the plaintiff and the defendant were not confidential and did not impose any duty upon the defendant to disclose any of the facts and circumstances of the transaction involved in this action." Was this such a question as was proper for the court only to decide? Disregarding the instruction, was the jury justified in finding that fraud existed sufficient to nullify the contract?
It is a well-settled rule of law that the court in its instructions to the jury in a civil case may not leave a question of law to the jury (Tompkins v. Montgomery, 123 Cal. 219, 55 P. 997), and may not comment upon the evidence. The trial court is not justified in taking from the jury a question of fact, unless the evidence is such that there is no issue to be determined. There was here an issue to be determined, namely, the issue of whether a confidential relationship existed. See Missouri, K. & T. Ry. Co. of Texas v. Williams (Tex.Civ.App.) 117 S.W. 1043. The instruction was erroneous. It is apparent, however, that in the case before us the jury entirely disregarded the instruction of the court, or, after considering all of the instruction of the court, they found fraud to exist nevertheless. We cannot hold as error sufficient to reverse the judgment the giving of an erroneous instruction, that, being disregarded by the jury, had no bearing upon its verdict, for the very fact that they found for the plaintiff presages that they found fraud to exist and that fraud was the controlling factor inducing plaintiff to sign the covenant and waiver in question; although contradicted by the statements of the defendant, there is evidence to the effect that defendant stated his "finances were in terrible shape, had been in terrible shape," and made various promises, among them being "that he would pay up all bills and indebtedness," which representations as to defendant’s financial status were not true, and which promises were not kept. These representations and promises plaintiff had fully relied upon, and thereby was induced to sign the release of May 17, 1933, and the covenant not to sue of July 5, 1933. We are convinced the jury acted within its province in finding here the elements of fraud. Had appellant held himself at arm’s length and thereby cast the burden upon respondent to investigate for himself, respondent would have had no one but himself to blame if he fell into a trap, but, where appellant had treated respondent with such great kindness that it dimmed respondent’s vision and quieted all inquiry, there cannot be said to have been a meeting of the minds, an open covenant openly arrived at.
But, disregarding this, for it opens up the question of confidence, where essential facts, not in the possession of plaintiff to enable him to covenant, were withheld by defendant, the jury had a right so to conclude fraud, as it did, from the evidence. The evidence reveals that the plaintiff was not in condition to investigate for himself. True, he consulted a "friend," who afterwards turned out to have been an attorney, before signing the instruments. The evidence does not show, however, that this shook his confidence in his former friend, the appellant, nor that he learned anything from his attorney friend, or from any one else, of the financial status of defendant that would put him on his guard as to the ability and intentions of appellant.
With the contradictions in the evidence we have here no concern. We must assume that the jury believed the plaintiff and not the defendant. The jury found defendant did not in good faith make a full disclosure of all the facts, namely, as to his financial status, but that he led plaintiff to believe that because of his financial status he (the defendant) could not carry out his promises and plaintiff could not expect him to carry them out; and that therefore defendant misled plaintiff to accept a settlement to his injury.
It must follow that the $1,500 which plaintiff received was not in full settlement of plaintiff’s claim against defendant.
No question arises on appeal in reference to the notice of rescission of the release of May 17, 1933, and the covenant not to sue of July 5, 1933.
The jury was instructed to find: First, whether plaintiff’s recovery was barred by the release and the covenant not to sue, and, if they found it was not so barred, to then find the amount of damages suffered. They found damages in the sum of $20,500. Were these damages excessive? Had the trial court, after hearing all the evidence, considered such damages excessive, it was within his province to remit part of the damages, where such an award shocks the court’s sense of justice (Zibbell v. Southern Pacific Co., 160 Cal. 237, 116 P. 513), and where a presumption is raised that it is based on prejudice or passion. The trial court remitted no part of the award. While $20,500 is a goodly sum, we find nothing in the evidence nor in the proceedings to justify an assumption that the jury acted out of prejudice or passion shocking the court’s sense of justice. Hart v. Farris, 218 Cal. 69, 21 P.2d 432. Considering the extent of the injury, suffering, physical detriment, and loss of business to plaintiff, as demonstrated by the evidence, this court cannot hold that the award is in no just relation, legally, to injuries sustained by the plaintiff, and therefore that it is in law excessive.
The judgment is affirmed.
We concur: YORK, Acting P. J.; DORAN, J.