Before Swan and Friendly, Circuit Judges, and Dimock, District Judge.*fn*
These appeals by an out-of-state defendant from judgments of the District Court for the Northern District of New York in two negligence actions brought by in-state plaintiffs present a number of close questions, mainly of New York law. We have concluded to affirm.
The evidence amply supported the following version of the accident and its immediate sequelae - a version which, indeed, has not been seriously questioned either below or here. On December 10, 1954, one of the plaintiffs, Mrs. Abbie F. Evans, aged 57, was a passenger in the front seat of a farm truck traveling north on a two-lane highway in Oneida County, New York. Her neighbor, Roy Clemons, owned the truck and was driving it; his wife, Jane, sat between Roy and Mrs. Evans. There was slush and snow on the pavement; this was bare in some spots and slippery in others. It was dusk, a little after 5 P.M.; the farm truck had its lights on and was equipped with chains. It was well on the right side of its own lane, indeed with its right wheels on the shoulder, as it traveled uphill at 25 m.p.h. or less. Appellant Groves' truck was coming downhill, having rounded the upper portion of an "S" curve. It was in a skid, and as it slipped sideways, it "[slewed] around" to the left side of the road, with the result that its left rear wheel hit the left front of the Clemons truck. The Groves truck then "bound over" onto its proper side of the road again, and came to a stop some distance beyond the point of impact. The impact cracked the windshield and caused damage to the front end of the Clemons truck, which had to be towed to a garage for repairs; it also lifted Mrs. Evans out of theseat and caused her head to strike the windshield, resulting in a bump on the top of her head one-half to three-quarters of an inch high and two and one-half to three inches long. Neither of the Clemonses was hurt. On December 14 Mrs. Evans consulted Dr. Redmond, her local physician, and, according to the doctor's testimony at the trial, "complained of feeling dizziness, having fainting spells, having blinking spells of vision with her eyes and getting tired after visiting the day before." Mrs. Evans had previously complained to Dr. Redmond of dizziness, grogginess, and other difficulties and, as recently as November 29, 1954, of false and defective hearing. Although Mrs. Evans "also made note that she had been worrying over a head injury she had received in an accident * * * on December 10," Dr. Redmond's records and testimony do not indicate that on the occasion of her December 14 visit either his patient or he attached much significance to this.
On January 5, 1955, Ryan, a representative of defendant, called at the Clemonses' home to discuss their claim for damage to the farm truck. Having ascertained the amount and manifested a willingness to pay it, Ryan indicated that a release would have to be obtained from Mr. and Mrs. Evans. The Evanses were summoned by telephone and came right over. When they arrived, Ryan asked Mrs. Evans if she felt "any bad effects" from the accident; she answered in the negative. When the Evanses inquired why they should sign the proffered release, Ryan answered, "so Clemons could get the money to get the car out of the garage." They thereupon signed. Although the release, which bears the initials "L.S." after each signature, contains the usual useless recitation of a consideration of $1, nothing was actually paid to the Evanses; under N. Y. Personal Property Law, McKinney's Consol. Laws, c. 41, § 33, subd. 2, however, this is no reason for invalidating the instrument. The release recites that the signers "understand that liability is denied by said S. J. Groves & Sons Co. who has made no agreement or promise to do or omit to do any act or thing not herein set forth, and * * * that this release is to compromise and terminate all claims for injuries or damages of whatever nature, known or unknown, including future developments thereof, in any way growing out of or connected, or which may hereinafter in any way grow out of or be connected with said accident." Although Mr. Evans testified that he did not read the release before signing it, when he was asked the question, "[You] knew when you signed and when Mrs. Evans signed that you were discontinuing any claim against the owner of the truck that was involved with Mr. Clemons' truck, [and] that was your intention in signing it?," he answered in the affirmative.
Two weeks later Mrs. Evans again saw Dr. Redmond and complained of head symptoms. From that time on her condition became progressively worse, and there ensued a long history of examinations, consultations, surgery and hospital care, the latter taking place at the Faxton Hospital in Utica, the Albany Medical Center, and, since May 13, 1955, at the Marcy State Hospital, an institution for the mentally ill, where Mrs. Evans was confined at the time of the trial as a legally-adjudged incompetent. As to the nature and cause of her ailment, suffice it here to say that the plaintiffs' theory in these two actions - one by Mrs. Evans through her husband as her Committee, and the other by the husband for loss of services - was that her suffering was due to a thrombosis of the left lateral sinus and that that condition, in turn, was due to the collision with defendant's truck; there was adequate evidence to warrant a jury's finding to this effect - although, as is usual in such cases, there was also adequate evidence to support a contrary decision on either of the two necessary causal factors.
Judge Brennan conducted a preliminary trial without a jury on the issues raised by the defense of release and, in a memorandum decision, found that the release was executed under a mutual mistake of fact on the part of the Evanses and thus was not a bar to their actions. Subsequent trial of the merits resulted in verdicts for $10,910 in Mrs. Evans' action and for $16,180 in her husband's. Defendant's appeals challenge (1) the setting aside of the release, (2) the sufficiency of the evidence of negligence to warrant submission to the jury, (3) the judge's refusal to give a requested charge on the issue of negligence, and (4) an answer by the judge to the jury's request for a further instruction on causation.*fn1
I. VALIDITY OF THE RELEASE.
As the judge found, "Both plaintiffs were mature middle aged persons and there is no claim of lack of intelligence or understanding on their part or overreaching on the part of the defendant." The evidence was uncontradicted that before the Evanses signed the release Ryan had explained its effect to them, had inquired whether Mrs. Evans was injured, had received a negative response from her and her husband, and had even suggested that she see a doctor, to which she replied that it was not necessary. The judge thus correctly concluded that the only basis that would warrant refusal to give effect to the release would be mistake; he held the evidence before him showed a mistake that would entitle plaintiffs to have the release set aside under New York law.
The opinion of the New York Court of Appeals most frequently cited in cases of this sort is Farrington v. Harlem Savings Bank, 280 N.Y. 1, 3, 19 N.E.2d 657 (1939). Farrington had executed a release for $30 when he knew only that he had suffered "a scalp wound and some bruises"; later it turned out that a bone in his left arm had been fractured, with consequent loss of use. On appeal from a judgment dismissing the complaint on the basis of the release, the Court of Appeals reversed. However, the Court relied not on Farrington's ignorance of the internal injury but rather on evidence that he had not read the release before signing it and had been told by the claim agent that it was merely a receipt. Judge Hubbs stated:
"No doubt the plaintiff had a perfect right to agree to settle for the injuries which were known and for all other injuries which might result, and such an agreement would be binding upon him no matter how serious the result of the injuries might thereafter turn out to be, provided the agreement was fairly and knowingly made."
If the sentence had not included the proviso, the instant case, and many others, would be clearly ruled for defendants. However, the sentence did include the proviso, and the New York courts have devoted much effort to elucidating it. In that process, they have thought it useful to say, among other things, that "When the settlement is made on the assumption of the existence of a state of facts, it may be rescinded if that state of facts does not presently exist," but that "Where * * * there is no mistake concerning the injuries but only a miscalculation of consequences, the voluntary settlement of the parties is irrevocable as to both." Mack v. Albee Press, Inc., 263 App.Div. 275, 277, 32 N.Y.S.2d 231, 233 (1st Dept.), aff'd, 288 N.Y. 623, 42 N.E.2d 617 (1942). This language is not too helpful in determining whether, if an impact causes both an external injury that had become manifest before the time of the release and an internal one that had not yet become so, the case is one of mistake as to the existence of a present injury, so that the release may be set aside, or merely one of miscalculation as to the consequences of a known injury, so that it may not be.
Although the New York cases do not yield an assured conclusion, they suggest to us that the former answer is the correct one, at least when, as here, the circumstances negate a considered decision to arrive at a fair liquidation of all injuries, including those which were unsuspected. A case especially persuasive is Brown v. Manshul Realty Corp., 271 App. Div. 222, 223, 63 N.Y.S.2d 1, 2 (1st Dept.), aff'd, 299 N.Y. 618, 86 N.E.2d 179 (1949). This applied the formula quoted from the Mack decision to set aside a release where the plaintiff thought he had received only superficial injuries at the time he signed the release in return for $150, but actually had sustained a fractured clavicle and dislocated joint. See Record, 10. Both the Appellate Division and the Court of Appeals evidently thought the case different from Mack, where the plaintiff knew the full present extent of the bruise to his toe at the time he settled for $275, and had been warned by his physician of the peculiar gravity the bruise might have to him because of his diabetes; his asserted "mistake of fact" in not being aware that the bruise would result in gangrene and in amputation of his leg could thus be characterized as a "miscalculation of [the] consequences" of a known injury. The Court of Appeals must likewise have regarded the Brown case as distinguishable from Yehle v. New York Central R.R., 267 App.Div. 301, 46 N.Y.S.2d 5 (4th Dept. 1943), aff'd, 295 N.Y. 874, 67 N.E.2d 516 (1946), which is similar to the instant case in some respects, but quite dissimilar in others that we deem controlling. There a release was held to preclude recovery for an injury to the pituitary gland unknown to the parties at the time of settlement; the plaintiff did know she had suffered serious lacerations, fractures and vaginal bleeding, for which she had been hospitalized for three months at the defendant's expense. The release was not executed until five months after the accident, and then after much discussion of plaintiff's injuries and for a payment of $9,000 in addition to the hospital expenses, which were estimated at more than $3,000. The circumstances thus clearly pointed to a desire on the part of both sides to make a fair and final disposition of the claim. Such a situation differs markedly from the present one, where the Evanses signed the release after a few minutes' discussion in order to help their neighbors collect for the damage to the latters' truck and with no consideration whatever to themselves.
No useful purpose would be served by discussion of the many other New York cases we have reviewed, including such recent ones as Duch v. Giacquinto, 15 A.D.2d 20, 222 N.Y.S.2d 101 (3d Dept. 1961); Acevedo v. City of new York, 15 A.D.2d 899, 225 N.Y.S.2d 584 (1st Dept. 1962), and Gallo v. Montenigro, 17 A.D.2d 935, 234 N.Y.S.2d 490 (1st Dept. 1962); it is sufficient to say ...