For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None.
[47 NJ Page 230] Judge Schalick of the Superior Court, Law Division, found that a general release executed by the plaintiff, Edward Raroha, barred him from pursuing his personal injury claim against the defendant, Earle Finance Corp., Inc. (Earle). A judgment was entered dismissing plaintiff's complaint,
and we certified his appeal on our own motion prior to argument in the Appellate Division.
Plaintiff commenced this action to recover damages resulting from a purported assault and battery. The complaint alleged that on March 30, 1962, plaintiff was unlawfully attacked by defendant's agent, Benjamin Bruno, who was attempting to collect an overdue loan made by Earle to plaintiff.*fn1 Earle filed an answer denying liability and asserting as an affirmative defense that the action was barred by a release executed by the plaintiff. Plaintiff filed a reply seeking to void the release on the grounds of duress, fraud, misrepresentation, incapacity, mistake and illegality. An amendment to the reply further asserted that the release was not intended to cover the claims for which suit was brought.
On application of the defendant the trial court ordered that the validity of the release be determined at a separate trial to be held before any consideration of the merits of plaintiff's claim for assault and battery. This trial was held before the judge, sitting without a jury, where it was shown that the plaintiff, age 39, was involved in an altercation with Bruno on March 30, 1962, resulting in an injury to his right arm. Plaintiff signed a complaint in the Camden Municipal Court charging Bruno with assault and battery, and the matter was originally scheduled for hearing on April 17, 1962. Prior to that date plaintiff asked an attorney, Joseph Asbell, to represent him in a civil action to recover damages for the injuries sustained. The attorney told the plaintiff he could not take the case because he was the city prosecutor. However, he advised plaintiff to have a professional photographer take pictures of his arm. Plaintiff followed this advice and the resulting pictures were presented to the magistrate on April 17.
Bruno appeared at the hearing, represented by an attorney, William Reifsteck, who had been retained by Earle. Testimony was taken and the matter was then adjourned to May 7, 1962, to give Bruno the opportunity to subpoena an additional witness. On May 7 further testimony was taken after which the matter was adjourned to June 4, 1962. Between May 7 and June 4 there was a series of negotiations between the parties in which they sought to reach a settlement for the injuries sustained by the plaintiff. On June 4 the plaintiff withdrew his charges against Bruno and on the following day he went to Reifsteck's office. There plaintiff received a check for $100 and his indebtedness to Earle (about $200) was cancelled. At that time he executed two general releases, one running to Bruno and one to Earle, discharging them from all liability arising from the occurrence on March 30, 1962.
After his injury on March 30 plaintiff made several visits to his family physician, Dr. Marcarian. In a written report dated April 14, 1962, Dr. Marcarian described plaintiff's condition as follows: "[I]njured right arm with ruptured blood vessels around the elbow region & very marked swelling & trauma." By early June plaintiff's condition had apparently greatly improved and in another written report dated June 2, 1962, Dr. Marcarian stated: "Examination of [plaintiff's] right elbow reveals that he has recovered completely from the injury sustained on March 30, 1962." At the trial plaintiff testified that at the time he signed the releases he still felt a "tinging" in his arm. However, he further testified that Dr. Marcarian assured him that the "tinging" was not serious and resulted from a stretching of the ligaments, nerves and muscles, which stretching would gradually disappear. Plaintiff was never examined by a physician selected or employed by Bruno or Earle, and his total medical bills prior to June 4, 1962 apparently totaled less than $100.
Despite the optimistic prediction of his physician, the condition of plaintiff's right arm did not improve but in fact worsened. On January 21, 1963, plaintiff was examined by Dr. Leopold David who found that his ability to use his arm
was impaired by muscle atrophy resulting from damage to the ulnar nerve. In response to a hypothetical question, Dr. David stated that the injury was causally connected to the altercation of March 30 and that the tingling felt by plaintiff about the time he signed the release was a manifestation of the ulnar nerve involvement. According to plaintiff's testimony the impaired condition of his right arm still existed at the time of the trial.
Plaintiff seeks to set aside the release to Earle executed on June 5, 1962, on the ground that he is a person of low intelligence and poor comprehension who did not understand that the instrument he was signing was a release which would bar all future claims arising from the episode with Bruno. He further alleges that defendant's attorney, Reifsteck, was guilty of overreaching in procuring the execution of the release.
In refusing to rescind the release the trial court found no evidence that plaintiff's mental capacity ...