Gould v. Lippmann

BLODGETT, J.

Heard upon demurrer to replication.

Action for damages in an automobile accident.

Plaintiff gave a release to defendant not to sue for same. This release is set up in a special plea.

The replication in avoidance of said release sets forth that owing to severe bodily injuries, resulting in the amputation of a leg and depriving plaintiff of the possession of her senses, she executed said release without realizing the import of the same; also that plaintiff was not of sound mind; also that plaintiff has received no consideration from the said defendant or from Casper A. Sutton, either directly or indirectly.

The demurrer is based upon the ground that the replication is duplicitous 'because it confesses to avoid the plaintiff’s covenant, upon the ground that the plaintiff at the time of signing same was not of sound mind, and also confesses and avoids said plaintiff's covenant upon the ground of receiving no compensation for such release.

The demurrer necessarily admits the fact that plaintiff at time of execution of said covenant was of unsound mind and received no consideration.

The question at issue as to the demurrer is whether the replication sets forth separate causes of defense that do not constitute constituent parts of the same entire defense, that is, whether they are distinct and independent alleged to the same point and requiring different answers.

McAleer vs. Angell, 19 R. I. 689.

The Court is of the opinion the facts alleged constitute constituent parts of the same defense.

Demurrer to replication overruled.