Drumm

Marie S. Hart was operating an automobile in a heavy fog and the machine collided with a freight train, injuring a guest passenger, Feme Drumm, who thereafter sued Mrs. Hart for damages. A jury found for the plaintiff in the sum of $7,000 and defendant appeals from the judgment entered thereon.

The issue before us very largely lies around the effect of two written instruments, one a settlement entered into whereby Herbert H. Hart was unconditionally released from further liability and the other a sight draft for the sum of money mentioned in the settlement. The sight draft, issued by an insurance company, names H. H. Hart as the insured and Feme and Louis S. Drumm as claimants for damages received through the accident. It purports on its face to be a release for damages resulting from the accident, and is signed by both Feme and Louis S. Drumm as payees. In a like situation in Garcia v. California Truck Co., 183 Cal. 767, at 769 [ 192 Pac. 708 ], the Supreme Court said that unless the release was avoided in some legitimate way it would constitute an insuperable bar to recovery. For further authority on the point see Tompkins v. Clay St. R. R. Co., 66 Cal. 163 [ 4 Pac. 1165 ],…