APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed and case remanded with instructions.
Messrs. Conner & Jones and Messrs. Robles & Dodd, for appellant.
Mr. O. E. Myrland, Mr. Bryce H. Wilson and Mr. Abbie Y. Holesapple, for appellee.
[52 Ariz. 116] LOCKWOOD, J.
Antonio Preciado, hereinafter called plaintiff, brought suit against Bernabe Robles, hereinafter called defendant, for damages for personal injuries which plaintiff alleged he had sustained while working for defendant. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $3,500, and upon which verdict judgment was rendered. After the usual motion for new trial had been overruled, this appeal was taken.
The evidence taken in the strongest manner in behalf of plaintiff, as under our oft-repeated rule we must consider it, shows the following facts: Plaintiff was an illiterate laborer who for some time had, with his family, occupied a house in Tucson owned by defendant. The roof of a portion of the house had been covered with some form of tar paper, which had begun to leak, and defendant instructed plaintiff to repair it with the same type of material. While he was working upon the roof, in the course of making such repairs, he slipped and fell to the ground, breaking his leg and suffering other serious injuries. Defendant paid certain doctor bills and gave plaintiff, from time to time, small sums of money for the maintenance of his family during his illness, and shortly thereafter secured from him the following instrument:
"Know all men by these presents that, in consideration of the sum of five hundred dollars to him, the undersigned, in hand paid by Bernabe Robles, the receipt whereof is hereby acknowledged, I hereby accept the same in full compensation and settlement for, and hereby release and forever discharge said Bernabe Robles and all its agents and employees from, any and all claims, demands and liabilities to me on account of any and all injuries, losses and damages [52 Ariz. 117] to my person and or property which have caused, or may at any time arise, by reason of that certain accident which occurred at 558 South Meyer, Tucson, Arizona, on or about the 29th day of August, 1935; the intention hereof being to completely, absolutely and finally release said Bernabe Robles and its employees from all liabilities arising wholly or partially from the cause aforesaid.
"And the undersigned jointly and severally covenant and agree, in consideration of the premises, to protect and save harmless said Bernabe Robles and all its employees from any further loss, damage or expense, by reason of litigation or otherwise, on account of the claims, liabilities and injuries to person or property aforesaid.
"[Signed] ANTONIO S. PRECIADO."
Some time thereafter, and within the statutory period, plaintiff brought this action. The complaint, so far as material, reads as follows:
"III. That on or about the 5th day of August, 1935, the Defendant engaged the services of the Plaintiff to assist other employees of the Defendant in the repairing of certain houses owned by the Defendant, and agreed to pay to the Plaintiff, and did pay to the ...