Bogus v. Birenbaum
| Decision Date | 13 January 1964 |
| Docket Number | No. 2,No. 49869,49869,2 |
| Citation | 375 S.W.2d 156 |
| Parties | Marilyn BOGUS and Melvin Bogus, Her Husband, Individually, Respondents, v. Rose BIRENBAUM, Appellant |
| Court | Missouri Supreme Court |
Burton H. Shostak, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
Jack J. Schramm, Schramm & Schramm, Clayton, for respondents.
This is an appeal from a decree in equity setting aside a written release of liability for personal injuries and property damage arising out of a collision of automobiles. The plaintiffs, husband and wife, filed suit jointly for damages. One of the defenses pleaded in the answer was a written release executed by the plaintiffs. In a special reply the plaintiffs alleged that the release was executed as the result of a mutual mistake of fact. On motion of the defendant and with plaintiffs' consent, the issue as to the validity of the release was separately tried by the court in equity. The decree was deemed a final judgment for purposes of appeal in accordance with Civil Rule 82.06, V.A.M.R. and the defendant appealed.
The automobile collision occurred on the parking lot of an A & P Food Store in St. Louis County as Mrs. Bogus, driving her husband's car, was entering the lot and the defendant was backing her automobile from a parking space preparatory to leaving. The plaintiff wife pleaded both specific and humanitarian negligence and prayed for damages in the sum of $15,000. Her alleged injuries included a loss of pregnancy. The husband in the same action sought $3,608.81 for loss of consortium and for expenses including repairs to his automobile. The defendant's answer admitted that the automobiles 'came into slight contact' at the time and place in question, denied all other allegations of plaintiffs' petition, alleged contributory negligence on the part of the plaintiff wife, and pleaded the release.
The plaintiffs, in their special reply to the defense of release, admitted they signed the paper purporting to be a release and delivered it to the agent of the defendant's insurer and further asserted that $66.86, the amount of the settlement, was the estimated cost of repairing the husband's automobile, and that a draft in that amount received by the plaintiffs in the mail was not cashed and was tendered back to the defendant's insurer which refused to accept its return. The alleged grounds for invalidating the release were stated in the reply as follows: '* * * that said purported release was signed by reason of the fact that there was a mutual mistake of fact upon the part of Plaintiffs and the aforesaid agent of the insurance company for the Defendant with respect to the nature and extent of the injuries suffered by Plaintiff Marilyn Bogus; that the aforesaid agent and servant of the insurance company of Defendant mistakenly believed either that Plaintiff Marilyn Bogus was not injured at all, or that her injuries received in the accident were inconsequential and of a minor nature; that both Plaintiffs likewise did not know the nature and extent of the injuries of Plaintiff Marilyn Bogus and the degree of permanence of said injuries that in reality existed at the time of the execution of said purported release; and that Plaintiffs first learned of the nature and extent of said injuries which existed at the time of the execution of said purported release only after said purported release was signed by them; that Plaintiffs would not have signed the said purported release if they had known the true nature and extent of the injuries suffered by Plaintiff Marilyn Bogus; that for the foregoing reasons the said purported release should be declared null and void and held of no effect.'
The defendant's contention on appeal is that the evidence was wholly insufficient to establish a mutual mistake in equity because, if there was a mistake, it was not mutual but unilateral and the injuries relied on by the plaintiffs were not shown to have a causal connection with the accident. In general the plaintiffs assert that the parties did not intend to settle for unknown personal injuries but for property damages only; that it is immaterial that the defendant's agent acquired all his information with respect to injuries and damage from the plaintiffs; that it was not necessary to prove when the loss of pregnancy occurred or, in this trial, that it was caused by the accident.
The release, in evidence as defendant's exhibit A, recited receipt of the consideration of $66.86 and stated that Mr. and Mrs. Bogus released the defendant and her husband 'of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen, and unforeseen, bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from auto collision which happened on or about the 16th day of Sept, 1960 at or near A & P Parking Lot on Olive Street Road.' The release also contained the stipulation that: 'It is further understood and agreed that this settlement is the compromise of doubtful and disputed claims, and that the payments are not to be construed as an admission of liability on the part of Carl Birenhaum and Rose Birenbaum by whom liability is expressly denied.' Mr. Bogus admitted that he read the release before signing it. Mrs. Bogus could not recall reading the release but admitted signing it. The most unusual feature of this case is that all contacts between the parties were by telephone and mail.
Mrs. Bogus testified her car was hit while she was sounding her horn to alert the driver of the automobile which was backing out of a parking space. The rear of the defendant's automobile struck the front right section of the Bogus car and Mrs. Bogus was jarred against the steering wheel. She felt a slight pain in her chest and lower part of her stomach at the time it happened but the pain was not continuing. Mr. Bogus was called and went to the scene of the accident where he talked with the defendant and then took his wife home. After she got home, Mrs. Bogus became upset and vomited for three or four days. She was nervous for about a week. She felt that being nauseated was a normal condition in connection with her pregnancy.
Mrs. Bogus was twenty years old at the time of the accident and was the mother of one child. In August before the accident on September 16, 1960, Mrs. Bogus was examined by her doctor and informed that she was pregnant. Mrs. Bogus was concerned about her pregnancy immediately after the accident but it went out of her mind completely when 'nothing happened' to her. Prior to a visit to Dr. Ira Gall, her obstetrician, on September 27, 1960, her morning sickness had stopped, but she was not disturbed because according to her own and her doctor's calculations it would have been normal for the nausea to end. She was concerned because she had no sensation of soreness in her breasts. She told Dr. Gall that she did not feel pregnant and reported to him she had been in an automobile accident on September 16. She began 'spotting' about October 8 or 9.
Dr. Gall further testified that he examined Mrs. Bogus on October 4 and found her uterus was not in a condition consistent with pregnancy but he did not tell her about it. On October 12 she visited Dr. Gall and complained of cramps along with spotting. The doctor prescribed medication for her on this visit and again on October 18. Dr. Gall suspected a troublesome pregnancy in the last two weeks in October. In late October a repeat pregnancy test was made and it was negative. On November 4 at Jewish Hospital, Dr. Gall performed a curettement on Mrs. Bogus. This is a procedure whereby the products of conception are removed from the lining of the uterus by scraping. The post-operative diagnosis of Mrs. Bogus' condition was a missed abortion which is unlike a regular miscarriage or abortion in that the products of conception are not passed with bleeding or hemorrhage, but instead the tissues and parts are absorbed by the body. Some mention of the trouble with the pregnancy may...
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