Bogus v. Birenbaum, 49869

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSTORCKMAN
Citation375 S.W.2d 156
PartiesMarilyn BOGUS and Melvin Bogus, Her Husband, Individually, Respondents, v. Rose BIRENBAUM, Appellant
Docket NumberNo. 2,No. 49869,49869,2
Decision Date13 January 1964

Page 156

375 S.W.2d 156
Marilyn BOGUS and Melvin Bogus, Her Husband, Individually, Respondents,
Rose BIRENBAUM, Appellant.
No. 49869.
Supreme Court of Missouri, Division No. 2.
Jan. 13, 1964.
Rehearing Denied Feb. 10, 1964.

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.

Page 157

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

Page 158

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...

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8 cases
  • Austin v. Trotters Corp., 17199
    • United States
    • Court of Appeal of Missouri (US)
    • September 20, 1991
    ...makes no reference to a receipt, nor does she state that she was told the release was "merely a receipt." 5 In Bogus v. Birenbaum, 375 S.W.2d 156, 160 (Mo.1964), the court "The cancellation of a release on the ground of a mistake is ordinarily granted only where the mistake is mutual, but i......
  • Jaycox v. Brune, 53056
    • United States
    • United States State Supreme Court of Missouri
    • December 9, 1968
    ...the claimant has the burden of proving the release to be invalid. Conley v. Fuhrman, Mo., 355 S.W.2d 861; Bogus v. Birenbaum, Mo., 375 S.W.2d 156. We must decide first whether plaintiff legally admitted the execution of this release, although the necessity of so doing seems rather foolish u......
  • Sharp v. Interstate Motor Freight System, 53371
    • United States
    • United States State Supreme Court of Missouri
    • June 25, 1969 to the question of liability, on analogy to the cases of Conley v. Fuhrman, Mo.Sup., 355 S.W.2d 861; Bogus v. Birenbaum, Mo.Sup., 375 S.W.2d 156; Finley v. Smith, Mo.App., 170 S.W.2d 166, transferred, 352 Mo. 465, 178 S.W.2d 326; Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, and Sup......
  • Sanders v. Insurance Co. of N.America
    • United States
    • Court of Appeal of Missouri (US)
    • January 16, 2001
    ...misrepresentations. Having admitted that she signed the instruments, she had the burden of proving their invalidity. Bogus v. Birenbaum, 375 S.W.2d 156, 160 (Mo. 1964). To make a submissible case of fraudulent misrepresentation, the following elements must be proven: (1) a false, material r......
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