Burnham v. Williams

• Decision Date: 02 May 1917
• Docket Number: No. 1956.,1956.
• Citation: 198 Mo. App. 18,194 S.W. 751
• Parties: BURNHAM v. WILLIAMS et al.
• Court: Missouri Court of Appeals

194 S.W. 751

198 Mo. App. 18

BURNHAM v. WILLIAMS et al.

No. 1956.

Springfield Court of Appeals. Missouri.

May 2, 1917.

Rehearing Denied May 25, 1917.

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Lon Burnham against F. H. Williams and another. From a judgment for plaintiff, defendants appeal. Affirmed.

G. A. Hodgman, of St. Louis, and Leslie C. Green, of Poplar Bluff, for appellants. L. M. Henson, of Poplar Bluff, for respondent.

FARRINGTON, J.

Plaintiff recovered a judgment in the circuit court, and defendants have appealed. Plaintiff filed his suit in a justice's court in Butler county, basing his cause of action on an alleged negligent act of one Paul D. Quinn, where a judgment in plaintiff's favor was rendered for $56. Defendants appealed to the circuit court, and on trial de novo plaintiff recovered the judgment of $100 appealed from.

The charge of negligence in the petition is that while plaintiff was driving his automobile north along Main street in the city of Poplar Bluff, and when about 30 feet north of Poplar street, defendant Quinn, driving defendants' automobile carelessly and negligently, and without warning, turned the car he was driving across said Main street immediately in front of plaintiff's car and collided with plaintiff's car. Further, that Quinn failed or neglected to go to the intersection of Main street and any other street to turn said defendants' automobile as required by the ordinances of the city, and failed and neglected to give any warning that he was about to turn said automobile; but plaintiff alleges that said defendant carelessly and suddenly turned across said street immediately in front of the plaintiff, and that plaintiff was unable to prevent a collision between his car and that of the defendants. The petition then sets out the damage done to plaintiff's car and asks damages in the sum of $100.

It is claimed by respondent and admitted by appellants that no case could be found passing on the issue presented to us by appellant in this case, and the unique state of facts that we shall presently set out probably accounts for a failure of a court of record to have ever before been called upon to pass on the contention made.

Plaintiff owned an automobile which he operated himself, and was insured against damage occasioned by his machine in a policy or indemnity contract issued by the Hartford Accident & Indemnity Company. Defendants owned an automobile which was being operated by defendant Quinn on the day the collision occurred. The evidence clearly shows that plaintiff was driving his machine in a careful manner, on the right side of the street, going north on Main street, and that the defendant Quinn, whose car had been standing still on the right side of Main street, turned it immediately toward the west without giving any warning. At the time he did this, plaintiff's car was so close that a collision could not have been prevented by the use of any means at plaintiff's hands. Without going into detail, it is sufficient to say that the case made by plaintiff was that he was without blame or negligence, and that Quinn was negligent, and that his act was the proximate cause of the accident. When the collision occurred, both cars were damaged considerably, and Quinn was injured and rendered unconscious for several days.

Plaintiff immediately notified the insurance company of the accident, and in due course of time its adjuster came to Poplar Bluff, who talked with plaintiff concerning the accident. The evidence shows that plaintiff informed the adjuster of all the facts and circumstances and told him he was not to blame for the collision. Quinn in the meantime was asserting a claim against plaintiff and threatening to sue him for $5,000. After some negotiations and talk with both parties, it is admitted that the plaintiff told the adjuster for the insurance company that he was in no way liable or responsible for the damage to Quinn or his car. Nevertheless, the adjuster for the insurance company made a settlement with Quinn in the terms of which the plaintiff was not consulted, by which Quinn was paid $200 in full satisfaction of any claim he might have against Burnham growing out of the collision. A receipt or release was signed by Quinn, in which it is stated that there is no admission of any liability on the part of Burnham. The release is as follows:

"For the sole consideration of the sum of two hundred and 00/100 dollars ($200.00) lawful money of the United States to me in hand paid this 14th day of June, 1916, by Lon Burnham, I Paul Quinn, being of lawful age, hereby release, acquit, and forever discharge the said Lon Burnham, heirs, executors, and administrators from any and all actions, causes of action, claims and demands accrued and to accrue on account of any and all known and unknown injury, loss and damage whatsoever sustained by me on or about the 29th day of January, 1916.

"It is expressly understood and agreed that the acceptance of the said amount of $200.00 is in full accord and satisfaction of a disputed claim and that the payment of the said sum of $200.00 is not an admission of liability.

"In witness whereof, I have hereunto set my hand and seal this 14th day of June, 1916.

                                       "Paul Quinn. [Seal.]"
                

Bu...