Child v. Lincoln Enterprises, Inc.
| Decision Date | 17 August 1964 |
| Docket Number | Gen. No. 10530 |
| Citation | 200 N.E.2d 751,51 Ill. App. 2d 76 |
| Parties | Lillian Byrnes CHILD, Plaintiff-Appellant, v. LINCOLN ENTERPRISES, INC., a corporartion, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
J. Waldo Ackerman, Jr., Springfield, for plaintiff-appellant.
Olsen & Cantrill, Springfield, for defendant-appellee.
Plaintiff, Lillian Byrnes Child, was injured in an automobile accident on January 12, 1962, in the City of Springfield, Illinois, while riding as a passenger in a taxicab owned by the defendant, Lincoln Enterprises, Inc.On February 13, 1962, the plaintiff signed a Covenant Not to Sue the defendant for a consideration of $250.00.The plaintiff, thereafter, filed a suit for damages against defendant alleging serious and permanent injuries.The defendant, by counterclaim based upon the Covenant Not to Sue, sought to enjoin plaintiff from proceeding with her cause of action.Plaintiff then amended her complaint alleging fraud and mutual mistake and praying that the court set aside the Covenant Not to Sue so that plaintiff could proceed with her action at law for damages.The trial court sitting in Chancery, without a jury, heard the evidence and refused to set aside the Covenant Not to Sue and granted the injunction sought by the defendant enjoining plaintiff from proceeding with her case at law for damages.It is from this judgment order the plaintiff appeals.
It is plaintiff's theory that the Covenant Not to Sue was voidable because it was obtained by fraud and based on mutual mistake as to the nature and extent of her injuries.Defendant contends that the Covenant Not to Sue was taken as a purchase of peace, and entered into between the parties of full legal capacity, and that no fraud or mutual mistake was present.
Plaintiff, 72 years of age, was a passenger in defendant's taxicab on January 12, 1962, when it was involved in an intersection collision at Pasfield and Adams Streets in Springfield, Illinois.The defendant taxi was proceeding south on Pasfield Street.A stop sign controls traffic going south on Pasfield at its intersection with Adams Street.On the date of the collision, the temperature was below zero and the streets at the intersection were covered with ice and snow.The defendant taxi had traveled 6 or 8 feet into the intersection when it collided with a car proceeding in a westerly direction on Adams Street.
Between January 12, 1962, the date of the injury, and February 13, 1962, the date of the signing of the Covenant Not to Sue, the plaintiff had several conversations with William L. Sullivan who was a claim adjuster for the insurance carrier of the defendant taxicab company.Sullivan had investigated the circumstances surrounding the collision and plaintiff had not.Plaintiff testified that Sullivan told her he was a lawyer and that she believed him.On the other hand, Sullivan denied that he told plaintiff that he was an attorney, which he was not, but admits that he told her that he had legal training and had gone to law school.It is agreed that Sullivan told plaintiff that he had investigated the circumstances and that the cab company and cab driver were not liable to plaintiff for her injuries.Sullivan told plaintiff that the driver of the other car which was involved in the collision had had another accident before this one and he was responsible for the collision.
Plaintiff told Sullivan that she was anxious to get proper medical care which cost money and that she didn't have it but Sullivan told her he could not guarantee bills unless she gave them a release.
Although the parties agree that they discussed making a claim for injuries against the driver of the other car, they differ as to the substance of that conversation.Plaintiff insists that Sullivan told her that he would prosecute the other driver for her if she signed the Covenant Not to Sue.She testified that her understanding of the covenant was that the signing of it would free Sullivan to proceed against the driver of the other car, would free him to work on her case.Sullivan, on the other hand, testified that he told plaintiff that he couldn't bring suit for her, but that he would see that his company furnished her with any statements it might have, and witnesses that he could locate, and anything else that she might need to collect from the other driver.
The plaintiff testified that Mr. Sullivan told her that before he could deal with her that she would have to be examined by a medical doctor.After that, she saw a Dr. Cowdin for an examination.The plaintiff gave her age to the doctor and also to Mr. Sullivan as 56 years instead of 72 years, her true age.She testified that although she was able physically to practice her profession until her injury that if her actual age of 72 were known, she would not be allowed to work at the hospital.She explained that this was the reason she misstated her age.
Dr. Fred P. Cowdin, a medical doctor, practicing in Springfield, Illinois, testified that he first saw the plaintiff on January 27, 1962.He stated that she was suffering a great deal and gave a history of being in a taxi when there was a collision.He stated that at that time she had numerous symptoms of a whiplash injury, had a bump on her forehead and her shoulder was very painful.On manipulation of her arm, she was having a great deal of pain.He didn't find any fractures and later x-rays at the hospital revealed that there were no fractures.He could not tell at the time of the first examination whether or not her injuries were permanent.However, he was of the opinion that she would be able to return to work in a few weeks.At that time, he did not know that she had a pre-existing arthritic condition.Dr. Cowdin testified that he apparently was mistaken in his original diagnosis as to the nature and extent of her injuries because at the time he testified, it had been a year and a half after the accident and the plaintiff was still complaining of pain.
The plaintiff was examined by an orthopedic specialist on May 19, 1962, and he testified in substance that the plaintiff had a pre-existing arthritic condition before the accident...
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D. Terms Providing Additional Value to the Parties
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