Heckenkamp v. Kennedy

Decision Date24 June 1959
Docket NumberNo. 16180.,16180.
Citation267 F.2d 887
PartiesJoseph E. HECKENKAMP, Jr., Appellant, v. John L. KENNEDY, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Harry Carstarphen, Hannibal, Mo. (Frank B. Harvey, Hannibal, Mo., and R. G. Heckenkamp, Springfield, Ill., on the brief), for appellant.

Ben Ely, Hannibal, Mo. (Roger Hibbard, Hannibal, Mo., and George W. Peterson, Washington, D. C., on the brief), for appellee.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This diversity personal injury action presents the principal question of the legal effect of a release signed by appellee, plaintiff below, which by its terms fully and completely released all claims accruing to plaintiff for injuries he sustained as the result of being struck while a pedestrian, by an automobile being driven and operated by the appellant, defendant.

After the action was removed from the Circuit Court of Marion County, Missouri, to the United States District Court, defendant filed his answer in which the issues were joined on the allegations of negligence. As an affirmative defense, the defendant alleged that on January 22, 1955, plaintiff entered into and executed an agreement with defendant whereby, in consideration of the payment to plaintiff of $6,000, he fully and finally released defendant of and from any and all claims arising from the personal injuries sustained as the result of the "auto-pedestrian accident" which occurred on December 30, 1954. The answer pleaded the release in haec verba, but no useful purpose will be accomplished by incorporating it herein. By way of reply, plaintiff admitted that he signed the paper writing and admitted that he received the sum of $6,000. To avoid the effect of the release, plaintiff alleged that it was executed by him as the result of certain fraudulent conduct on the part of one W. F. Cook, the representative and agent of the Illinois National Casualty Company, defendant's liability insurance carrier. The fraud relied upon will be discussed in the further course of this opinion. The trial court denied defendant's motion for a directed verdict, and by instructions which hypothesized the facts as developed by the evidence, submitted the question of the validity of the release to the jury. Following a verdict in favor of the plaintiff, defendant filed motion for judgment in accordance with his motion for directed verdict, grounded in part upon the plea that the execution of the release barred plaintiff from maintaining the cause of action. This motion was likewise overruled, and an appeal was timely perfected.

In view of defendant's contention urged throughout the trial and on appeal that the paper writing executed by plaintiff constitutes a bar to this action as a matter of law, we shall review the evidence leading up to and surrounding the execution of the document in question from the standpoint most favorable to plaintiff.

At the time of the accident, plaintiff was working near Quincy, Illinois, as a section hand for the Burlington Railroad. While plaintiff was walking westwardly on the shoulder of U. S. Highway No. 24 near West Quincy Station in Missouri, he was struck by defendant's automobile. He was taken to a hospital in Quincy, Illinois. The third or fourth day after the occurrence, Mr. Cook called upon plaintiff, but at that time there was no talk of settlement. After plaintiff's wife arrived from their home in Minnesota, Cook visited with plaintiff the second time, but "no figures of settlement were discussed then." Thereafter plaintiff called or wrote to Cook requesting that he come to the hospital on Friday, as he knew his wife would also be present. We now quote from plaintiff's testimony to reveal the events which culminated in the execution of the release:

"Q. When he came on that occasion, was there any discussion had between you two about a settlement? A. Yes. I had asked him if he would guarantee the payment of the hospital and doctor at the Quincy Hospital, so that we could go home, because when the missus came down the first week Dr. Merritt told her I could go home in two weeks provided everything was all right.
"Q. All right. What, if anything, did he tell you with respect to guaranteeing the hospital and doctor bill? A. He said the company would not guarantee payment of any bill, but they would make a settlement and I could pay my own bills.
"Q. Going back to the morning that Mr. Cook was there and had told you that he couldn\'t pay the expenses, guarantee the expenses, but they could pay you, what, if anything, did you say to him about figures, if you did? A. Well, I just asked him what they would allow, when he said they couldn\'t make a settlement, and he told us to sit down and figure out what we should have coming, and he would have to call it into Quincy to get approval on anything. Dr. Merritt had told me there was a possibility of a future bone graft, because very often that type of a break did not heal properly. Dr. Merritt informed me normal healing for that type of break was between six and eight months. We then asked Cook $12,000.00, I think.
"A. He came back and said it was impossible for him to pay that amount. That all they would pay on that type of break was six thousand dollars.
"Q. Did he say why? A. Because something about the state insurance law or compensation laws or something. That is all that that type of break called for with a normal healing period, was six thousand.
"Q. What, if anything, did you say to that, if you said anything? A. Well, I don\'t recall if I said anything.
"Q. Was this question of future operation discussed? A. Yes, it was.
"Q. What was the result of that discussion? What did you learn? A. The settlement of six thousand dollars actually was for the original break as it was. Any future bone graft or abnormal longer or long healing period would be taken care of through an adjustment.
* * * * * *
"The Court: Just tell the words. What were the words he used, if you can remember, or the essence of them. A. That they were allowing that six thousand dollars on this type break. That is all the state would allow or the compensation law or something, I don\'t know which.
"By Mr. Hibbard: Q. Did he say anything about any future expense? A. Yes. If there was, they would be adjusted by the insurance company by turning in my bills from the hospital, doctor, or whatever the expenses were.
"Q. Was that statement made to you by Cook? A. Yes."

Mrs. Kennedy, plaintiff's wife, testified that she arrived at the hospital on the Friday referred to in the foregoing testimony. Bearing on the subject of settlement she stated: — "Mr. Cook asked us to have some figures so we would know approximately what we felt we should have. We prepared figures and estimates. I inquired for the hospital and my husband asked for the doctor bills. In making up the list of items to comprise final total for settlement we always had in mind that it would be possible that there might have to have (be) future surgery. I submitted the figures to Mr. Cook. I do not remember whether I did it by phone or personally. I told Mr. Cook we wanted $12,000. He said they would pay $6,000. Mr. Cook said in my presence, `Because they were judging it from the time of injury at that time with no supposition of what might be in the future.' He said our future bills would have to be taken care of at that time by the insurance company, by presenting the bills to them. Mr. Cook came Saturday and brought check for $6,000. and the paper to sign, and I signed it." With regard to the figures submitted by plaintiff's wife, it stands uncontroverted that plaintiff's wife furnished the following to Cook:

                  Hospital, .................................... $1,239.95
                  Anesthesia, ..................................     40.00
                  Wages for one year for pltf. .................  2,833.72
                  Truck garden, ................................    100.00
                  Transportation, ..............................    150.00
                  Estimated doctor and hospital bills for plft
                    after he returned to his home, .............    500.00
                  Drugs for pltf. after he returned home, ......    100.00
                  Bill of Dr. Merritt, .........................    379.00
                  Mrs. Kennedy, for two months service in taking
                    care of her husband, .......................    640.00
                                                                 _________
                           Total ............................... $5,982.67
                

The check for $6,000 was delivered by Cook on Saturday, and, at the same time, the release was signed. We will again let plaintiff describe what actually took place in connection therewith:

"Q. Did he come there to your room, or where did you talk to him? A. In the room.
"Q. What, if anything, happened then? What did he do? What did he give you, or what happened? A. He had the check that came in the mail to him, and he delivered the check over there.
"Q. How much was it? A. Six thousand.
"Q. Now, in that connection did you sign any papers? A. We signed the paper.
"Q. Tell us about that. Who had the paper? A. Mr. Cook brought it in.
"Q. What did he say about it, or what did he do? A. He said he had this check and this paper and before he could deliver us the check, we would have to sign this paper.
"Q. Did you read the paper? A. I glanced over it."

Over objection, the court also permitted plaintiff to state that when he signed the paper he thought that the payment of the $6,000 was "for the break at this time that it was in, with a healing period of from six to eight months."

As to the background, experience and general capabilities of plaintiff, it is revealed that he is a man 58 years old; he received an elementary education, served in the war, farmed, and then worked in a milk plant in Minneapolis. His position as manager thereof required him to "manage the men" working at the plant and "weigh in" the milk delivered by the farmers and enter a record thereof on a ledger sheet. He also worked in another...

To continue reading

Request your trial
9 cases
  • Myzel v. Fields
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 4, 1968
    ...known or available to both parties, ordinarily would not be considered within the protective basis of Rule 10b-5.10 Cf. Heckenkamp v. Kennedy, 267 F.2d 887 (8 Cir. 1959). In Shappirio v. Goldberg, 192 U.S. 232, 241-242, 24 S.Ct. 259, 261, 48 L.Ed. 419 (1904), it was "When the means of knowl......
  • Wills v. Trans World Airlines, Inc.
    • United States
    • U.S. District Court — Southern District of California
    • December 29, 1961
    ...problems of proof. See: Pence v. United States, 316 U.S. 332, 338, 62 S.Ct. 1080, 86 L.Ed. 1510 (1942); Heckenkamp v. Kennedy, 267 F.2d 887, 891 (8th Cir. 1959); Hobart v. Hobart Estate Co., 26 Cal.2d 412, 422, 159 P.2d 958, 964 (1945). On the other hand, as will be seen, the passenger is n......
  • General American Life Insurance Company v. Cole
    • United States
    • U.S. District Court — Eastern District of Missouri
    • May 31, 1961
    ...defrauded, (7) his reliance on its truth, and (8) his right to rely thereon. Lowther v. Hays, Mo., 225 S.W.2d 708, 713; Heckenkamp v. Kennedy, 8 Cir., 267 F.2d 887. And, the establishment of each essential element is necessary. Dillon v. Hill, Mo., 178 S.W. 85; Lowther v. Hays, supra; Hecke......
  • McMahon v. Meredith Corp., 78-1091
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 2, 1979
    ...Smith, Inc., 562 F.2d 1040, 1054 (8th Cir. 1977), Cert. denied, 435 U.S. 925, 98 S.Ct. 1490, 55 L.Ed.2d 519 (1978); Heckenkamp v. Kennedy, 267 F.2d 887, 891 (8th Cir. 1959); Abbey v. Heins, 546 S.W.2d at 554, 557; Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483, 488 (Mo.1966). A fa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT