Heckenkamp v. Kennedy
Decision Date | 24 June 1959 |
Docket Number | No. 16180.,16180. |
Citation | 267 F.2d 887 |
Parties | Joseph E. HECKENKAMP, Jr., Appellant, v. John L. KENNEDY, Appellee. |
Court | U.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.
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:
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: — 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:
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...
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