Hicks v. Soroka

• Decision Date: 22 January 1963
• Citation: 188 A.2d 133,55 Del. 424
• Parties: , 55 Del. 424 Samuel H. HICKS, Plaintiff, v. Walter J. SOROKA, Defendant.
• Court: Delaware Superior Court

Page 133

188 A.2d 133

5 Storey 424, 55 Del. 424

Samuel H. HICKS, Plaintiff, v. Walter J. SOROKA, Defendant.

Superior Court of Delaware, New Castle County.

Jan. 22, 1963.

On defendant's Motion for Summary Judgment. Motion granted.

Sidney J. Clark and Joseph A. L. Errigo, Wilmington, for plaintiff.

Clement C. Wood (of Allmond & Wood), Wilmington, for defendant.

LYNCH, Judge.

The plaintiff was struck by an automobile in the southbound lane of Route 13, near Townsend, Delaware, on or about October 5, 1960. The plaintiff thereafter entered into negotiations for settlement, signed a release and received payment of $900.00, in form of a check. The release was in the following form:

'RELEASE AND SETTLEMENT OF CLAIM

'For the sole consideration of Nine Hundred and _____ 00/xx Dollars, to me/ in hand paid, the receipt of which is hereby acknowledged. I/ Samuel H. Hicks Releasor(s), being over 21 years of age, do hereby release, and forever discharge Walter J. Soroka, Releasee(s) and all other persons, firms or corporations from any and all claims, demands, rights, actions or causes of action on account of or in any way growing out of any and all personal injuries (and consequences thereof, including death, and specifically including, also, any injuries which may exist, but which at this time are unknown and unanticipated and which may develop at some time in the future, and all unforeseen developments arising from known injuries) and any and all property damage resulting or to result from an accident that occurred on or about the 15th day of Oct. 1960, and do hereby for myself/, my/ heirs, executors, administrators, successors, assigns and next of kin covenant to indemnify and save harmless the said above-named Releasee(s) and said persons, firms or corporations above-referred to, from all claims, demands, costs, loss of services, expenses, and compensation on account of or in any way growing out of said accident or its results both to person and property.

'It is expressly understood and agreed that the acceptance of the said above amount is in full accord and satisfaction of a disputed claim, and that the payment of the said above amount is not an admission of liability.

'In Witness Whereof, I/ have hereunto set my/ hand and seal this 2nd day of May 1961.

'Signature

'/s/Samuel H. Hicks (L.S.)

'________ (L.S.)

'CERTIFICATE OF WITNESSES

'We certify that this release was signed in our presence by the above who acknowledged that he/they understood it fully.

'Witness /s/ Sarah L. Briscoe

'Address Townsend Delaware'

It appears that Sarah Briscoe who witnessed the execution of the release is plaintiff's sister. She has filed no affidavit in the case.

On the reverse side of the check which was paid to plaintiff as part of his execution of the above quoted release the following legend appears:

'ENDORSEMENT BY THE PAYEE CONSTITUTES A COMPLETE RELEASE AND SETTLEMENT IN FULL SATISFACTION OF THE CLAIM OR ACCOUNT SHOWN ON REVERSE HEREOF

'/s/ Samuel H. Hicks'

The check was cashed on May 2, 1961. It is to be noted that plaintiff filed his complaint on June 9, 1961; it is to be further noted that plaintiff did not, prior to institution of his suit, return the $900.00 which he had been paid. The execution and delivery of the release and the endorsement of the check are pleaded by defendant as his Second Affirmative Defense. Plaintiff filed no response to the pleading thereto.

Rule 8(c), Rules of the Superior Court, Del.C.Ann., requires a party to 'affirmatively' plead 'release, * * * and any other matter constituting an avoidance or affirmative defense'. Rule 7(a), Rules of the Superior Court, provides there 'shall be a complaint and an answer; and there shall be a reply to a counterclaim denominated as such; * * *. No other pleading shall be allowed, except that the court may order a reply to an answer * * *.' Rule 8(d), Superior Court Rules, provides that averments in a pleading to which no responsive pleading is '* * * permitted shall be taken as denied or avoided'. As stated above, Rule 7(a) flatly prohibits the filing of any pleadings other than a complaint and answer and a reply to a counterclaim '* * * except that the court may order a reply to an answer * * *'; see, however, Rule 5(c), which seems not applicable to our case. ¹

Under our present Rules, after the defendant had pleaded release in his answer it was not clear from the record just what the issue would be with respect to the release, i. e. whether plaintiff denied execution of the release or would seek to avoid its effect. In my opinion defendant was required to take one of the suggested courses, such as moving the Court to require plaintiff to file a reply, as is provided by Rule 7(a).

The decisions of Columbia Pictures Corporation v. Rogers et al., 81 F.Supp. 580, 584 (Dist.Ct. S.D. West Va., 1949) and Monk v. United Life & Accident Ins. Co. of Concord, N. H., 2 F.R.D. 372 (Dist.Ct.E.D.Pa., 1942), when compared, well illustrate when a Court should order the filing of a reply to an affirmative defense and where one is not necessary.

Examination of the pleadings in the Prothonotary's Office of the case of McGuirk v. Ross, Del., 166 A.2d 429 (Sup.Ct., 1960), discussed hereafter, revealed that on defendant's motion the Court ordered the plaintiff in that cited case to reply to the affirmative defense of release pleaded by defendant. Such reply showed that defendant had only reimbursed plaintiff for a pair of broken glasses--shortly after the accident in which plaintiff was injured--and at a time when plaintiff was unaware of the extent of his injuries. Plaintiff pleaded in the reply that there was a mutual mistake of fact at the time of execution of the release pleaded by the defendant.

Defendant could have propounded interrogatories to plaintiff concerning the execution of the release and for other information relating to why plaintiff regarded the release to be ineffective. It would have been proper for defendant to have called upon plaintiff under Rule 36, Rules of the Superior Court, to admit execution of the release. These several steps by way of interrogatories and for admission of facts would have developed plaintiff's position with respect to the release.

An alternative to moving for a reply or seeking discovery was for defendant to move, as he did, for summary judgment under Rule 56, Rules of the Superior Court, basing his motion on the release and check pleaded. Defendant filed his brief in support of his motion for summary judgment on December 5, 1961.

Plaintiff's answering brief was not filed until April 9, 1962. Attached to this brief was an affidavit made by plaintiff and showing it had been executed January 26, 1962. The affidavit is set forth in full----

'On or about the 15th day of October, 1960, I was walking North on Route 13, near Townsend, Delaware, and was struck by an automobile operated by the defendant, Walter J. Soroka. Immediately after the accident I was taken to the Delaware Hospital where I was a patient until December 22, 1960, being treated for a broken right leg and an injured left leg as a result of the above accident. After being released from the Delaware Hospital, I entered the State Welfare Home and remained there until about April 15, 1961. I am a male, age 30 years and went to the seventh grade in school.

'While I was in the hospital, E. B. Caron, an insurance adjuster of Employers Liability Assurance Company came by and talked to me and left his car. In April, 1961, I went by Mr. Caron's office and I talked to a Mr. Francis X. Donohoe, an adjuster of Employers Liability Assurnace Company. Mr. Donohoe stated that they did not have to give me anything because of statements they had received from people but they would be willing to give me seven hundred dollars ($700.00) to help me out. I left Mr. Donohoe's office. About two weeks later, on May 2, 1961, Mr. Donohoe came to my home and told me that he had talked to his company and that they had agreed to give me nine hundred dollars ($900.00) to help me out and to put the file away. Mr. Donohoe again stated to me that they did not have to give me anything but wanted to help out. I reminded Mr. Donohoe of three thousand five hundred dollars ($3,500.00) in hospital expenses which I had told him about when I was in his office and he stated that they did not have anything to do with it and if I signed the paper (the Release) I could still sue if I wanted to. I signed the paper (the Release) without reading it and he wrote me a check for nine hundred dollars ($900.00). I signed the paper because Mr. Donohoe told me that they did not have to give me anything and only wanted to put the file away and that I could sue even after signed the paper (the Release).

'[s] Samuel H. Hicks

'Samuel H. Hicks'

This affidavit, I may observe, tended to serve the functions of a reply since it put the validity of the release in issue.

Defendant's reply brief was filed on June 4, 1962 and it too had an affidavit attached as an exhibit, made by one Francis X. Donohoe on June 4, 1962.

The essentials of the Donohoe affidavit appear below:

'1. That he is superintendent of The Employers' Liability Assurance Corporation, Ltd., Claim Department, in Wilmington, Delaware, said company being the insurer of Walter J. Soroka, the defendant in the above-entitled cause.

'2. That on or about April 14, 1961, the plaintiff, Samuel H. Hicks, visited his office at 447 Wilmington Trust Building, Wilmington, Delaware, to talk with him about an accident which occurred on October 15, 1960, in the southbound side of U. S. Route #13, north of the Hotel Rodney, New Castle County, Delaware.

'3. Hicks said that as a result of the accident, he had a bill from the Delaware Hospital, Wilmington, Delaware, of more than $3,000, plus loss of wages. Hicks stated that he felt he should be paid all of his medical expenses plus his loss of wages. Mr. Donohoe told Mr. Hicks that from the investigation completed by...