Kestner v. Jakobe

• Decision Date: 16 September 1969
• Docket Number: No. 8855,8855
• Citation: 446 S.W.2d 188
• Parties: Mary E. KESTNER, Plaintiff-Respondent, and Bailey Kestner, Plaintiff, v. Lucy Shepard JAKOBE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 188

446 S.W.2d 188

Mary E. KESTNER, Plaintiff-Respondent and Bailey Kestner, Plaintiff, v. Lucy Shepard JAKOBE, Defendant-Appellant.

No. 8855.

Springfield Court of Appeals, Missouri.

Sept. 16, 1969.

Albert C. Lowes, Kenneth L. Waldron, Buerkle & Lowes, Jackson, for defendant-appellant.

C. H. Parsons, Jr., Dexter, for plaintiff-respondent.

HOGAN, Presiding Judge.

This is a second appeal. Plaintiff Mary Kestner sustained personal injuries when the automobile in which she was riding collided with another being driven by defendant Lucy Jakobe. Plaintiffs sued both the host driver, a Mr. John Litzler, and Mrs. Jakobe, but dismissed as to defendant Litzler before trial. A jury found against plaintiff Bailey Kestner on his claim for medical expenses and loss of services, but found for Mrs. Kestner on her claim for personal injuries and awarded her the sum of $3,449.00 as damages.

Defendant Jakobe appealed. Among other things, she argued that the release which plaintiff Mary Kestner and her husband gave Mr. Litzler five days after the accident operated as a complete bar to this action. Plaintiffs admitted execution of the release but sought to avoid it as a bar on the ground that it was procured by fraudulent representation. Plaintiffs were prevented by the trial court from developing any issue concerning the validity of the release. Upon review of the record, this court held: (1) that on its face and upon the record presented, the release in question operated as a discharge of the whole cause of action, and not merely as a release of one joint tort-feasor; (2) that if the release had been procured by fraudulent representation, it was either void or voidable, depending on the nature of the fraud; (3) that plaintiffs were entitled to have the wrongful procurement of the release submitted to the jury along with all other issues in the case, a general verdict being rendered on all issues; (4) that since the trial court had, by an erroneous ruling, prevented a full development of the case on its merits, the cause should be reversed and remanded generally as to plaintiff Mary Kestner. We noted that plaintiff Bailey Kestner had not appealed, and ordered that the judgment against him be held in abeyance pending retrial. We further ordered that upon retrial the court enter a judgment compatible with a verdict returned on the issues, and determining the cause in favor of defendant Jakobe and against plaintiff Bailey Kestner. Kestner v. Jakobe, Mo.App., 412 S.W.2d 205.

On remand, the cause was transferred on change of venue, see State ex rel. Jakobe v. Billings, Mo., 421 S.W.2d 16, and was fully relitigated. The second trial was a trial to the court without the aid of a jury, as provided by Rule 73.01, V.A.M.R. (Section 510.310, R.S.Mo (1959)). With one exception which we shall note further in the course of the opinion, the pleadings remained the same. Plaintiff Bailey Kestner died before the case came to trial a second time. Upon the suggestion of his death, his cause of action was dismissed, without any immediate objection by defendant Jakobe. No findings of fact were requested and none were made; the trial court made a general finding for plaintiff Mary Kestner and against defendant Lucy Jakobe, in the amount of $2,750.00. Defendant Jakobe has not appealed from the adjudication that she is liable, but she has meticulously briefed some six assignments of error dealing with the trial court's implied finding that the release did not discharge her from liability. The principal question for review is whether or not the plaintiff's evidence was sufficient to show that the release was procured by fraud. This necessitates at least a general review of the facts.

The accident occurred on Saturday, February 13, 1965. Mr. and Mrs. Kestner were passengers in Mr. Litzler's car, traveling south on Highway 25 near Malden, Missouri. Mrs. Jakobe was going north and she attempted to turn left in front of the Litzler vehicle in order to enter a private driveway on the west side of the road. The two vehicles collided. Mrs. Kestner sustained injuries when she struck her head on the rearview mirror.

On Tuesday, February 18, a lay adjuster representing Mr. Litzler's insurance carrier called on the Kestners. The adjuster, a Mr. Grimes, discussed the accident and, according to his testimony, the extent of the Kestners' injuries with them at that time. The release in question, which is set out in full in our earlier opinion, was then executed, and the plaintiffs were given a draft in the amount of $50.00.

Several different versions of the conversation between Mr. Grimes and the Kestners were given. Mr. Litzler's testimony was that he had sat in the room with Mr. Grimes and the Kestners, and had heard all that was said. Mr. Litzler's recollection was that Mr. Grimes had asked some questions about the manner in which the accident occurred, and Mrs. Kestner mentioned that her glasses had been broken. Grimes asked to see the glasses and inquired how much they had cost. Mrs. Kestner was not sure, but as she recalled they had cost either $45.00 or $47.50. Mr. Grimes then made out a draft for $50.00 and filled in some additional documents for the Kestners' signatures. Litzler asked no questions about the effect of the release, but as Grimes put 'the papers' in his briefcase and started out the door, he said, 'I guess you know that releases you and they (the Kestners) can't sue you.'

Mrs. Kestner, 52 years old at the time she signed the release, testified that she had only a third grade education. Mr. Grimes came to her house, she said, a 'few days after the accident.' Mr. Grimes 'talked to us some,' and she signed some papers while he was there. Mrs. Kestner did not know what she was signing, but she thought the payment 'was only for the glasses.' Mr. Grimes did not read the release to her, she did not look it over, and neither did Mr. Litzler. Mrs. Kestner believed Mr. Grimes when he said the payment was only for her glasses, but after she had signed the release, Mr. Grimes 'turned around and said to me 'I guess you know you can't sue Mr. Litzler. '"' Mrs. Kestner did testify that Mr. Grimes had said 'it left five hundred dollars medical care open for a year.'

Mrs. Kestner was shown the release. She identified her signature at the bottom of the page. She stated that she had not asked to have the release read, but had just '* * * taken his (Grimes') honesty for it and his word.' Being asked if she could read the words 'Release of All Claims' across the top of the paper, she answered that she could see the letters but could not read them. Mrs. Kestner stated a number of times that she would not have signed the release had she known it was a release.

Parts of a pretrial deposition given by Mrs. Kestner were put in evidence by defendant Jakobe. It is appropriate to set forth some of the questions and answers verbatim, particularly those concerning the execution of the release.

'Q. Did Mr. Grimes also tell you that Mr. Litzler had on his policy $500.00 or some such coverage to pay your medical bills that you incurred up to the amount of the policy for a period of one year?

A. After we signed the papers and all he said, 'This leaves the medical pay open and this releases Mr. Litzler,' and I believe also leaves $500.00 for medical bills.

Q. And that was all right with you at the time?

A. Yes, because I didn't know I was going to have these severe headaches and all, and I didn't--well, I actually didn't know anything about it.

Q. Do I understand you, Mrs. Kestner, you felt that you weren't hurt as severely as you now believe you're hurt?

A. That's right, I was having headaches and I thought maybe, naturally, the lick on my head--

Q. It would go away in a few days?

A. That's right, and I was sore and stiff, I was just sore and stove up all over, and I thought it would just be a matter of time, yes.

Q. Did Mr. Grimes tell you anything at all or did you discuss with Mr. Grimes anything at all about any other claim you might have?

A. No.

Q. You didn't discuss it?

A. He just went and got that and wrote out the check and brought in some papers and all and asked me to sign them, he didn't read them and I didn't read them, and he didn't say anything. Of course, I couldn't have read it and understood it, there might have been some words on there I could have made out, but he didn't give us any understanding on what we were signing at all, other than for the glasses.

Q. In other words, you're saying, if I understand you, Mrs. Kestner, that nothing was said about Mrs. Jakobe, the other gal in the car?

A. No, no, that's right.

Q. One other question. Could you hear Mr. Grimes testifying this morning from where you sat, 10 or 15 feet across the room?

A. I could hear him, yes.

Q. Anything at all about his testimony that you say wasn't true?

A. When he said he told us it released Mr. Litzler before I signed the papers, that wasn't true.'

The defendant also introduced a deposition given by Mr. Grimes. At the time the release was executed, Mr. Grimes was a lay claims adjuster, 25 years of age, who had been working at his job about six months. When he gave his deposition, Mr. Grimes testified that he considered his integrity was being questioned; consequently, his answers to counsel's relatively simple questions tended to be profuse and repetitive, a sort of attempt to 'explain the whole thing' with every answer. In substance, Mr. Grimes testified that after the accident occurred, he discussed it with Mr. Litzler, and '* * * from what he (Litzler) told me I felt that primary liability--in fact, all liability would rest with the third party.' Mr. Grimes was 'naturally' interested in having Mr. Litzler released, since, as he put it, '* * * that was my job at the time.' In company with Mr. Litzler, Mr. Grimes called on the Kestners. Grimes doubted that the Kestners would be able to read and interpret a release, and explained to them that he 'was there on...