Martin v. Po-Jo, Inc.
| Decision Date | 30 January 1969 |
| Docket Number | Gen. No. 68--117,INC,PO-J |
| Citation | 244 N.E.2d 851,104 Ill.App.2d 462 |
| Parties | Josephine MARTIN, Plaintiff-Appellant, v., a corporation, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
John R. Snively, Rockford, for plaintiff-appellant.
Robert K. Clark, Rockford, for defendant-appellee.
Plaintiff appeals from a final judgment order granting defendant's motion to dismiss its complaint for personal injuries based on negligence.The motion to dismiss was pursuant to the material portions of Ill.Rev.Stats., 1967, Chap. 110, Sec. 48.1
The single issue raised is whether the pleadings disclose a material and genuine disputed question of fact.
The complaint alleges in substance that on January 8th, 1966, plaintiff entered defendant's store to purchase foodstuffs, and while there, due to defendant's negligence, she sustained injury to her person.A jury demand was filed.Defendant filed a motion to dismiss, alleging in substance that heretofore and prior to June 15th, 1966, the plaintiff was represented in the cause of action by a certain Rockford law firm; that on May 23rd, 1966, a member of said firm wrote to the defendant's representative and advised that he was authorized to settle the claim of the plaintiff for the sum of $1,000; that on or about May 27th, 1966, the defendant, through its representative, settled plaintiff's claim for that sum and submitted a release to the attorneys representing her; that on June 16th, 1966, defendant's representative received a letter from a member of the Rockford law firm returning the release executed and witnessed by the sender and another person; that the letter further requested payment of the sum of $1,000; that the defendant, on or about June 21st, 1966, forwarded a draft in the required sum and that said draft has been presented for payment and has been paid to plaintiff and her attorneys.A copy of the full release and a copy of the settlement draft endorsed by the plaintiff, together with the affidavit of Robert J. Lester, the representative referred to in the motion, were attached.The affidavit of Lester states in substance that he personally acted as a representative for the defendant and the American Hardware Mutual Insurance Company of Minneapolis, Minnesota, in the settlement of the plaintiff's claim; that of his own personal knowledge plaintiff retained the law firm of Pedderson, Menzimer, Conde & Stoner of Rockford to represent her interests in the matters in suit; that on May 23rd, 1966, he received a letter from attorney Harold Stern, of said firm, advising that said firm had been authorized to settle the claim of plaintiff for the sum of $1,000; that on or about May 27th, 1966, he personally settled the case with her attorneys and duly authorized agents for the sum of $1,000 and on or about said date submitted a release to attorney Stern for Execution by the plaintiff; that on or about June 16th, 1966, he received a letter from attorney Pedderson, one of plaintiff's attorneys, returning the release witnessed by him and by one Harriet E. Heath and requesting payment of the $1,000; that pursuant to said request he did, on or about June 21st, 1966, deliver the Insurance Company draft to plaintiff's attorneys and states that said draft has been presented for payment and the sum of $1,000 has been paid to plaintiff and her attorneys; and further states that if he were called as a witness he can testify competently to all of the foregoing being based upon his personal knowledge.
Thereupon plaintiff, through the attorney on this appeal, who was also her attorney who filed the complaint on her behalf, filed a Motion to Strike the Motion to Dismiss as substantially insufficient in law.The court below denied the Motion to Strike and granted plaintiff leave to file counter affidavits.Thereupon plaintiff filed her affidavit alleging that she is 72 years of age; that she was injured in an accident in the store of defendant on January 6, 1966; that while she was a patient in the Rockford Memorial Hospital, she was visited by one Robert J. Lester, a claim adjuster with wide experience, who talked with her relative to the accident; that she was discharged from the hospital on February 4th, 1966; that shortly thereafter the adjuster came to her home and presented a settlement draft for $500 which she refused; that at the suggestion of a neighbor she wought advice from C. A. Pedderson who came to her home, talked with her relative to the accident and her injuries, and that she told him she had a fractured hip; that Mr. Pedderson returned a second time accompanied by Harold Stern and talked with her again relative to the accident and her injuries and told her he would try to get her more money; that he wrote her on May 12th, 1966, that it looked as though the maximum that he would be able to get for her was $1,000, that he wrote her on May 24th, 1966, that he was not even sure that he could get that amount; that thereafter a purported release was submitted to her by Harold Stern which she believes was prepared by the adjuster, that he did not request her to read it, nor did he explain or read its contents, that she was ignorant of the same and of the consequences of the execution thereof, and that it appears that it was executed in the presence of certain persons whose names appear thereon, but they were not present; that she had not been discharged by her physician, and that her injuries were not stabilized and the full extent thereof could not be determined at that time; that there was a mutual mistake between her, the adjuster, the insurance company, and C. A. Pedderson, who purported to represent her, as to the nature and extent of her injuries, and that the parties, including the affiant, were not aware that her hip had been replaced with a 'plastic hip'; that she was in necessitous circumstances; that she was induced to agree to accept a sum which was unconscionable in relation to the liability and gravity of her injuries, and that duress and coercion were used in the procurement of the purported release; that the consideration alone was grossly inadequate; that she did not receive any consideration for the purported release, nor did she receive the proceeds of any draft, that she has no recollection of signing any draft if any draft was in fact issued, and that she did not receive any money; that the purported release was secured by Mistake, misrepresentation or fraud, and that she hereby repudiates, rescinds and cancels the same.She states that if sworn as a witness she could testify...
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