Meyer v. Murray

• Decision Date: 07 March 1979
• Docket Number: No. 78-980,78-980
• Citation: 26 Ill.Dec. 48,387 N.E.2d 878,70 Ill.App.3d 106
• Parties: , 26 Ill.Dec. 48 Anne MEYER, Jerrold Meyer, Richard Meyer, and Allen H. Meyer, Executors under the Last Will and Testament of Milton C. Meyer, Deceased, Plaintiffs- Appellants, v. George W. MURRAY and William Mangan, Defendants, Checker Taxi Company, Inc., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 878

387 N.E.2d 878

70 Ill.App.3d 106, 26 Ill.Dec. 48

Anne MEYER, Jerrold Meyer, Richard Meyer, and Allen H Meyer, Executors under the Last Will and Testament of Milton C. Meyer, Deceased Plaintiffs- Appellants, v. George W. MURRAY and William Mangan, Defendants Checker Taxi Company, Inc., Defendant-Appellee.

No. 78-980.

Appellate Court of Illinois, First District, Third Division.

March 7, 1979.

Rehearing Denied April 16, 1979.

Allen H. Meyer, Chicago, for plaintiffs-appellants.

Jesmer & Harris, Chicago (Julius Jesmer, Charles E. Tannen, Chicago, Allen Wiederer, Elgin, of counsel), for defendants-appellees.

RIZZI, Justice:

This action was brought to recover damages for the alleged wrongful death of Milton C. Meyer, who was a passenger in a Checker Taxi Company cab when it was struck by another automobile. The Checker Taxi Company, its driver, William Mangan, and the driver of the automobile, George W. Murray, were named as defendants. Defendant Checker Taxi Company filed a motion to dismiss, based on a covenant not to sue executed by the decedent, Milton C. Meyer. The trial court judge granted the motion and dismissed the action as to defendant, Checker Taxi Company. The suit remains pending as to the other defendants. The plaintiffs are appealing from the dismissal order and from the order denying their petition to vacate the dismissal order pursuant to Supreme Court Rule 304. We reverse and remand.

The accident occurred on July 20, 1977. The cab was proceeding in a southerly direction in the extreme left lane of traffic on Michigan Avenue near its intersection with Adams Street in Chicago, Illinois. The automobile being driven by George W. Murray was also proceeding in a southerly direction. The Murray automobile tried to pass the cab on the left side and went over the center line of Michigan Avenue. Murray "couldn't pass so he slowed and tried to get back into the left lane and as he did the right fender" of the Murray automobile "hit the left rear of the cab." (See Report of Accident by Milton Meyer, Infra.) At the time of the accident the cab was proceeding slowly. The accident happened about 8:15 A.M. The police arrived at the scene shortly thereafter.

After these events, Milton C. Meyer continued the trip to his office at 1303 South Michigan Avenue. He arrived at the office about 9:00 A.M. and worked for a few hours. During that time he was visited by a claims adjuster for the Checker Taxi Company. Milton C. Meyer then completed in his own handwriting and in his own words a document entitled, Report of Accident, which he signed and dated. He also executed a covenant not to sue the Checker Taxi Company or any of its agents or employees for damages or compensation as a result of the accident; he accepted a check for $250 in consideration for the covenant not to sue.

About noon, he apparently was not feeling well and went home. Later in the day he had a heart seizure and was taken to a hospital where he died that same day. The Medical Certificate of Death provides that he died from: (a) acute coronary thrombosis having an interval of minutes between onset and death; and, (b) arteriosclerotic heart disease having an interval of years between onset and death. He was 72 years old at the time of death.

The Report of Accident which was completed in the decedent's own writing states, Inter alia:

REPORT OF ACCIDENT

IN WHAT DIRECTION WAS CAB GOING? South APPROX. SPEED Slow IN WHAT DIRECTION WAS THE OTHER CAR GOING? South

WAS ANYONE INJURED? Yes WERE YOU INJURED? Yes WHOM DO YOU CONSIDER TO BLAME FOR THE ACCIDENT? Other Car

DESCRIBE ACCIDENT IN BRIEF IN YOUR OWN WORDS.

The cab was southbound on Michigan Ave. in the extreme left lane. A blue car tried to pass the cab on the left lane going over the center line. The other driver saw he couldn't pass, so he slowed and tried to get back into the left lane and as he did the right fender of the other car hit the left rear of the cab. I twisted my back in this accident. The above is true and correct.

SIGNATURE /s/ Milton Meyer

An estate was opened in August 1977, naming the plaintiffs as executors. On September 26, 1977, the check for $250 was returned to the defendant's representative accompanied by a letter from the plaintiffs' attorney stating that it was "unacceptable, being based upon a mistake as to the extent, character and permanency of the injuries." Subsequently, this law suit was filed.

Defendant Checker Taxi Company served and filed a Notice To Admit Facts pursuant to Supreme Court Rule 216 referring to a copy of the Report of Accident. The plaintiffs admit the document was completed and signed by the decedent. Defendant Checker Taxi Company also filed a motion to dismiss the action against it based upon the covenant not to sue executed by the decedent, Milton C. Meyer. The plaintiffs filed a motion to strike the motion to dismiss for the reason, allegedly, that the "covenant not to sue was entered into by plaintiffs' decedent under a mistake as to the extent, character and permanency of his injuries." In support of their motion, the plaintiffs filed the affidavit of Allen H. Meyer, who is one of the executors and plaintiffs as well as being the attorney representing all the plaintiffs in the law suit. They also filed the affidavit of a physician.

The affidavit of the physician states that he saw the decedent on the day of the occurrence for emergency medical attention from about 9:25 P.M. until the decedent's death one and one-half hours later. Also included in the affidavit is a statement that in his opinion the "stress and blunt trauma of the accident could have been immediately causal to either a myocardial infarction or rupture of aneurysm producing a cardiopulmonary arrest."

The trial court judge entered an order denying the plaintiffs' motion to strike and granted the Checker Taxi Company's motion to dismiss. Subsequently, the plaintiffs filed a petition to vacate the dismissal order. Alternatively, they requested leave to amend their affidavits or transfer of the case to the chancery division of the circuit court. The trial court judge denied the petition.

The question of setting aside releases or covenants not to sue based on a mistake of fact with respect to the nature and extent of the injuries has been the subject of many cases in Illinois, starting, apparently, with Munnis v. Northern Hotel Co., 237 Ill.App. 50 (1925). The latest reported case appears to be Kiest v. Schrawder, 56 Ill.App.3d 732, 14 Ill.Dec. 431, 372 N.E.2d 442 (1978). The cases on this subject are treated Sui generis and the rules governing releases from liability for non-personal injury torts or breaches of contracts do not apply. (Clancy v. Pacenti, 15 Ill.App.2d 171, 176, 145 N.E.2d 802, 805 (1957); Ruggles v. Selby, 25 Ill.App.2d 1, 16, 165 N.E.2d 733, 739 (1960).)

The cases hold that a release or covenant may be set aside under certain circumstances if the agreement was entered into through a mutual mistake of fact. (Martin v. PO-JO, Inc., 104 Ill.App.2d 462, 467, 244 N.E.2d 851, 854 (1969); Welsh v. Centa, 75 Ill.App.2d 305, 311, 312, 221 N.E.2d 106, 109 (1966).) Once the defendant establishes the existence of the document, legal and binding on its face, the burden shifts to the plaintiff to prove it invalid by clear and convincing evidence. (Blaylock v. Toledo, Peoria & Western R. R., 43 Ill.App.3d 35, 37, 1 Ill.Dec. 451, 453, 356 N.E.2d 639, 641 (1976); Welsh, 75 Ill.App.2d at 312, 221 N.E.2d at 110; Ogren v. Graves, 39 Ill.App.3d 620, 623, 350 N.E.2d 249, 251 (1976); Martin, 104 Ill.App.2d at 467, 244 N.E.2d at 854.) It is not the burden of the defendant to establish the absence of a mutual mistake of fact. (Blaylock,43 Ill.App.3d at 38, 1 Ill.Dec. at 454, 356 N.E.2d at 642.) The wording or form of the document, no matter how all-encompassing the language appears to be, will not preclude it from being set aside. (Reede v. Treat, 62 Ill.App.2d 120, 129, 210 N.E.2d 833, 838 (1965); Ruggles, 25 Ill.App.2d at 13, 165 N.E.2d at 739, 740.) Further, our courts do not distinguish between: (1) separate and distinct injuries which were not known or considered at the time the settlement was approved, and (2) known injuries resulting in unknown and unexpected consequences. (Scherer v. Ravenswood, 21 Ill.App.3d 637, 639, 640, 316 N.E.2d 98, 101 (1974).)

In order to avoid the document, the mistake must be mutual, material to the transaction, and affect its substance. (See Martin, 104 Ill.App.2d at 476, 244 N.E.2d at 854; Welsh, 75 Ill.App.2d at 311, 312, 221 N.E.2d at 109, 110; Fraser v. Glass, 311 Ill.App. 336, 342, 343, 35 N.E.2d 953, 956 (1941).) Accordingly, a unilateral or self-induced mistake is insufficient to set the document aside. ¹ (Martin, 104 Ill.App.2d at 467, 244 N.E.2d at 854; Welsh, 75 Ill.App.2d at 311, 312, 221 N.E.2d at 109; Ogren, 39 Ill.App.3d at 622, 350 N.E.2d at 251; Wascher v. Lundeen, 32 Ill.App.2d 239, 245, 177 N.E.2d 440, 443 (1961).) A mistake will not be considered self-induced if the plaintiff acted reasonably under all the circumstances of the case. (Reede, 62 Ill.App.2d at 131, 210 N.E.2d at 839; See also Fraser, 311 Ill.App. at 342, 343, 35 N.E.2d at 956.) Frequently, the defendant will blame the plaintiff or others for his mistaken belief. However, the source of the mistaken information upon which the defendant relied is not controlling upon the issue of whether the document should be set aside. (Reede, 62 Ill.App.2d at 131, 210 N.E.2d at 839; Ruggles, 25 Ill.App.2d at 20, 165 N.E.2d at 743.)

Over the years, a trend has developed to apply a doctrine of liberality with respect to setting aside settlement agreements which subsequently prove to be grossly unfair and unjust. (Ruggles, 25 Ill.App.2d at 12, 165 N.E.2d at 739; See Kiest v. Schrawder, 56 Ill.App.3d 732, 735, 14 Ill.Dec. 431, 432, 372 N.E.2d 442, 443 (1978).) This development has progressed to the stage where it recently has been stated that the ...