Myers v. Fecker Co., 46735

• Decision Date: 01 April 1977
• Docket Number: No. 46735,46735
• Citation: 252 N.W.2d 595,312 Minn. 469
• Parties: Kevin MYERS, a Minor, by Norman Myers and Mary Myers, His Parents and Natural Guardians, Petitioners, Appellants, v. FECKER COMPANY, et al., Respondents.
• Court: Minnesota Supreme Court

Page 595

252 N.W.2d 595

312 Minn. 469

Kevin MYERS, a Minor, by Norman Myers and Mary Myers, His Parents and Natural Guardians, Petitioners, Appellants, v. FECKER COMPANY, et al., Respondents.

No. 46735.

Supreme Court of Minnesota.

April 1, 1977.

Syllabus by the Court

Where petitioners, seeking to vacate a settlement entered into on behalf of their minor son and to avoid the accompanying releases, failed to sustain their burden of showing that the condition upon which they based their petition was an injury unknown to the parties at the time of the settlement rather than the unknown consequence of a known injury and that in agreeing to the settlement and executing releases covering all claims for unknown as well as known injuries they did not intend the releases to be final with respect to unknown injuries, the district court committed no error in denying their motion.

Willette, Kraft, Walser & Nelson and Paul A. Nelson, Olivia, Molter, Runchey & Louwagie, Marshall, for appellants.

Lasley, Gaughan, Reid & Stich and John F. Angell, Minneapolis, for respondents.

Heard before YETKA, SCOTT and WINTON, JJ., and considered and decided by the court en banc.

CRANE WINTON, Justice. ^*

This is an appeal from an order of the district court denying a petition to vacate an earlier order approving a settlement on behalf of a minor and to declare the settlement and releases executed in support of it null and void. Because this court agrees with the district court that petitioners have failed to present sufficient grounds to justify vacating the settlement and avoiding the releases, the district court order must be affirmed.

On November 4, 1960, Kevin Myers, who was then 28 months old, was struck by a truck owned by defendant Fecker Company and driven by defendant Marvin Bahn, and as a consequence he suffered extensive injuries including a crushed chest, abdomen, and pelvis, contusions of the left lung, and hemorrhaging in the area of the loin muscles. From those injuries Dr. John G. Lohmann, the attending physician, stated in an affidavit dated May 1, 1961, that Kevin made a "miraculous recovery." Dr. Lohmann in the same affidavit further stated that Kevin had no permanent disability but that he had referred the boy to a neurologist for an evaluation of residual brain damage. In an affidavit dated April 28, 1961, Dr. G. W. Smith, the neurologist, stated that he could "identify no specific evidence of neurological residual." He did indicate in his affidavit, however, that Kevin's family had noted that he had "a tendency to swing the right foot a little as he gets tired" and that he also "tends to have some soreness of the right leg, * * * primarily in the right thigh, if he plays hard."

In April and May 1961, some 5 months after the date of his injuries, Kevin's parents entered settlement negotiations with representatives of respondents' automobile insurer. Those discussions resulted in an agreement to accept $5,200 in settlement of all claims. ¹ Because Kevin's parents had not retained counsel to represent them in the settlement negotiations, the lawyer representing respondents and their insurer retained independent counsel to represent them in court at the hearing on the petition for approval of the settlement which was held as required by Minn.St. 540.08.

At the hearing both parents affirmed that they realized no further claims could be made by reason of Kevin's injuries. The court then approved the settlement by an order dated May 9, 1961, which authorized and directed Kevin's parents to accept $5,200 "in full settlement and release of all claims, demands, actions and causes of actions, and/or suits of any kind in behalf of said minor, Kevin Myers, resulting from or in any way connected with the accident referred to."

Pursuant to the court's order, Norman and Mary Myers executed a release and indemnity agreement, which after the preambles provided:

"NOW THEREFORE, in consideration of the sum of Five Thousand Two Hundred and No/100 ($5,200.00) Dollars, paid to us in our individual capacities and as parents and natural guardians of Kevin Myers, a minor, by Fecker Company and Marvin Bahn and The Lumbermans Mutual Casualty Company of Chicago, Illinois, in compromise and settlement of said claim and of all liability of said Fecker Company and Marvin Bahn in connection with the premises, we, Norman Myers and Mary Myers, in our individual capacities and as parents and natural guardians of Kevin Myers, a minor, do release and forever discharge Fecker Company and Marvin Bahn and The Lumbermans Mutual Casualty Company of Chicago, Illinois, of and from all claims, demands, actions or causes of action whatsoever including all as such have been, now are, or hereinafter might be connected with or based upon injuries sustained by said minor, Kevin Myers, and/or ourselves, in any act of negligence or otherwise of said Fecker Company and Marvin Bahn in connection therewith.

"The undersigned Norman Myers and Mary Myers, further declare that the terms of the settlement are fully understood and voluntarily accepted for the purpose of making full and final compromise, adjustment and settlement of any and all claims, disputed or otherwise, on account of injuries, known or unknown, and damages herein mentioned.

"For the consideration aforesaid, the undersigned hereby stipulate and agree to hold harmless and indemnify the said releasees from any and all claims and action, which may at any time hereinafter be made or instituted against them for the purpose of enforcing any claim for or on behalf of said minor for damages resulting from or in any way arising out of said accident, including the cost of defense in such action or actions.

"This release is executed by the undersigned in our individual capacities and intended to cover any and all loss of services and damage of any kind sustained by us personally and as parents and natural guardians of Kevin Myers, a minor, pursuant to the Order of the District Court of Lyon County, dated the 9th day of May, 1961, made after a petition was filed by the undersigned with said Court setting forth the injuries and damage directing the undersigned to execute said release in accordance with the terms and conditions set forth in the petition and Order of this Court.

"Dated this 9th day of May, 1961, at Windom, Minnesota.

"/s/ NORMAN MYERS

(In my individual capacity and as parent (father) and natural guardian of Kevin Myers, a minor.)

"/s/ MARY MYERS

(In my individual capacity and as parent (mother) and natural guardian of Kevin Myers, a minor.)

"IN PRESENCE OF:

/s/ R. T. RODENBERG

/s/ J. C. WILTROUT"

They also executed a second release dated May 9, 1961, which stated:

"We, Norman Myers and Mary Myers, in our individual capacities and as parents and natural guardians of Kevin Myers, a minor, in consideration of Five Thousand Two Hundred and No/100 ($5,200.00) Dollars, receipt of which is hereby acknowledged and pursuant to Order of the District Court dated May 9, 1961, hereby release and forever discharge Fecker Company and Marvin Bahn from all claims, demands, actions and suits by reason of any damage, loss or injury known or unknown, which heretofore has been or hereafter may be sustained by us or by said minor on account of an accident on or about the 4th day of November, 1960, at or near North Hiawatha Street, Pipestone, Minnesota. We understand that part of the above consideration is for unknown injuries and damages that may appear in the future.

"As a further consideration for the above payment we hereby agree to indemnify and protect from all damage and expense the said Fecker Company and Marvin Bahn in the event of any claim by or on behalf of said minor, for injuries or damages arising or growing out of said accident.

"IN WITNESS WHEREOF, We now set our hands this 9th day of May, 1961.

"/s/ NORMAN MYERS

"/s/ MARY MYERS

"IN PRESENCE OF:

/s/ R. T. RODENBERG

/s/ J. C. WILTROUT"

In her affidavit filed in support of the motion to vacate the order approving the settlement, Kevin's stepmother, Faye Myers, who had married Kevin's father on November 1, 1969, testified that she had not been aware of Kevin's involvement in an accident in November 1960. She also testified that when he was in the eighth grade, she "noticed that he did not pick his feet up when walking; he tended to drag the feet on the ground as the step of an old man." Kevin then, she said, would make an effort to correct the way he walked. She further stated that in 1971 Kevin complained of hip pain when playing football and received medical advice to discontinue football that fall. In 1972, Faye Myers observed that Kevin's...