Nelson v. Browning

• Decision Date: 14 June 1965
• Docket Number: No. 1,No. 50744,50744,1
• Citation: 391 S.W.2d 881
• Parties: Mary Ann NELSON, Appellant, v. Gilbert Absolom BROWNING, Respondent
• Court: Missouri Supreme Court

Page 881

391 S.W.2d 881

Mary Ann NELSON, Appellant, v. Gilbert Absolom BROWNING, Respondent.

No. 50744.

Supreme Court of Missouri, Division No. 1.

June 14, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 12, 1965.

Schwartz, Schwartz & Gilden, St. Louis, for appellant.

Hyde, Purcell & Wilhoit, Poplar Bluff, for respondent.

HOUSER, Commissioner.

Action for $50,000 damages for loss of services, society, comfort and consortium of her husband, Erskine Mike Nelson. Plaintiff has appealed from an order sustaining defendant's motion for summary judgment.

On April 20, 1962 plaintiff filed a petition in the Circuit Court of Butler County, Missouri charging that on June 4, 1956 defendant negligently caused a collision between defendant's truck and plaintiff's husband's vehicle resulting in the loss of plaintiff's husband's left arm and other personal injuries to him which caused him to develop a severe anxiety state producing headaches, nausea, dizziness, nervousness, an inferiority complex; that as a consequence plaintiff's husband has been disabled and restricted in his normal activities and pursuits and kept from enjoying life as a normal person, thereby depriving plaintiff permanently of the services, society, comfort and consortium of her husband.

On May 10, 1963 defendant filed a motion to dismiss plaintiff's petition on the ground that on June 4, 1956 there was no cause of action in favor of a wife for loss of services, etc. of her husband, and that plaintiff's cause of action is barred by limitations. The court did not act on the motion to dismiss.

On May 10, 1963 defendant filed a motion for summary judgment, alleging that there was no genuine issue as to any material fact; that under Civil Rule 74.04, V.A.M.R. defendant was entitled to a judgment as a matter of law; that female residents of the State of Arkansas attain their majority at age of 18 years and may execute a valid release; that plaintiff signed and executed a valid and binding release of all claims arising out of this accident, including her claim for loss of services. A copy of the release was attached to the motion for summary judgment. Defendant alleged that he was entitled to have judgment directed in his favor by reason of the execution of the release and for the further reason that 'more than five years have passed since the removal of disabilities of minority by operation of law of the State of Arkansas and the commencement of this action.' The release, dated October 11, 1956, recited a consideration of $1.00 and other good and valuable considerations. It was a general release by plaintiff of any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action, arising from any previous act or occurrence and particularly on account of all loss or damages of any kind in consequence of the accident of June 4, 1956. It further recited that Mary Ann Nelson was 'more than 19 years of age' and that in it she agreed that 'this compromise settlement' should apply 'to all unknown and unanticipated injuries and damages' resulting from the accident as well as to those then disclosed, and that 'said payment and settlement in compromise is made to terminate further controversy respecting all claims for damages' theretofore asserted or which might thereafter be asserted because of the accident.

Plaintiff filed an 'Answer to Motion for Summary Judgment,' alleging that there were several distinct material issues of fact, as shown by an accompanying affidavit which was incorporated in plaintiff's 'answer'; that plaintiff was entitled to have said issues tried 'as part of plaintiff's entire case' and that there was no basis in law for the rendition of summary judgment.

Plaintiff's affidavit in opposition to defendant's motion for summary judgment stated that she was uncertain whether she did in fact execute the 'purported' release but that if she did it was obtained from her without her receiving any consideration that she complied with the request of defendant and his insuror that she execute the release, upon their representations that inasmuch as she had not and was not making any claim for injuries to her own person her signature to the release 'would be merely a matter of form to which she should have no objection'; that at no time was mention made of any possible claim she might assert for loss of services of her husband; that if she executed the release she did not understand from its language that she was releasing any such claim nor was it intended by her or the other parties to the release that it embrace any such claim, but that the whole purpose of the release was to definitely establish in writing that she was not making any claim for injuries to her own person; that except for her reliance on these representations and her understanding of the aforesaid purpose of the release she would not have signed it, because she never intended to release the claim which is the subject of this action; that in fact it was not known, understood or contemplated by any of the parties that as a wife she had any right to assert a claim or collect damages for loss of services of her husband.

Defendant filed no answer to the plaintiff's petition; no affidavit or affidavits in support of his motion for summary judgment, in opposition to plaintiff's 'Answer to Motion for Summary Judgment,' or in opposition to plaintiff's affidavit.

At the hearing on the motion for summary judgment the following was introduced in evidence, pursuant to a stipulation of the parties: a verified copy of the petition of plaintiff's husband for the removal of his disabilities of minority; the transcript of the proceedings in that matter in the Circuit Court of Randolph County,...