Nelson v. Browning

Decision Date14 June 1965
Docket NumberNo. 1,No. 50743,50743,1
Citation391 S.W.2d 873
PartiesErskine Mike NELSON, Appellant, v. Gilbert Absolom BROWNING, Respondent
CourtMissouri Supreme Court

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

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

HOUSER, Commissioner.

Action for $100,000 damages for personal injuries. Plaintiff has appealed from an order sustaining defendant's motion for summary judgment.

On February 11, 1963 plaintiff filed a petition in the Circuit Court of Butler County, Missouri charging defendant with negligently causing a collision between defendant's truck and plaintiff's vehicle resulting in the loss of plaintiff's left arm and other personal injuries to plaintiff. The collision referred to occurred on June 4, 1956 at which time plaintiff lacked about one month of having attained the age of 19 years.

On March 5, 1963 defendant filed an answer in which he denied the charges of negligence, pleaded contributory negligence, and further pleaded in bar that on October 11, 1956 plaintiff executed a release for $10,500, following statutory proceedings in the Circuit Court of Randolph County, Arkansas for the removal of plaintiff's disabilities as a minor. 1

On March 5, 1963 defendant filed a motion to dismiss plaintiff's petition on the ground that more than 5 years had elapsed since the removal of plaintiff's disabilities and therefore the action is barred by limitations, and that plaintiff's petition did not state sufficient grounds upon which relief could be granted. The court did not act on the motion to dismiss.

On the same day defendant filed a motion for summary judgment, alleging that there were no genuine issues as to any material fact; that under Civil Rule 74.04, V.A.M.R. defendant was entitled to a summary judgment in his favor as a matter of law. Incorporated by reference were a copy of plaintiff's petition for removal of disabilities of minority; a transcript of the hearing therein in the Arkansas court; a copy of the order removing plaintiff's said disabilities and a copy of a release signed by plaintiff. Defendant asked for summary judgment on two grounds: (1) that the transcript, petition, order and release disclose that more than 5 years had passed since the removal of plaintiff's disabilities of minority and before this suit was instituted, and (2) that after the removal of his disabilities as a minor plaintiff, in consideration of the payment of $10,500, had executed a binding release of all claims against defendant arising out of the facts alleged in plaintiff's petition.

Plaintiff filed a reply to the answer, and an 'Answer to Defendant's Motion for Summary Judgment.'

Plaintiff's reply alleged that in order to obtain the purported release defendant and defendant's insuror, representatives and attorneys represented to plaintiff that defendant was insolvent and that a judgment against him over the amount of his indemnity insurance coverage (maximum limits $15,000) would be uncollectible; that $10,500 was the maximum amount plaintiff could possibly collect on his claim; that the only means to legally effect a settlement, in view of plaintiff's minority, would be through proceedings in an Arkansas court to have his legal disabilities as a minor removed so that he could execute a valid and binding release; that on June 4, 1956 plaintiff was an actual and legal resident of the City of St. Louis, Missouri; that although following his injury plaintiff and his wife stayed temporarily at the home of relatives in Arkansas, his Missouri residence was not given up and he was not in fact or in law a resident of Arkansas at the time he instituted the proceedings in the Arkansas court. Plaintiff alleged that the Arkansas court was without jurisdiction over the subject matter because plaintiff was not a resident of Arkansas or a resident of Randolph County at the time the proceedings were instituted, and that the petition for removal of disabilities was not verified. Plaintiff's reply further alleged that the foregoing representations were false, and made with knowledge of their falsity or in reckless disregard whether true or false; that in fact defendant was solvent and that a judgment in a sum substantially larger than $10,500 would have been collectible; that defendant's insurance coverage was in excess of $15,000; that the removal of the disabilities of minority was not the only legal method by which a settlement with plaintiff as a minor could have been effected; that there was then a method in Arkansas similar to that prevailing in Missouri, by which a minor could effect a legal settlement in a proceeding by next friend in which the court would make full inquiry into all the facts and circumstances surrounding the claim, and the amount of the proposed settlement, to determine whether it was fair and reasonable and in the minor's best interest; that to avoid this inquiry and determination by the court defendant, his insuror, etc., fearing that no court would approve the proposed settlement as fair, and knowing of these applicable Arkansas laws, resorted to the device of removal of disabilities of minority for the sole purpose of accomplishing the settlement for $10,500, which was far less than the amount to which plaintiff was entitled; that but for these false and fraudulent representations he would not have consented to these proceedings; that duress was practiced upon him and that he acted only in full reliance on these representations.

There is nothing of record to show that plaintiff, upon repudiation of the release, restored the $10,500 or tendered that amount before the institution of this lawsuit or before the filing of his reply, or at any other time. Neither in his brief nor in oral argument did plaintiff contend that he made a tender, or seek in any way to excuse his failure to restore of offer to restore the fruits of the settlement. Furthermore, there is nothing in this record to show whether at the time plaintiff became 21 years of age he was still in possession of the money received in settlement, or whether he had spent, wasted and dissipated the funds received.

Plaintiff's 'Answer to Defendant's Motion for Summary Judgment' alleged that 'there is a genuine dispute beween the parties as to certain issues of fact, as more fully set forth in plaintiff's reply herein filed,' copy of which was made a part of the answer. In support of his 'answer' plaintiff filed a 14-page affidavit setting forth in greater detail the facts alleged in plaintiff's reply. Plaintiff alleged that the affidavit showed the existence of disputed factual issues making trial necessary and summary judgment 'wholly unwarranted.'

Defendant filed no affidavit or affidavits in support of his motion for summary judgment or in opposition to plaintiff's 'answer' and supporting 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 for the removal of his disabilities of minority; the transcript of the proceedings in that matter in the Circuit Court of Randolph County, Arkansas; the decree and order of that court removing said disabilities; the releases executed by plaintiff and his wife; the procedural statute of Arkansas enabling circuit courts to authorize any male person who is a resident of the county and above the age of 18 years power to transact business in general in like manner and effect as if done by one who had attained his majority; the Arkansas statute defining minors as males of the age of 21 and females of the age of 18 years; and copies of proceedings for the correction of a date in the Arkansas judgment.

Following its rendition plaintiff filed a motion to set aside the summary judgment or in the alternative for a new trial. When that was overruled plaintiff appealed.

The question for decision is whether the court erred in rendering summary judgment for defendant. Are there pleadings, depositions, admissions on file, or affidavits which show that there is no genuine issue as to any material fact and that defendant is entitled to a summary judgment as a matter of law; has it been shown by unassailable proof that defendant is entitled thereto? Civil Rule 74.04, (c), (h).

Plaintiff's only point on this appeal--that the court erred in rendering summary judgment for detendant--is based upon these contentions: that the record, pleadings, exhibits and affidavits do not show unassailably as a matter of law that movant was entitled to summary judgment; that there are many undetermined issues of fact (whether the release was fraudulently procured by false representations of defendant's insolvency and the uncollectibility of any judgment beyond $15,000; whether it was represented to plaintiff that the proceedings in Arkansas for the removal of his disabilities was the only method of legally effecting a settlement; whether plaintiff was a resident of Missouri or Arkansas when the proceedings were instituted); that the proceedings in Arkansas were not effective in this state; that the Arkansas court had no jurisdiction over plaintiff, a resident of Missouri; that the Arkansas judgment was fraudulently procured; that the court did not make the full inquiry necessary to protect the interests of a minor; that the release was procured by fraud, and that the action is not barred by limitations.

The burden is on the moving party, the defendant in this case, to establish the nonexistence of a material fact. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; Sprague v. Vogt, 8 Cir., 150 F.2d 795; Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188.

Defendant's first point is that plaintiff having made no tender of, or offer to tender, the $10,500 which he received when he signed the release, the allegations of his reply charging...

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34 cases
  • Pagan v. City of Kennett
    • United States
    • Missouri Court of Appeals
    • April 2, 1968
    ...in this instance upon defendant, to show by 'unassailable proof' (Rule 74.04(h)) that there is no genuine issue of fact (Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Clampett, Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter o......
  • Fleming v. U.S. Postal Service AMF O'Hare
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    • June 16, 1994
    ...was fraudulently executed and therefore void, Haller v. Borror Corp., 50 Ohio St.3d 10, 552 N.E.2d 207, 210-11 (1990); Nelson v. Browning, 391 S.W.2d 873, 877 (Mo.1965)) is a little obscure to us. Of course a worker who has executed a void release should not be barred from challenging it by......
  • Schoene v. Hickam, S-T
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    ...bearing upon the execution and validity of a contract are determined by the law of the place where the contract is made. Nelson v. Browning, Mo.Sup., 391 S.W.2d 873; James v. Hiller, 85 Ariz. 40, 330 P.2d 999; Tanenbaum v. Sylvan Builders, Inc., 29 N.J. 63, 148 A.2d 176; 16 Am.Jur.2d Confli......
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    ...in this instance upon plaintiff, to show by 'unassailable proof' (Rule 74.04(h)) that there is no genuine issue of fact (Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Clampett, Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter o......
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