Oakley v. Duerbeck Co., 49359
| Decision Date | 08 April 1963 |
| Docket Number | No. 1,No. 49359,49359,1 |
| Citation | 366 S.W.2d 430 |
| Parties | Alvie OAKLEY, Plaintiff-Appellant, v. DUERBECK COMPANY, a Corporation, and Charles G. Duerbeck and Jessie F. Duerbeck, Defendants-Respondents |
| Court | Missouri Supreme Court |
Tom R. R. Ely, St. Louis, for plaintiff-appellant.
Moser, Marsalek, Carpenter, Cleary & Jaeckel, by G. W. Marsalek, St. Louis, for defendant-respondents.
This is an appeal to review the action of the Circuit Court of the City of St. Louis in entering a summary judgment against plaintiff-appellant in an action to recover $35,000 damages for personal injuries sustained when he fell on a common stairway on premises owned by the defendants-respondents.
Plaintiff Alvie Oakley alleged in his petition that he was a tenant of the defendants Duerbeck Company and Charles G. and Jessie F. Duerbeck at 4617 St. Ferdinand Avenue, St. Louis, Missouri; further, that on March 17, 1960, plaintiff fell down a common stairway on said premises; that the defendants failed to comply with provisions of the Building Code of the City of St. Louis, Missouri, in not providing hand-railings on the steps and in not having a gutter at the edge of the roof above the porch and stairway; that water dropped from the roof to the steps and froze; that plaintiff fell on the ice and was injured.
Defendants answered denying the claim of negligence and charged that plaintiff was guilty of contributory negligence; defendants alleged further that plaintiff, on April 26, 1960, compromised and settled his claim for damages against the defendants by accepting $1700 and signing a release which discharged the defendants.
Plaintiff filed a reply admitting having been paid $1700 but alleged 'that said $1,700.00 was not paid and accepted in full settlement of payment for the injuries sustained by plaintiff but was intended only as reimbursement of plaintiff's medical expenses, including doctor bill and hospital bill and nine weeks' lost earnings. Plaintiff, for further reply, states that both he and defendants were mutually mistaken as to the nature, character and extent of plaintiff's injuries; that plaintiff was informed by his doctor that he would be entirely well and his back entirely healed within eight or nine weeks and that plaintiff and defendants made said payment of $1,700.00 in reliance upon said opinion. Plaintiff further states that the amount paid was grossly inadequate and the execution of the release pleaded by defendants was based upon a mutual mistake in fact; that it developed that plaintiff was unable to return to work for a period of six months after the injury and that his injuries alleged herein developed and became apparent after the execution of said release. That plaintiff's medical expenses exceeded the amount allocated for same in said settlement and that he will have further medical expenses in the future.
Plaintiff's deposition was taken and the same was filed in the trial court; by stipulation the deposition was filed in this court.
Under the state of the record, defendants filed a motion for summary judgment. The trial court sustained the motion and entered judgment. Plaintiff appealed to this court.
Plaintiff claims that he and the defendants' agent in negotiating a settlement were laboring under a mutual mistake of fact as to the extent of the injuries plaintiff had sustained. Plaintiff claims the evidence was such that a jury could so find and therefore the trial court erred in entering a summary judgment.
The precise question before us is whether the trial court was justified in entering judgment against plaintiff. To determine this, we look to the evidence before us and if it appears that there is any evidence to sustain a finding that the parties entered into a settlement agreement under a mistake of fact, the judgment should not have been entered. See S.Ct. Rule 74.04(c) (h), V.A.M.R., and 49 C.J.S. Judgments Sec. 220, p. 388, and cases there cited.
Plaintiff's deposition with the evidence therein was before the trial court. In this deposition, plaintiff testified in detail as to the circumstances surrounding the settlement and the payment to him of $1700. Plaintiff's testimony was that a few days after he was injured and while in a hospital, Patrick E. Hickey, representing an insurance company, came to see him about plaintiff's fall; that Mr. Hickey informed him he was representing an insurance company; further, that plaintiff told Hickey that he did not have a lawyer and did not want a lawyer. 'If me and him could get together, that there would be no attorney represent me. He said, well, he wanted to know if I was worrying about my bills, and so forth. And, I said, 'At the present time, no.' He wanted to know something about my expenses, my ambulance bill, and my brace that I had on at the time. And, he said something about the * * * I don't know what you call it, reimburse some money on it, fix it some way where I wouldn't worry about it. He told me, 'When you get out of the hospital, you call me, and I don't want to worry you any more in the hospital.' At the time he said he didn't know that I had a fractured back.
Plaintiff was in the hospital about twenty days. Within a week after leaving the hospital, plaintiff called Mr. Hickey and in response thereto, Mr. Hickey went to plaintiff's house and renewed negotiations for a settlement. Plaintiff testified that Hickey went out on the porch and looked around, then came in and 'I said, 'Now, Mr. Hickey, I know you are an attorney, and I am just a dumb boy.' I said, 'You know whether you think I have got anything coming or not.' I said, 'I want to know what your opinion is to start with.' And, he wanted to know, he said, 'You don't have any lawyer?' I said, 'No.' And he said, 'Well, I will tell you this, Mr. Oakley:' He said, 'I will see * * * if you don't want to get an attorney, I will see that you are not out no money out of your pocket for expense.''
Plaintiff testified further that he and Hickey figured the total expense incurred by reason of plaintiff's injuries and the total came to about $1700 including lost time from work which was estimated to be about nine weeks. According to plaintiff, Hickey told him he would inform his company of a proposed settlement and if he obtained the authority, the matter would be settled on the basis of about $1700 being the total expense. The settlement was finally reached on the third visit of Mr. Hickey to plaintiff. Plaintiff testified that his doctor had told him he would be...
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