Rasmussen v. Freehling

• Citation: 159 Colo. 414,412 P.2d 217
• Decision Date: 21 March 1966
• Docket Number: No. 20682,20682
• Parties: Lawrence A. RASMUSSEN and Ethel Mae Rasmussen, Plaintiffs in Error, v. Alexander FREEHLING, Jr., Defendant in Error.
• Court: Supreme Court of Colorado

Page 217

412 P.2d 217

159 Colo. 414

Lawrence A. RASMUSSEN and Ethel Mae Rasmussen, Plaintiffs in Error, v. Alexander FREEHLING, Jr., Defendant in Error.

No. 20682.

Supreme Court of Colorado, In Department.

March 21, 1966.

Wood, Ris & Hames, Thomas T. Crumpacker, Denver, Gerald W. Bennett, Colorado Springs, for plaintiffs in error.

Raymond Duitch, Colorado Springs, for defendant in error.

FRANTZ, Justice.

The Rasmussens are before this court claiming that the district court erred in entering a judgment of dismissal in favor of Freehling, solely on the pleadings. Specifically at issue is whether a release obtained by an alleged misrepresentation of Freehling's attorney as to the contents and legal effect of the document placed before the Rasmussens is a complete defense to their claim.

This suit grew out of an automobile collision on November 24, 1957 between vehicles driven by Mr. Rasmussen and Mr. Freehling in which the Rasmussen automobile was damaged and Mrs. Rasmussen, a passenger, sustained personal injuries. On October 22, 1958, Freehling's then attorney obtained a release from the Rasmussens which reads as follows:

'FOR THE SOLE CONSIDERATION OF FIVE HUNDRED AND NO/100 Dollars, the receipt and sufficiency whereof is hereby acknowledged the undersigned hereby releases and forever discharges ALEXANDER FREEHLING & THOMPSON PIPE COMPANY, their heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable, none of whom admit any liability to the undersigned but all expressly deny any liability from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person or property, which have resulted or may, in the future, develop from an accident which occurred on or about the 24th day of November, 1957 at or near Bellview Avenue & Valley Highway, Arapahoe County, Colorado.

'Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned.

'In Witness Whereof, We have hereunto set our hands and seals this 22nd day of October 1958.'

On March 30, 1959 a suit was begun by Mr. Rasmussen to recover property damage to his automobile in the amount of $83.82. The complaint was subsequently amended to include Mrs. Rasmussen as a plaintiff, damages of $500 medical expenses, $12,000 pain and suffering, and $12,000 permanent disability being claimed by her. Mr. Rasmussen alleged additional damage in the form of loss of consortium in the amount of $5,000.

In his answer Freehling set out the release obtained by his attorney as an affirmative defense. The Rasmussens' reply alleged that the release was obtained by fraud, misrepresentation, and duress in that the document was represented by the attorney as a receipt for the payment of $500 given to cover expenses incurred by the Rasmussens up to that time, and that the document was only signed because the attorney had caused monies from Freehling for the payment of medical expenses to be wrongfully withheld. Pursuant to a request for admissions, the Rasmussens...