Roggenkamp v. Marks

• Court: Appellate Court of Illinois
• Writing for the Court: WOLFE
• Citation: Roggenkamp v. Marks, 299 Ill.App. 209, 19 N.E.2d 828 (Ill. App. 1939)
• Decision Date: 07 March 1939
• Docket Number: Gen. No. 9352.
• Parties: ROGGENKAMP v. MARKS ET AL.

299 Ill.App. 209

19 N.E.2d 828

ROGGENKAMP

v.MARKS ET AL.

Gen. No. 9352.

Appellate Court of Illinois, Second District.

March 7, 1939.

Appeal from Circuit Court, Rock Island County; Leonard E. Telleen, Judge.

Suit by Cora N. Roggenkamp, as executrix of the last will and testament of Henry Roggenkamp, deceased, against Ella Marks and another to recover for the death of the deceased, allegedly caused by an automobile collision. Judgment for the plaintiff, and the named defendant appeals.

Judgment reversed. William B. Schroder and Franklin P. Searle, both of Rock Island, and Arthur H. Shay, of Streator, for appellant.

Bell, Farrar & Scott, of Rock Island, and Bush & Bush, of Davenport, Iowa, for appellee.

WOLFE, Justice.

This suit was brought under the Injuries Act, Ill.Rev.Stat.1937, c. 70, § 1 et seq., by Cora N. Roggenkamp, as executrix of the last will and testament of Henry Roggenkamp, deceased, for the death of said Henry Roggenkamp, alleged to have been caused by a collision between the automobile which he was driving and the automobile owned by the defendant, Ella Marks, and driven by the defendant, Emmett Pratt, her agent and servant.

The plaintiff alleges that on August 4, 1936, Rock Island and Moline were both incorporated cities of Illinois, and the City of Rock Island adjoined Moline on the west; that between said cities is what is known as Forty-sixth Street, and that the collision occurred on Forty-sixth Street, at the intersection of Fourth Avenue; that this is in a residential portion of both cities; that the plaintiff's testate was driving his car south upon and across the said intersection, with all due care and caution for his own safety, etc.; that the defendant, Marks, through her agent, then and there drove her motor truck west on Fourth Avenue in Moline, and over and upon said intersection, and collided with the automobile of the plaintiff's testate. The plaintiff then charges the defendants with doing one or more of the following acts: (a) Drove at unlawful rate of speed, (b) Failed to yield the right of way at the intersection, (c) Operated their car so negligently while approaching and crossing the intersection, that they ran into the Roggenkamp car, and the plaintiff was injured and damaged. The defendants filed a motion to dismiss the suit, and attached thereto a copy of a release that they had procured from Henry Roggenkamp, in his lifetime, releasing the defendants from any and all damages through the said collision. This motion was overruled, and the defendants required to answer.

The answer denied any negligent acts on the part of the defendants. They admit the ownership and agency of the automobile in question, and affirmatively plead their release, as set forth in their motion to strike, and attached a copy of the release to their answer. To this answer, the plaintiff filed a reply and averred that at the date of the release, the deceased was of unsound mind, and unable to comprehend the nature of the release. She denied that the decedent had for a good and valuable consideration, or otherwise released or discharged, the defendants from liability. To this reply the defendants filed their answer, and denied the material averment in the reply, and the case was at issue. After the trial had been in progress for some time, it was discovered that Emmett Pratt was a minor, and was not represented by a guardian or guardian ad litem. The Court stopped the trial and appointed a guardian ad litem to represent him. He filed his motion that the case as to him, be dismissed, and the plaintiff confessed the motion, and Pratt was dismissed from the suit, leaving the appellant, Ella Marks, the sole defendant.

At the close of the evidence, the defendant entered a motion for a directed verdict, urging that the omission on the part of the plaintiff to return to the defendant the $50, which had been paid for the release of the liability of defendant, was fatal to her cause of action. The Court overruled this motion, and the case proceeded to trial. The jury found the issues in favor of the plaintiff and assessed her damages at $1,500. The defendant made a motion for judgment notwithstanding the verdict, which was denied by the Court. The defendant also made a motion in arrest of judgment, which was also denied, and the Court entered judgment on the verdict for $1,500. From this judgment, this appeal is prosecuted.

It is urged by the appellant that the plaintiff's testate was guilty of contributory negligence, which was the proximate cause of his injury, and the verdict should not stand. From a review of the evidence in this case, we are convinced that the verdict of the jury is not against the manifest weight of the evidence, and the judgment should not be reversed for that reason.

It is conceded that Henry Roggenkamp in his lifetime signed the release introduced in evidence. The defendant claims this is a complete bar to the plaintiff's cause of action. That he received the $50 consideration mentioned in such release, and retained it, is also conceded. The appellant seriously contends that the failure of the plaintiff to return this $50 to the defendants before the close of the trial is an absolute bar to her cause of action. Before discussing the law relative to this case, it should be noted that the plaintiff does not charge the defendants with any fraud in procuring the release in question. At the trial, Mr. Searle, attorney for the defendant, made an objection to a question as follows: “I wish to make a formal objection. The Plaintiff in this case, is not charging that this lease was obtained by fraud.” Mr. Bell, one of the attorneys for the appellee, replied, “That is all right Mr. Searle, we are not charging fraud.”

In the case of Pawnee Coal Company v. Royce, 184 Ill. 402, 56 N.E. 621, 623, the plaintiff, Royce, was injured in the defendant's coal mine and signed a release to the company for all the damage he had sustained. Later, Mr. Royce started suit against the company, alleging the injuries, etc., and the defendant plead the release. Mr. Royce did not return the money and the goods he had received in payment for the release, but procured a judgment against the Coal Company for damages, far in excess of the amount paid for the release. The Court, in passing upon this question, used this language: “It is a familiar and well-established principle of law that, where a person attempts to avoid a contract or instrument on the ground of fraud or misrepresentation, he must return or restore all he has received under it, or offer to do so, or no action can be maintained by him. Ellington v. King, 49 Ill. 449;Bowen v. Schuler, 41 Ill. 192;Wheeler v. Mather, 56 Ill. 241 [8 Am.Rep. 683];Wolf v. Dietzsch, 75 Ill. 205. And while the plaintiff might not be compelled to rescind before suit brought, under certain circumstances, as, for instance, where he does not know of the existence or nature of the contract, the law is that the rescission and offer to restore must be at the earliest practicable moment, whenever that may be. Hall v. Fullerton, 69 Ill. 448;McCarty v. Marlette, 80 Ill. 526. The release in question, if fairly entered into, would have constituted a complete bar to the cause of action. Kingsley v. Kingsley, 20 Ill. 203;Illinois Central Railroad Co. v. Welch, 52 Ill. 183 [4 Am.Rep. 593]. If, however, a release is procured by the perpetration of an active or positive fraud upon the plaintiff by the defendant or its officers, there may be circumstances under which the plaintiff will not be...