Vondera v. Chapman

• Decision Date: 05 June 1944
• Docket Number: 38774
• Parties: Mrs. Helen Vondera, Appellant, v. Oliver M. Chapman and Mrs. Louis J. Wilson
• Court: Missouri Supreme Court

180 S.W.2d 704

352 Mo. 1034

Mrs. Helen Vondera, Appellant, v. Oliver M. Chapman and Mrs. Louis J. Wilson

No. 38774

Supreme Court of Missouri

June 5, 1944

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

Hay & Flanagan for appellant.

(1) Plaintiff's reply alleged facts showing that the release set up in defendants' answers was executed under a mutual mistake of fact as to the nature of the injuries sustained by plaintiff. It was error, therefore, for the court to sustain defendants' demurrers to the reply, and to sustain defendants' motion for judgment on the pleadings, as a rule is well settled that a general release of a claim for personal injuries may be avoided on the ground of a mutual mistake of fact as to the existence of an injury unknown to the parties at the time the release is executed. Blair v Chicago & Alton Railroad Co., 89 Mo. 383, 1 S.W. 350; Atlantic Greyhound Lines, Inc., v. Metz, 70 F.2d 166; St. Louis-S.F. Railroad Co. v. Cox, 171 Ark 103, 283 S.W. 31; Tatman v. Philadelphia, B. & W.R. Co., 10 Del. Ch. 105, 85 A. 716; Reddington v. Blue, 168 Iowa 34, 149 N.W. 933; Smith v. Kansas City, 102 Kan. 518, 171 P. 9; Enger v. Great Northern Railroad Co., 141 Minn. 86, 169 N.W. 474; Simpson v. Omaha & C.B. Street Railroad Co., 107 Neb. 779, 186 N.W. 1001; Dominicis v. United States Cas. Co., 132 A.D. 553, 116 N.Y.S. 975; Clark v. Northern Pac. Railroad Co., 36 N. Dak. 503, 162 N.W. 406; St. Louis-S.F. Railroad Co., v. Cauthen, 112 Okla. 256, 241 P. 188; Tulsa City Lines v. Mains, 107 F.2d 377; Atchison, T. & S.F. Railroad Co. v. Peterson, 34 Ariz. 292, 271 P. 406; Poti v. New England Road Machinery Co., 83 N.H. 232, 140 A. 587; Spangler v. Kartzman, 121 N.J.Eq. 64, 187 A. 770; Palino v. Hazle Brook Coal Co., 112 Pa.Super. Ct., 15, 171 A. 82; Metropolitan Life Ins. Co. v. Humphrey, 167 Tenn. 421, 70 S.W.2d 361; Janney v. Virginian Railroad Co., 119 W.Va. 249, 193 S.E. 187; Granger v. Chicago, M. & St. P. Railroad Co., 194 Wis. 51, 215 N.W. 576; Great Northern R. Co. v. Reid, 157 C.C.A. 382, 245 F. 86; Landau v. Hertz Drivurself Stations, 237 A.D. 141, 260 N.Y.S. 561. (2) Even though a release is in such general terms as to cover unknown injuries, this does not prevent its avoidance for a mutual mistake of fact if, at the time the release is executed, the releasor has sustained a serious injury of which both he and the releasee are ignorant. Tulsa City Lines v. Mains, 107 F.2d 377. (3) The release is to be construed most strongly against defendants since they drafted it. Burrus v. Continental Life Ins. Co., 40 S.W.2d 493, 225 Mo.App. 1129; John Deere Plow Co. v. Cooper, 91 S.W.2d 145, 230 Mo.App. 167. (4) Furthermore, in arriving at the intention of the parties as expressed in the release, consideration must be given to the release as a whole. Thomas v. Utilities Bldg. Corp., 74 S.W.2d 578, 335 Mo. 900; Spears v. Carter, 24 S.W.2d 717, 224 Mo.App. 726. So construed, it is apparent that the release was intended to cover only known injuries, and such effects and consequences as might later develop from such known injuries.

Fred Blades and Moser, Marsalek & Dearing for respondents.

(1) If, as plaintiff alleged in her reply, she had sustained injuries which were not known at the time the release was executed, and were later discovered, there was no mutual mistake, because the parties contemplated and specifically contracted with respect to such unknown injuries. Consequently the reply stated no ground for avoiding the release. Thompson v. K.C.W. Ry. Co., 142 Mo.App. 234, 125 S.W. 1190; Farrington v. Harlem Sav. Bank, 280 N.Y. 1, 19 N.E.2d 657; Hume v. American-West African Line, 36 F.Supp. 880; Houston v. Trower, 297 F. 558; Hanson v. Northern States Power Co., 198 198 Minn. 24, 268 N.W. 642; Serr v. Biwabik, etc., Co., 202 Minn. 165, 278 N.W. 355; Berry v. Struble, 20 Cal.App. (2d) 299, 66 P.2d 746; Jordan v. Guerra, 136 P.2d 367; Houston & T.R. Co. v. McCarty, 94 Tex. 298, 60 S.W. 429; Quebe v. Gulf, C. & S.F.R. Co., 98 Tex. 6, 81 S.W. 20; Anderson v. Oregon S.T. Co., 47 Utah 614, 155 P. 446; Cogswell v. Boston, etc., R. Co., 78 N.H. 379, 101 A. 145. (2) The intention of the parties to a written agreement must be determined from the terms used by them in the agreement itself. Koehring v. Muemminghoff, 61 Mo. 403; St. Louis Union Trust Co. v. MacGovern Co., 297 Mo. 527, 249 S.W. 68. (3) The court is not warranted in disregarding any of the terms employed by the parties in their agreement, but all such terms must be given effect. Myers v. Union E.L. & P. Co., 334 Mo. 622, 66 S.W.2d 565; Thomas v. Utilities Bldg. Corp., 335 Mo. 900, 74 S.W.2d 578. (4) Plaintiff is bound by all the provisions of the release she signed, as it was her duty to read it or otherwise advise herself of its contents before signing it. Thompson v. K.C.W. Ry. Co., supra; Och v. Missouri, K. & T.R. Co., 130 Mo. 27, 31 S.W. 962; Poe v. Illinois Central R. Co., 339 Mo. 1025, 99 S.W.2d 82. (5) The courts of this State, adhere to the rule that, where a release covers all injuries and all claims in reference thereto, the fact that injurious consequences subsequently arise of which the plaintiff was not aware when the release was signed, has no effect in removing the bar of the release. Newcomb v. Payne, 250 S.W. 553; Corey v. Chicago, B. & K.C.R. Co., 100 Mo. 282, 13 S.W. 346; Hogard v. Kansas City Rys. Co., 202 S.W. 431; Forbs v. St. Louis, I.M. & S.R. Co., 107 Mo.App. 661, 82 S.W. 562; Shanley v. Laclede Gaslight Co., 63 Mo.App. 123. (6) The contention of plaintiff, based upon the statement that the release was prepared by defendants and must be construed most strongly against them, is not supported by the record, and is further unavailing because the release is not subject to construction. Its terms are plain, and they should be enforced as written. State ex rel. Natl. Life Ins. Co. v. Allen, 301 Mo. 631, 256 S.W. 737; Liggett v. Levy, 233 Mo. 590, 136 S.W. 299.

OPINION

Clark, P.J.

Appellant sued respondents for $ 25,000.00 for injuries alleged to have been caused by a collision between the automobiles of appellant and respondents. Respondents answered by general denial and set up a release, executed by appellant nine days after the collision, in which appellant acknowledged the receipt of $ 175.00 in full settlement for all injuries "not only now known injuries, losses and damages, but any future injuries, losses and damages not now known or anticipated but which may later develop or be discovered, including all the effects and consequences thereof."

Appellant by reply admitted the execution of the release, but alleged: that it was executed at a time when the only injuries of which appellant had knowledge or could have known by the exercise of ordinary care were superficial and slight; that such injuries were all that were known by respondents at the time the release was executed; that if respondents had knowledge or information of any additional injuries they did not communicate the same to appellant, but fraudulently withheld it from her; that appellant made the settlement in the honest belief that such injuries were all that she had sustained; that the amount of settlement was considered by her, and according to her best information and belief by the respondents, to be fair and reasonable compensation for the injuries then known by the parties. The reply then alleges that shortly thereafter she discovered additional injuries, described in detail, of such nature that the amount of settlement would be grossly and shockingly inadequate to compensate her; that if she had known of such injuries she would not have settled for so small a sum, and that the settlement was made as a result of a mutual mistake on the part of appellant and respondents as to the existence of such serious and permanent injuries.

Demurrers to the reply were sustained. Appellant refused to plead further and this appeal is from the judgment entered in favor of respondents. Assuming, as we must in considering respondents' demurrer, that the allegations of appellant's reply are true, it is evident that she made a bad bargain in her contract of settlement. This court would be disposed to relieve her of the consequences of that bargain if we could find any valid legal reason for doing so. We have been unable to find such a reason in any of the cases cited by appellant. In many of them releases, or contracts of settlement, were set aside, but upon facts which differ materially from those of the instant case. In only one of them, Tulsa City Lines v. Mains, 107 F.2d 377, did the release purport to cover unknown injuries. There the court based its decision upon the fact, clearly established that the plaintiff relied in part upon the erroneous statement of defendant's physician as to the extent of plaintiff's injuries which statement was made at a time when, because of her injuries and the effect of medicine given her, she was unable to appreciate her rights. The release was in general terms and this court construed it to apply only to injuries then known by the parties and was not intended to settle for damages which might ensue in the future. In each of the following cases, St. L.-S. F.R.R. v. Cox (Ark.), 171 Ark. 103, 283 S.W. 31; Tatman v. Philadelphia B. & W. Ry., 10 Del. Ch. 105, 85 A. 716; Reddington v. Blue, 168 Iowa 34, 149 N.W. 933; Enger v. Great Northern R. Co., 141 Minn. 86, 169 N.W. 474; Dominicis v. U.S. Casualty Co., 132 A.D. 553, 116 N.Y.S. 975; Clark v. Northern Pac. R. Co., 36 N. Dak. 503, 162 N.W. 406; St. L.-S. F.R. Co. v. Cauthen, 112 Okla. 256, 241 P. 188; A.T. & S.F. Ry. v. Peterson, 34 Ariz. 292, 271 P. 406; Poti v. New England, etc., Co., 83 N.H. 232, 140 A. 587; Spangler v. Kartzman, 121 N.J.Eq. 64, 187 A. 770; Palino...