Appeal by plaintiff from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the February term, 1951. Judgment affirmed. Opinion
filed August 28, 1951. Released for publication September 27,
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On March 18, 1950, William H. Strong, as administrator of the estate of E.F. Horner, deceased, filed his complaint under the Wrongful Death Act, charging in Count One thereof that on March 3, 1949, the defendant drove his automobile in a southerly direction on U.S. Highway 51 near its intersection with Bridge Street in the Town of Roscoe, Winnebago county, Illinois; that plaintiff's intestate, a pedestrian, in the exercise of due care for his own safety, was lawfully upon the western portion of said highway; that defendant negligently drove his automobile upon plaintiff's intestate, resulting in his receiving injuries from which he died on March 20, 1949. Count Two alleged the same acts or omissions of duty as alleged in Count One but charged that they were done or omitted wilfully and wantonly and with a reckless disregard for the safety of others. In both counts it was alleged that decedent left him surviving a son, Horace W. Horner, his sole and only heir at law and only next of kin.
On March 29, 1950, the defendant filed his verified motion to dismiss the suit under section 48 (g) of the Civil Practice Act (Ill. Rev. Stat. 1949, chap. 110, art. VII, par. 172 [Jones Ill. Stats. Ann. 104.048]). The basis for the motion was that Horace W. Horner, the sole and only heir at law and the sole next of kin of the said E.F. Horner, had released the cause of action. Attached to this motion was a copy of the release executed by Horace W. Horner releasing defendant from all liability occasioned by the accident which resulted in the death of E.F. Horner. A copy of the affidavit of Horace W. Horner, executed at the same time, was also attached to said motion. This affidavit recited that Horace W. Horner was the sole heir at law and next of kin of E.F. Horner, deceased; that no administration had been had in his estate; that the funeral expenses had been paid and that he died intestate leaving no real estate and his personal estate including the claim against defendant for his wrongful death does not exceed $1,000. This affidavit concludes that the purpose for making the same was to induce the defendant herein to pay $750 in settlement of said claim to affiant as the person entitled thereof and pursuant to the probate act concerning small estates.
Also attached to said motion was the affidavit of defendant to the effect that the automobile he was driving at the time it struck E.F. Horner was insured by a policy of automobile liability insurance issued to him by State Farm Mutual Insurance Company; that after March 3, 1949, he informed Horace W. Horner, only son and next of kin of said E.F. Horner, deceased, of the fact of his insurance and that thereafter the representatives of said insurance company and the said Horace W. Horner told affiant (the defendant herein) that any claim, demand, or cause of action which Horace W. Horner might have against affiant had been settled and released.
The affidavit of Thomas A. Keegan, one of the members of the law firm of Knight, Haye and Keegan, was also filed in support of this motion. This affidavit is to the effect that on April 11, 1949, said law firm represented said State Farm Mutual Insurance Company; that on that day, Horace W. Horner appeared in the office of Knight, Haye and Keegan and gave to affiant the facts as set forth in the affidavit of Kenneth Albee, hereinafter referred to; that at that time Horace W. Horner also executed the affidavit and release hereinbefore referred to.
The affidavit of Kenneth Albee was to the effect that on March 21, 1949, he was employed as an adjuster for the State Farm Mutual Automobile Insurance Company and on that day the said Horace W. Horner came to the office of said company in Rockford and there met affiant; that Horace W. Horner then and there informed affiant that his late father, E.F. Horner, had been struck by an automobile driven by defendant on March 3, 1949, and had died on March 20, 1949; that he, Horace W. Horner, was the sole heir; that he had no intention of petitioning for Letters of Administration as his father had no estate to administer and that he wished, as the only heir and next of kin of E.F. Horner, deceased, to settle and compromise his claim against defendant; that subsequently the sum of $750 was agreed upon, and a draft therefor was delivered to Horace W. Horner and accepted by him in full settlement and compromise of any and all claims or cause of action which he then had against the defendant, Herbert H. Hodges, and that the payment of $750 formed the consideration for the release which Horace W. Horner then executed.
On May 5, 1950, this motion to dismiss was heard, and at the conclusion of the hearing the court dismissed the complaint and rendered an appropriate judgment. Thereafter and on June 3, 1950, a motion to vacate this judgment was made by the plaintiff. This motion was not verified but was accompanied by the following affidavit, viz:-
"State of Illinois | > SS. Winnebago County |
"John R. Snively, being first duly sworn, on oath deposes and says:
"1. That he is the attorney of record for the plaintiff.
"2. That no notice of the hearing of the motion was served upon him by the defendant in accordance with Rule 7 of the Supreme Court.
"3. That he did, however, receive a notice from the Clerk of this court on May 4, 1950, that the hearing was set for May 5, 1950.
"4. That E.F. Horner left him surviving no widow, and Horace W. Horner, a son, as his next of kin, that said next of kin is a resident of the State of Wisconsin, and that he has not had an ...