Appeal from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding. Summary judgment for defendants
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from a summary judgment entered in favor of the defendants in a personal injury suit growing out of a rear-end collision on June 3, 1962, when the automobile the plaintiff was driving was hit in the rear by a vehicle driven by defendant Mrs. Phillip Centa. A third vehicle driven by defendant Wilbert Manzke had driven into the rear of the Centa car and forced it against plaintiff's car. Plaintiff negotiated a settlement and on June 20, 1962, seventeen days after the accident, she and her husband Richard executed a release of defendant Manzke. Plaintiff received the sum of $175, and in addition thereto the sum of $25 was paid for the release of any injury to her child who was in the car at the time of the accident, but with respect to whom no claim was made. That the release, if effective at all, discharges both defendants is not questioned. The principal issue in this case is whether the trial judge, sitting as a chancellor, properly set aside the release on motion for summary judgment.
Plaintiff in her complaint made no reference to a release. The answer of defendant Manzke denied the charges of negligence and pleaded the affirmative defense of release. Mrs. Centa, by her answer, likewise denied the allegations of negligence and alleged that her vehicle while stationary was forced into contact with plaintiff's car by the impact of defendant Manzke's car. She also pleaded the release as an affirmative defense.
In reply to the answers of the defendants, plaintiff admitted the execution of the release and admitted endorsing the draft in the sum of $200 paid to her for herself and her child. She alleged in her amended reply that the release did not constitute a release in law "inasmuch as the [sic] represent a mistake of fact, as between the parties." She added a paragraph, arguendo, that none of the parties to the cause intended to release a claim for the serious, substantial and permanent injuries of which the plaintiff now complains, "but rather [that it] indicated only a settlement of a property damage claim, a minor, temporary and inconsequential injury claim and the inconvenience attendant thereto."
Plaintiff then filed an amended complaint and finally a second amended complaint in two counts on January 8, 1965. In Count I she alleged that she was unaware of the nature and extent of her injuries and that defendant's agent who had procured her release was also unaware thereof; that both were mutually mistaken in believing that plaintiff's injuries were slight and inconsequential; and that subsequently it developed that the injuries sustained were of a serious and permanent nature and that had both parties been aware of the true nature of her condition, the release would not have been executed. Plaintiff tendered back the $175 paid to her and prayed that the release be declared null and void. The second count charged negligence against both defendants and that plaintiff had suffered internal and external disorders. Defendant Centa denied the averments of Count I with respect to the release, and as to Count II averred that her car had been pushed by defendant Manzke's car into contact with plaintiff's automobile. Manzke likewise denied the averments with respect to the release and denied the charge of negligence on his part.
Motions for summary judgment were made by Centa and Manzke. They were supported by affidavits and by a discovery deposition of plaintiff. In her affidavit Mrs. Centa not only relied on the release, but restated her defense with respect to her car being pushed by defendant Manzke's car into plaintiff's car. In her deposition, plaintiff testified that the accident occurred in Tinley Park, Illinois, on a Sunday morning; that she was stopped about midblock in a line of heavy Sunday morning church traffic and that she observed the Centa car in her rear view mirror while the latter pulled up behind her and stopped. Her verbatim testimony on this vital point is as follows:
"Q. And did you see a car come up behind you and stop behind you?
"Q. And did you see that in your rear view mirror?
"A. Yes, I knew there was a car in back of me.
"Q. Did you see it come up and stop behind you?
"A. I am pretty sure she was stopped."
When questioned with regard to her remarks immediately following the collision, plaintiff replied, "Oh, I do remember saying that evidently that man Manzke, or whoever it was, must have hit both of us." Plaintiff's slight qualification of her statement does not reflect upon the verity of her original testimony.
After the accident plaintiff suffered discomfort to her neck, and a day or so following the accident went to her family doctor for a checkup. Between the date of the accident and the signing of the release, plaintiff visited her doctor several times, complaining of pain in the neck and chest. He took X-rays of her neck and after several visits assured her that aside from the discomfort there was nothing wrong. Plaintiff testified that an insurance adjuster representing defendant Manzke's insurance carrier called on her to discuss settlement. She told him she did not wish to settle until she was satisfied that she was all right. After her series of visits to her doctor, she called the adjuster and said she was ready to discuss settlement. He came to her home again, where the release was executed on June 20, 1962. Five months later, in November, 1962, after experiencing severe headache pain, plaintiff again went to see her doctor and her injury was ...