Appeal from the Circuit Court of Cook County; the Hon. HUGO M.
FRIEND, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 12, 1967.
This appeal was taken from an order of the trial court entering a summary judgment in favor of the defendant and against the plaintiff, and denying the plaintiff's motion for summary judgment as to defendant's affirmative defense. The plaintiff had brought suit to recover damages flowing from the alleged negligence of the defendant and had demanded a jury trial. The defendant filed an answer denying negligence, denying that plaintiff at the time of the accident (April 4, 1963), was exercising due care, and affirmatively pleaded that on April 12, 1963, plaintiff had signed a release as to all claims against the defendant.
On December 11, 1963, plaintiff filed a reply to the affirmative defense in which she stated that the release had been obtained from her while she was a patient in the Henrotin Hospital in Chicago, under sedation and in a weakened condition due to a cerebral concussion, whiplash, lacerations about the head and body and fractured vertebrae received in an automobile accident eight days earlier. She stated that as a result she was deprived of her mental faculties and incapable of entering into a contract. She also alleged that the insurance adjuster who obtained the alleged release had visited her four days after the occurrence "in violation of the rules of the hospital and the plaintiff's doctor"; that he had obtained the trust and confidence of the plaintiff and had continually assured her that everything would be taken care of. It is further alleged that on August 9, 1963, the plaintiff sent notice of disaffirmance of the alleged release to the defendant and her insurance carrier, Allstate Insurance Company, together with a certified check for $450, payable to the order of the defendant and her agent and insurance company.
On May 18, 1964, the defendant filed a motion for summary judgment, in which motion defendant summarized the pleadings and set out extracts from the plaintiff's deposition with regard to her contact with the insurance adjuster. The last paragraph in the motion asked for an order for summary judgment for the defendant "because there is no genuine issue of material fact, but that plaintiff signed a release while she was in complete control of her mental faculties and free from duress or undue influence."
On September 16, 1964, by leave of court the plaintiff filed a supplemental reply to the affirmative defense pleaded by the defendant in which she reiterated the matters set up in her reply, and in addition stated that the agent of the Allstate Insurance Company had told the plaintiff he would advise her as a friend that it was in her best interest not to retain an attorney; that it was in her best interest not to file suit against the defendant; and that since plaintiff "did not have any witnesses she would end up paying attorney fees and court costs and all the hospital and doctor bills"; that plaintiff acted upon the "fraudulent and untrue statement of Allstate Insurance Company that she had no witnesses, depending upon the trust and confidence she reposed in Allstate Insurance Company, unable to protect her own interests due to her weakened condition, tender age and lack of representation, signed a release of her claim against the defendant, Roberta L. Milner; that the disaffirmation of the release referred to in plaintiff's first reply is predicated upon defendant Roberta L. Milner's authorization of the aforementioned fraudulent acts of Allstate Insurance Company."
On October 6, 1964, by leave of court the plaintiff filed a separate count in chancery and an amendment to the supplemental reply heretofore filed, in which count in chancery plaintiff set out substantially the same material contained in the two replies, and prayed that the release be declared null and void. In the amendment to the supplemental reply the plaintiff has set out that on August 9, 1963, she sent by certified mail to defendant and Allstate Insurance Company a certified check for $450, payable to defendant; that the defendant and her agent and insurance carrier, Allstate Insurance Company, retained the above described check for over eleven months. On October 28, 1964, the plaintiff filed a motion for summary judgment, supported by an affidavit of James N. Vail, her attorney, in which affidavit he reiterated the disaffirmation of the release and the retention of the certified check by Allstate Insurance Company for over eleven months. Attached to his affidavit was the notation of disaffirmance and tender back of consideration dated August 9, 1963. The notice was addressed to Roberta L. Milner and Allstate Insurance Company, and read as follows:
"Please be advised that Judy Ann Brackeen disaffirms, rescinds and forever cancels a certain release tendered to her on or about April 12, 1963 at Henrotin Hospital, 939 N. LaSalle St., Chicago, Illinois, by a claims adjuster employed with and representing Allstate Insurance Company, and signed by said Judy Ann Brackeen for $450.00 while hospitalized and under treatment for fractured vertebrae, cerebral concussion, lacerations about the head and body and other serious and permanent injuries resulting from being struck by an automobile driven by Roberta L. Milner, 20 E. Goethe, Chicago, Illinois, on or about April 4, 1963, at or near State St. and Wacker Drive, Chicago, Illinois.
"Be also advised that Judy Ann Brackeen tenders herewith the sum of $450.00 in the form of a certified check drawn on The Northern Trust Company and made payable to Allstate Insurance Company and Roberta L. Milner."
In support of plaintiff's motion for summary judgment a letter was also filed. The letter was from Allstate Insurance Company, dated July 20, 1964, addressed to Vail and Rollberg, and read as follows:
"Enclosed please find your certified check in the amount of $450.00 that was forwarded to our office on August 9, 1963.
"Any inquiries regarding this matter will be handled by the law firm of Peterson, Lowry, Rall, Barber and Ross.
/s/ Ralph Widlic, Claim ...