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Florkiewicz v. Gonzalez

OPINION FILED APRIL 28, 1976.

BETTY FLORKIEWICZ, PLAINTIFF-APPELLANT,

v.

RUBEN GONZALEZ ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order entered by the trial court directing a verdict in favor of defendants in a personal injury suit.

At approximately 7:30 p.m. on November 28, 1970, plaintiff, her son, daughter and granddaughter were riding as passengers in a taxicab operated by Ruben Gonzalez on behalf of Flash Cab Company and Saturn Cab Company. The taxicab was proceeding in a northwesterly direction along Milwaukee Avenue in Chicago when it collided with another car in the intersection of Milwaukee Avenue and Leavitt Street. The driver of the automobile, Robert Ross, had been traveling in a southeasterly direction along Milwaukee and was in the process of executing a left turn on Leavitt. At the time of the accident, the traffic light at the intersection was green for both vehicles. Plaintiff was rendered unconscious and taken by fire ambulance to a hospital for emergency care. She was treated and released the same evening.

Two days after the accident, an investigator for the taxicab companies visited plaintiff at her home and took a statement concerning the accident. The following day, December 1, 1970, plaintiff and her 13-year-old son signed separate agreements covenanting with Ruben Gonzalez, Flash Cab Company and Saturn Cab Company not to prosecute any claim against them. The consideration for each covenant not to sue was $30. Plaintiff returned to the hospital the same day, after being informed by her doctor that she had sustained a skull fracture. She remained hospitalized for 12 days.

Plaintiff, on December 8, 1970, instituted an action against Ruben Gonzalez, Flash Cab Company, Saturn Cab Company, Robert Ross, Norm's Service, Inc. and Norbert Wutz. On July 23, 1971, she signed a covenant not to sue with Ross, Norm's Service, Inc. and Wutz. The consideration for this covenant was $4800. One month later a check was issued by the Great American Insurance Company for $4800, payable to plaintiff and her attoney. The following was printed on the reverse side of the check:

"The draft will not be paid unless it bears endorsement of all parties named as payees. If endorsement is made by attorney or other representative, satisfactory evidence of authority must accompany the draft. Endorsement of this draft constitutes a release in full for account as stated herein."

Defendants Gonzalez, Flash Cab Company and Saturn Cab Company filed an affirmative defense to plaintiff's suit. They moved that the case be dismissed on the ground that plaintiff had executed a covenant not to sue on December 1, 1970, in which she agreed to refrain from instituting a claim against these defendants in consideration of $30. Plaintiff filed a reply denying that she had executed such a covenant and alleging that at the time in question she was suffering from a fractured skull and did not remember receiving any monies from defendants or cashing a check payable to her in the amount of $30.

Defendants subsequently filed a second affirmative defense contending that the words on the reverse side of the check dated August 23, 1971, and endorsed by plaintiff's attorney were words of release which discharged a joint tortfeasor and therefore also released defendants. In her reply, plaintiff submitted that this check was consideration not for a release but for a covenant not to sue entered into with Ross, Norm's Service, Inc. and Wutz. The words on the reverse side of the draft were said to be the standard-form draft used by Great American Insurance Company and not intended as a release by the parties.

A jury trial was conducted on the matter. At the close of all the evidence, defendants moved for a directed verdict. The court granted the motion and directed the jury to return a not guilty verdict in favor of all defendants. Plaintiff now appeals to this court, presenting the following issues for review: (1) whether a prima facie case of negligence on the part of defendants was presented so that the issue was a question of fact to be decided by the jury; (2) whether the December 1, 1970, covenant not to sue was void as a mutual mistake of fact; and (3) whether the language on the reverse side of the August 23, 1971, draft was a release or merely payment for a covenant not to sue. We shall rule on these issues in reverse order.

• 1 Under Illinois law, a covenant not to sue does not have the same legal effect as a release. A covenant not to sue one of several joint tortfeasors does not automatically release the other wrongdoers not party to the contract or affect their liability. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1973), 10 Ill. App.3d 465, 470, 294 N.E.2d 319, aff'd in part, rev'd in part, on other grounds, 57 Ill.2d 298, 312 N.E.2d 259.) In determining whether the language on the reverse side of the check issued August 23, 1971, was a release of all parties, this court must look to rules of contract construction. We shall therefore consider the words used, the amount paid, the intention of the parties and the substance of the agreement. Reese v. Chicago, Burlington & Quincy R.R. Co. (1972), 5 Ill. App.3d 450, 456, 283 N.E.2d 517.

• 2 Defendants contend the words "Endorsement of this draft constitutes a release in full for account as stated herein," printed on the check discharged them as joint tortfeasors. However, we do not believe that the check represented the agreement of the parties, but find instead that it was merely the consideration for the July 23, 1971, covenant not to sue. Under the terms of this covenant, plaintiff only agreed not to sue Ross, Norm's Service, Inc. and Wutz in consideration of a $4800 payment. The check which was issued in payment was not written by the parties to the agreement; instead, it was a standard-form draft used by Great American Insurance Company.

We also note that the amount paid, $4800, was the exact sum specified as the consideration for the covenant not to sue executed on July 23. If it had been the intention of the parties to release additional persons, where was the additional consideration? The testimony of the claims adjuster who negotiated the covenant showed that the draft was issued pursuant to the covenant and that no further negotiations took place between the time the agreement was signed and the date of the check. Clearly, the intentions of the parties was to effectuate the July 23 covenant not to sue and not to release other joint tortfeasors who were not parties to the covenant.

The trial court refused to allow plaintiff to introduce the covenant not to sue into evidence, citing De Lude v. Rimek (1953), 351 Ill. App. 466, 115 N.E.2d 561, as support. In that case, the reviewing court found it was improper to permit the defendant to introduce into evidence a covenant not to sue between the plaintiff and another joint tortfeasor. The rationale was that the covenant was not relevant to the issue of liability and most likely considered by the jury as evidence that the covenantee was the party responsible for the injury.

The situation in De Lude is distinguishable from the one at bar in two respects. First, it was plaintiff, not defendants, who tried to introduce the covenant into evidence. Second, its admission was sought to establish the fact that the August 23 draft was issued pursuant to the covenant — a critical element in rebutting the affirmative defense of release. We hold that it ...


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