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Meyer v. Murray

OPINION FILED MARCH 7, 1979.

ANNE MEYER ET AL., EX'RS UNDER THE LAST WILL AND TESTAMENT OF MILTON C. MEYER, DECEASED, PLAINTIFFS-APPELLANTS,

v.

GEORGE W. MURRAY ET AL., DEFENDANTS. — (CHECKER TAXI COMPANY, INC., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND S. SARNOW, Judge, presiding.

MR. JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 16, 1979.

This action was brought to recover damages for the alleged wrongful death of Milton C. Meyer, who was a passenger in a Checker Taxi Company cab when it was struck by another automobile. The Checker Taxi Company, its driver, William Mangan, and the driver of the automobile, George W. Murray, were named as defendants. Defendant Checker Taxi Company filed a motion to dismiss, based on a covenant not to sue executed by the decedent, Milton C. Meyer. The trial court judge granted the motion and dismissed the action as to defendant, Checker Taxi Company. The suit remains pending as to the other defendants. The plaintiffs are appealing from the dismissal order and from the order denying their petition to vacate the dismissal order pursuant to Supreme Court Rule 304. We reverse and remand.

The accident occurred on July 20, 1977. The cab was proceeding in a southerly direction in the extreme left lane of traffic on Michigan Avenue near its intersection with Adams Street in Chicago, Illinois. The automobile being driven by George W. Murray was also proceeding in a southerly direction. The Murray automobile tried to pass the cab on the left side and went over the center line of Michigan Avenue. Murray "couldn't pass so he slowed and tried to get back into the left lane and as he did the right fender" of the Murray automobile "hit the left rear of the cab." At the time of the accident the cab was proceeding slowly. The accident happened about 8:15 a.m. The police arrived at the scene shortly thereafter.

After these events, Milton C. Meyer continued the trip to his office at 1303 South Michigan Avenue. He arrived at the office about 9 a.m. and worked for a few hours. During that time he was visited by a claims adjuster for the Checker Taxi Company. Milton C. Meyer then completed in his own handwriting and in his own words a document entitled "Report of Accident" which he signed and dated. He also executed a covenant not to sue the Checker Taxi Company or any of its agents or employees for damages or compensation as a result of the accident; he accepted a check for $250 in consideration for the covenant not to sue.

About noon, he apparently was not feeling well and went home. Later in the day he had a heart seizure and was taken to a hospital where he died that same day. The Medical Certificate of Death provides that he died from: (a) acute coronary thrombosis having an interval of minutes between onset and death; and, (b) arteriosclerotic heart disease having an interval of years between onset and death. He was 72 years old at the time of death.

The "Report of Accident," which was completed in the decedent's own writing, states, inter alia:

"REPORT OF ACCIDENT

IN WHAT DIRECTION WAS CAB GOING? South APPROX. SPEED Slow IN WHAT DIRECTION WAS THE OTHER CAR GOING? South

WAS ANYONE INJURED? Yes WERE YOU INJURED? Yes WHOM DO YOU CONSIDER TO BLAME FOR THE ACCIDENT? Other Car

DESCRIBE ACCIDENT IN BRIEF IN YOUR OWN WORDS.

The cab was southbound on Michigan Ave. in the extreme left lane. A blue car tried to pass the cab on the left lane going over the center line. The other driver saw he couldn't pass, so he slowed and tried to get back into the left lane and as he did the right fender of the other car hit the left rear of the cab. I twisted my back in this accident. The above is true and correct.

SIGNATURE /s/ Milton Meyer"

An estate was opened in August 1977, naming the plaintiffs as executors. On September 26, 1977, the check for $250 was returned to the defendant's representative accompanied by a letter from the plaintiffs' attorney stating that it was "unacceptable, being based upon a mistake as to the extent, ...


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