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HUTCHESON v. FRITO-LAY

May 8, 1962

EDGAR HUTCHESON AND LENA HUTCHESON, PLAINTIFFS,
v.
FRITO-LAY, INC., DEFENDANT.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

This case is before the court upon defendant's motion for summary judgment in its favor dismissing the action on the ground that there is no genuine issue as to any material fact, and that the defendant is entitled to a judgment as a matter of law.

The plaintiffs filed their complaint on January 18, 1962, which was amended on February 7, 1962, in which they alleged that on or about April 7, 1961, a truck driven by an agent, servant and employee of the defendant, while acting within the scope of his employment, negligently and carelessly collided with the rear of a car driven by the plaintiff, Lena Hutcheson, and in which Edgar Hutcheson, her husband, was a passenger; that as a direct and proximate result of the negligence of the defendant's agent, servant and employee the plaintiff, Lena Hutcheson, suffered severe personal injuries, for which she seeks to recover damages, and her husband asks for damages for the alleged loss of consortium.

On February 21, 1962, the defendant filed its answer in which it denied the allegations of the complaint, and alleged as an affirmative defense that plaintiff, Lena Hutcheson, was guilty of contributory negligence in that she stopped suddenly in front of defendant's truck.

Defendant also alleged that on May 10, 1961, the plaintiffs, for valuable consideration, released, acquitted and discharged the defendant from all and any claims and causes of action on account of any and all known and unknown injuries, losses and damages sustained or received by the plaintiffs on or about April 7, 1961, through the collision referred to in the amended complaint, and the defendant thus pleaded the release as a bar to all claims asserted in the amended complaint.

On April 20, 1962, the defendant filed a motion for summary judgment based upon: (1) a deposition of plaintiff, Lena Hutcheson, taken on March 1, 1962; (2) a release*fn1 executed by Edgar Hutcheson and Lena Hutcheson on May 10, 1961, in favor of the defendant; and (3) draft No. 9869 on The American Insurance Company in favor of Edgar Hutcheson and Lena Hutcheson in the amount of $152.98 and duly endorsed by them.

On April 30, 1962, plaintiffs filed their reply to defendant's motion based on: (1) an attached affidavit of the plaintiff, Lena Hutcheson; (2) the deposition of the plaintiff, Lena Hutcheson; (3) the deposition of Mr. John F. White, representative of the defendant's liability insurance company; (4) the attached exhibits reflecting the correspondence between the defendant's insurance agent and the plaintiffs; and (5) the accident report completed and signed by the plaintiffs.

The defendant in support of the motion contends that the release executed by the plaintiffs on May 10, 1961, in favor of the defendant, bars their maintenance of the instant action to recover damages for injuries sustained by plaintiff, Mrs. Hutcheson, which allegedly were caused by an automobile collision which occurred at Harrison, Arkansas, on April 7, 1961.

The plaintiffs contend that the motion should be denied on the basis that the release executed by plaintiffs and pleaded by the defendant is void for failure of consideration and fraud in its procurement.

The question presented to the court is whether there is any genuine issue as to any material fact within the meaning of Rule 56, Fed.R.Civ.P., 28 U.S.C.A., and whether either party is entitled to a judgment as a matter of law. In Marion County Co-Op Ass'n v. Carnation Co., (W.D.Ark. 1953), 114 F. Supp. 58, aff'd 214 F.2d 557, this court quoted extensively from a number of decisions of the Court of Appeals for this Circuit relative to various phases of the summary judgment rule. The court will not repeat those quotations here. Suffice it to say that the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, and all doubts are resolved against him. It is with that rule in mind that the court must consider the record in this case.

The general rules as to adequacy of consideration, mistake and fraud which directly affect the execution of a legally valid release are clearly stated in 45 Am. Jur., Release, beginning at page 681:

    "Sec. 14. — Adequacy. The general rule that a
  consideration need not be adequate applies in the
  case of releases. While, to be valuable, the
  consideration must not be so small as to cause one of
  ordinary discretion and judgment to say that nothing
  was paid, the amount of the consideration given for a
  release is ordinarily not material if it is accepted
  and regarded as sufficient by the person executing
  the release. In the absence of fraud, coercion, or
  undue influence, a release cannot be ignored merely
  because the consideration is inadequate, even though
  it may be an improvident settlement.
    "Sec. 19. — Mistake. * * * The great weight of
  authority supports the doctrine that a release of a
  claim for personal injuries cannot be avoided merely
  because the injuries have proved more serious than
  the releasor, at the time of executing the release,
  believed them to be, or because the releasor made ...

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