Last v. Brams

Mr. Justice Gridley delivered the opinion of the court. In an action in tort to recover damages to plaintiff’s automobile occasioned by its collision with defendant’s automobile on December 30, 1923, at the intersection of Fullerton and Kimball avenues, Chicago, the court found defendant guilty and assessed plaintiff’s damages at the sum of $88.25, and entered judgment on the finding against defendant. This appeal followed. Plaintiff has not filed any brief and argument in this Appellate Court. Plaintiff was driving his car east on Fullerton avenue and, as he was making a turn to the north onto Kimball avenue, defendant’s car, approaching from the east on the north side of Fullerton avenue, collided with plaintiff’s car, causing damage to both ears. Each of the parties claimed that the other’s negligence was the cause of the accident. Defendant presented to plaintiff a written claim for $43.65 for the damage to defendant’s car occasioned by the collision, and plaintiff forwarded the claim to an insurance company with which he carried liability insurance. On February 2, 1924, the insurance company, by virtue of plaintiff’s insurance policy, settled defendant’s said claim by paying him $43.65, and taking his written release. On April 28, 1924, plaintiff commenced the present action. On the trial, defendant offered in evidence the said release but the court refused to admit it. By its terms defendant, in consideration of $43.65 paid to him, did “release and forever discharge” plaintiff, “of and from all claims and demands of every kind and nature * * * and particularly on account of any claims for personal injuries or damage to property arising from p,n accident which occurred on or about December 30,1923, at the intersection of Fullerton and Kimball avenues, Chicago, Cook County, Illinois, caused by collision of motor cars of the said William A. Brams and H. 1ST. Last.” Defendant’s counsel do not contend here that the finding and judgment are against the weight of the evidence on the questions either that defendant was guilty of negligence or plaintiff of contributory negligence, but the point is made that the judgment should be reversed because “the settling of defendant’s claim was an accord and satisfaction between the parties and operated as a discharge of plaintiff’s claim.” We do not think that the point is well taken or that the trial court erred in refusing to admit the release in evidence, and for the reason that the release on its face does not purport to settle any claims which the plaintiff had against defendant, but only such as defendant had against plaintiff. Defendant’s counsel further contend that, when the insurance company paid said sum to defendant and took the release from him, it was acting as plaintiff’s agent in the transaction, and that the transaction was in effect an admission of plaintiff’s negligence at the time of the accident and of his liability therefor. We cannot agree. There is ■ nothing in the evidence tending to show that the insurance company was acting as plaintiff’s agent in said transaction. It only appears that the insurance company, for reasons not disclosed, decided on its own account to pay defendant’s claim and take his release. The policy was not introduced in evidence, and it does not appear that the insurance company had any authority, express or implied, from plaintiff to settle or compromise plaintiff’s claim against defendant, or that plaintiff ever sanctioned or ratified the act of the insurance company in paying said sum to defendant and taking his release. (See Burnham v. Williams, 198 Mo. App. 18, 25.) The judgment of the municipal court is affirmed. Affirmed. Barnes, P. J., and Pitch, J., concur.