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McDermott v. Botwick

Decided: January 6, 1956.

MARGARET MCDERMOTT, PLAINTIFF-APPELLANT,
v.
SILVIA BOTWICK, DEFENDANT-RESPONDENT



Clapp, Goldmann and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

Defendant was granted a summary judgment on motion before trial in this automobile negligence personal injury suit. The action was taken on the ground that a general release executed in favor of defendant barred the claim. Plaintiff appeals, alleging that on the affidavit submitted a jury question existed as to whether the release was procured by fraud.

Factually it appears that on October 21, 1954 plaintiff, a pedestrian, was struck and injured by an automobile driven by the defendant. Six days later she signed a general release for $200 discharging all claims against the defendant which arose out of the accident.

Subsequently she sued to recover damages on account of the personal injuries and monetary losses alleged to have resulted from defendant's negligence in operating her car at the time in question. An answer was filed which, in addition to the usual denial of negligence and the assertion of contributory negligence, set forth as a further defense that plaintiff's claim was barred by reason of the general release.

No reply was interposed in spite of the fact that plaintiff is seeking to avoid the legal effect of the release by a claim of fraud in its procurement. In such a situation a reply must be filed. R.R. 4:7-1. However, in view of the affidavit presented on the motion for summary judgment and the conclusion we have reached on the appeal, an opportunity should be given to docket the necessary pleading before trial.

A demand for admissions under R.R. 4:26-1 was served on plaintiff by which she was asked to admit (1) that on October 27, 1954 she signed a general release discharging the defendant from any liability arising out of the accident, and (2) that she received $200 for doing so. Although, as defendant points out, the rule requires the admissions to be furnished under oath, it was not done. A paper designated "Answers to request for admissions," signed by counsel, was delivered to defendant's attorneys. These answers conceded

that "on or about October 27, 1954 the plaintiff signed some paper" and (2) that she received "$200 from the defendant or a representative thereof."

It is argued on behalf of the defendant that the matters referred to in the demand should be deemed admitted because of the failure to submit personal answers under oath and because the answers did not set forth "in detail the reasons why" she could not "truthfully admit or deny" the facts specified. These violations are difficult to understand and to excuse when the language of the rule is so plain. In any event, the basic problem in the case was considered on the merits by the trial court. Undoubtedly it was persuaded to do so by the plaintiff's affidavit on the motion which presumably contained all of the facts on which reliance is placed to avoid the release. We shall do likewise.

Moreover, it may not be amiss to point out that when the request relates to the genuineness of "any relevant document described" therein, the rule also requires a copy to be served unless it has already been furnished. Fair compliance here seems to call for the attachment of a copy of the release.

Some time after receipt of the admissions defendant moved for summary judgment on the theory that the release established a bar to the suit. The motion was supported by an affidavit of an insurance company adjuster who asserted that he settled the plaintiff's claim for $200 after a disclosure of his identity, his interest in the matter, and his purpose in visiting her. He deposed also that the release was signed after full explanation by him as to what it was and as to its effect. Copies of the document and the check in payment accompanied the affidavit.

On the other hand, the plaintiff's affidavit, which was dated July 29, 1955, says that the adjuster came to her home between 9 and 10 in the evening. She was alone at the time, lying on a couch and suffering intense pain from her injuries. She claims that the visitor did not identify himself except to say that he had come to her home ...


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