Mason v. Henderson

Orth, J., delivered the opinion of the Court. On 23 December 1970 JEREMIAH ALOYSIUS MASON (appellant-plaintiff) sued SUE RUTH (BROMS) HENDERSON (appellee-defendant) in the Circuit Court for Saint Mary’s County in tort for personal injuries resulting from an accident involving motor vehicles operated by them, claiming $25,000 and costs. Appellee filed a general issue plea and requested trial by jury. She filed notice of taking of oral depositions of appellant, he was deposed and his deposition was subsequently filed.

Each party filed interrogatories and answers to the interrogatories presented. Appellee amended her plea by pleading, in addition to the general issue plea, “That before filing suit, the plaintiff, for a valuable consideration, released the defendant by accepting the sum of $338.61 in full and final settlement of any and all claims of the plaintiff.” She then moved for a summary judgment “on the grounds that there is no genuine dispute as to any material fact regarding the release and/or accord and satisfaction entered into between the plaintiff and defendant and that the defendant is entitled to summary judgment as a matter of law.” The memorandum of points and authorities cited Maryland Rule 610 and continued: “Attached hereto, as a part hereof, is a photocopy of a check, dated March 27, 1970, payable to the plaintiff herein in the amount of $338.61. As can be seen from the photocopy, the reverse side of said check was signed by the plaintiff and negotiated. As can be seen, the check is marked full and final.

The words, ‘Settlement ³⁷² of Property Damage Only’ having written on said check by the plaintiff’s attorney; neither the plaintiff nor his attorney were authorized at any time to alter the draft in question. It is clear that they had two alternatives — to either accept the check as written or to reject it, but they cannot alter a material term of the check for their own benefit. Also attached hereto, as a part hereof, is an estimate for property damage to the plaintiff’s car in the amount of $238.61. It is clear that the plaintiff was paid, not only for his property damage, but given an additional $100.00 for his alleged bodily injury claim.

By accepting this sum, he released the defendant or entered into an accord and/or satisfaction; in either event, the defendant is entitled to summary judgment.” The copy of the “check” attached stated on its face that it was a draft dated 3/27/70 issued by The Continental Insurance Companies payable to Jeremiah Mason, insured Willard Lloyd Broms, policy number 03029501, date of loss 2/24/70. The amount of the draft as shown by figures typed thereon was $338.61, but the amount as typed in words read “Two-hundred-Thirty-eight and 61/100” preceding the printed word “DOLLARS.” On the lower left side of the draft was typed “Full and Final.” Following those words, in handwriting, was “Settlement of property damage only.” On the reverse side of the draft appeared a signature “Jeremiah Mason” and stampings, not readily decipherable but of the kind indicating that the check had been paid. The copy of the estimate attached, dated what appears to be 3/17, was by “Property Damage Appraisers” in a total amount of $238.61 being for labor, parts and tax for repairs to the automobile of “J. A. Mason.” The repair shop was designated as “George” and it was “accepted by George.” There was a printed caveat: “This is not an authorization for ³⁷³ repairs.” Appellant answered the motion requesting that it be denied. He alleged: “1.

That it was not the intention of the parties that the cashing of the check would operate as a release for the personal injury claim and the loss of consortium. 2. That the consideration is inadequate. 3. That if the Defendant intended that the payment of the check was a release for the personal injuries, that the Plaintiff mistakenly cashed same. 4. That the Plaintiff has been deprived of his automobile for a period of time during its repair and was entitled to compensation for the loss of use of said vehicle.” In appellant’s deposition he said his car had been repaired at George’s and the work had been paid for with the check in question which had been given him by Mr. Frank Combs of the Combs Insurance Agency “for getting the car fixed.” Mr. Combs did not tell him to write anything on the check and except for his endorsement on the back he did not do so.

Mr. Combs had told him to take his car to “those estimators and get an estimate on it.” He was not sure of the amount of the estimate. When he picked up the check Mr. Combs “just asked me did I get the car fixed and I told him yes.” He said the words written after the typed “Full and Final” were not written by him — “Somebody must have added it later.” He signed the check and gave it to George’s Auto Body. He did not recall the amount of the check, at first he thought it was “for $400 something dollars” but was not sure. It was the only check he received from the insurance agency.

Hearing on the motion was set for 29 July 1971. The record before us does not contain a transcript of the proceedings at the hearing. The docket entries read: “Counsel to submit written memos to Court within 5 days.” On 4 August appellee’s memorandum was filed. The record does not indicate that appellant filed a memorandum.

On 11 August 1971 the lower court “upon con ³⁷⁴ sideration of the foregoing Motion for Summary Judgment, Notice to the Plaintiff and Points and Authorities,” ordered “that summary judgment be and the same is hereby granted in favor of the defendant.” Mason appealed from the judgment. Rule 610 deals with summary