Birmingham v. Kansas City Public Service Co., 41385

• Decision Date: 11 December 1950
• Docket Number: No. 2,No. 41385,41385,2
• Citation: 361 Mo. 458,235 S.W.2d 322
• Parties: BIRMINGHAM v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 322

235 S.W.2d 322

361 Mo. 458

BIRMINGHAM v. KANSAS CITY PUBLIC SERVICE CO.

No. 41385.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1950.

Motion for Rehearing or to Transfer to Court En Banc Denied

Jan. 8, 1951.

Charles L. Carr, Hale Houts, J. D. James, Alvin C. Randall, and Hogsett, Trippe, Depping, Houts & James, Kansas City, for appellant.

Robert L. Jackson, Alfred H. Osborne, Kansas City, for respondent.

ELLISON, Judge.

The defendant-appellant Service Company appeals from an order of the Jackson county circuit court sustaining the plaintiff-respondent's motion for new trial on one of the grounds assigned therein, namely, that the court had erred in giving to the jury one of appellant's requested instructions later set out herein. That issue, in its several aspects, is the main point in controversy on this appeal. But appellant further contends respondent failed to make a case for the jury on the issue of its negligence, and that he was also guilty of contributory negligence as a matter of law.

The underlying facts were that respondent, a boy nine years old, was struck and injured by the automobile of one Bedford while walking or running across Lexington Avenue in Kansas City about 5:30 p m. on November 23, 1945. Respondent, by his mother and next friend, first brought a damage suit for his injuries against the motorist Bedford. Later that petition was amended to include the appellant Service Company as co-defendant, on the theory that one of its busses had passed so close to the boy as to cause him to move into the path of Bedford's automobile. The case was compromised and settled with Bedford's insurer by the boy's mother, guardian and curator, for $2,100, and was dismissed as to Bedford, leaving the appellant Service Company as sole defendant. The cause was tried on a second amended petition, and nine members of the jury returned a verdict for the defendant. The court granted a new trial to the plaintiff-respondent on the sole ground that it had 'erred' in giving to the jury defendant-appellant's requested Instruction No. 7 as follows: 'You are instructed that even though you find defendant was negligent as submitted in other instructions here, if you further find that plaintiff has made a settlement in full with the T. H. Mastin Insurance Company or with Francis G. Bedford on account of the injuries received by plaintiff, or if you further find that plaintiff has been fully compensated by the said T. H. Mastin Insurance Company or by the said Francis G. Bedford for any and all injuries he received, then your verdict will be in favor of the defendant and against the plaintiff.'

The 'settlement' referred to in the instruction was efferted by a written release and the bank draft of Bedford's liability insurer, the Mastin Company, for $2,100. The court excluded part of the written release. The part appearing in the record shows it was captioned 'Partial Release'; that it was signed by plaintiff's mother as his guardian and curator with the sanction of the Probate Court; that it dealt with plaintiff's claim for personal injuries asserted in the instant damage suit then pending in the circuit court against Bedford and the defendant-appellant Service Company; that it released only plaintiff's claim of Bedford's personal liability to him, and expressly reserved the right to proceed against the Service Company; and that the consideration was $2,100. The draft, dated one day later, was for $2,100, payable to plaintiff's guardian and her attorneys, and recited it was in 'Full Settlement.'

The appellant Service Company's first contention here is that the trial court, in granting the respondent a new trial on the sole ground that the above Instruction No. 7 was erroneous, ruled on a 'legal' rather than a 'discretionary' ground, and thereby eliminated its discretionary power to grant the new trial on any other ground, citing Yuronis v. Wells, 322 Mo. 1039, 1046-1048(1-3), 17 S.W.2d 518, 521-523(1-6).

Secondly, appellant makes the point that since the motion for new trial was sustained more than 30 days after the verdict and judgment were rendered (which is true) the trial court could not sustain it on its own initiative on any ground not raised in the respondent's motion for new trial. That, also is true. Sec. 119, Civil Code, Mo.R.S.A. Sec. 847.119.

And thirdly appellant contends there was evidence that in the foregoing settlement of plaintiff's claim his guardian and curator acknowledged full satisfaction thereof, and thereby released the appellant Service Company, as well as the other defendant, Bedford, in whose behalf the settlement was made. On this point appellant invokes Sec. 3658, R.S.1939, Mo.R.S.A., which permits the release of one joint tort-feasor without releasing the others, but does not change the rule that there can be but one satisfaction for a single wrong; and that an acknowledgment of full satisfaction in a settlement with one joint tort-feasor releases the others. On that point several decisions are cited. ¹

We understand counsel's contention to be this. The draft for $2,100 issued by Bedford's insurer to the plaintiff's mother and guardian recited it was 'Full Settlement.' Appellant asserts this meant the draft was in full settlement for plaintiff's whole claim for his injuries, and released not only Bedford, the insured, but also the defendant-appellant Service Company, by virtue of Sec. 3658, supra. This contention is made notwithstanding the fact that the 'Partial Settlement', a separate document stating the terms of the settlement, expressly recited it released Bedford only, and reserved plaintiff's right to proceed against the appellant Public Service Company.

We think there is no merit in this contention. In the Abbott case invoked by appellant, supra, ¹ the plaintiff had been injured through the falling of an awning over a public sidewalk. He made a verbal settlement with one tort-feasor, the building owner, for $500, and gave it a receipt stating that sum was 'in full of all demands, from injury received by the falling of the awning.' Then he sued the city for the same injuries. This court held the plaintiff's foregoing acknowledgment of the receipt of the $500 was more than a mere receipt; that it was in fact a release acknowledging payment of the $500 in full of all demands for his injury; and that it did not contain any suggestion the $500 was paid merely as part compensation for his injury. It was held he was precluded from recovering against the city.

In the McEwen case ¹ cited by appellant, the plaintiff was struck by an automobile while attempting to board a streetcar. Similarly there, she made an oral settlement with the motorist, Thompson, and signed a written release as follows: 'We, the undersigned, Allen A. McEwen and Mary A. McEwen (his wife) hereby acknowledge compensation in full settlement for an automobile accident on January 3rd, 1926, at 19th and Prospect Ave. in which Mary A. McEwen was badly injured by W. H. Thompson's car, and we hereby release him from all further liability in the matter.' The decision held the receipt clearly would have operated as a full settlement for plaintiff's injuries as to both tort-feasors if it had not added specifically that she released the motorist from all further liability, without mentioning the streetcar company. But on authority of the Abbott case, supra, the court's final conclusion was that the streetcar company also was released.

The Kahn case ¹ was a personal injury lamage suit founded on a collision between a streetcar operated by one defendant, in which the plaintiff was riding, and an automobile owned by one and operated by another of the two remaining defendants. The plaintiff settled her case with the defendant streetcar company for $750, and filed an amended petition against the two other defendants. The Court of Appeals held that since the settlement was 'on the total amount for the lawsuit that was pending' against all three defendants when it was made--which was undisputed by the streetcar company's lawyer--therefore the second lawsuit against the two automobile defendants must fail, since the whole claim had been adjusted in the settlement.

Respondent cites two decisions on the point that under the express provisions of Sec. 3658, supra, a claimant may settle a tort claim with less than the whole number of joint tort-feasors, and proceed against the others. There are Berry v. Kansas City Public Service Co., 343 Mo. 474, 488(4), 121 S.W.2d 825, 833(11-16); and Farrell v. Kingshighway Bridge Co., Mo.App., 117 S.W.2d 693, 697(6).

This is obviously true. The crucial question here is whether that was done in this case. Appellant asserts the plaintiff's whole claim of all parties for the casualty was settled. But as already stated the 'Partial Release' expressly recited that it released only plaintiff's claim of Bedford's personal liability to him, and specifically reserved the right to proceed against the appellant Public Service Company. As against that respondent urges that the insurer's draft for $2,100, issued in satisfaction of the settlement, recited it was in 'Full Settlement.' But that obviously referred to the settlement of Bedford's personal liability made with the plaintiff's mother and guardian to whom the draft was made payable. The Release and draft must be read together to get the full meaning of the agreement. And when they are so read it is clear that plaintiff's claim against the appellant Public Service Company asserted in the same suit was left unadjusted.

Appellant cites two decisions holding that a paid and cancelled check may be an instrument of full release as much as a more formal document. And that is true where the check so shows. Thus in Booth v. Dougan, Mo.App., 217 S.W. 326, 327(4), a physician sued a patient on an account for professional services, and the patient produced his paid, indorsed and cancelled check to the plaintiff reading 'Pay to the...