Black v. Sanders, 52230

Decision Date10 April 1967
Docket NumberNo. 52230,No. 1,52230,1
Citation414 S.W.2d 241
PartiesLester J. BLACK, Appellant, v. Perry SANDERS, d/b/a Perry Sanders Plumbing and Heating Company, Respondent
CourtMissouri Supreme Court

James S. Formby, Formby & Paden, and Koenigsdorf, Kaplan, Kraft, Adelman & Fox, Kansas City, for appellant, Lester J. Black.

John C. Milholland, A.J. Anderson, Harrisonville, for respondent.

SAMUEL E. SEMPLE, Special Judge.

This is a action by appellant Black for $25,000 damages for personal injuries, and appeal from an order of the trial court sustaining respondent Sanders' motion for summary judgment.

This suit arises out of a collision which occurred on October 10, 1960, between a truck operated by appellant Black and a truck owned by respondent Sanders and operated by one Willie A. Hayden, an employee of respondent. On October 19, 1960, Hayden filed suit against appellant Black in the Circuit Court of Cass County, Missouri, for damages for injuries sustained as a result of alleged negligence of Black in causing the collision. The case was removed within twenty days to the United States District Court by attorneys representing Black's liability insurance company. On November 26, 1960, appellant Black, through his own personal attorenys, filed this present action in the Circuit Court of Cass County, Missouri, against respondent Sanders for damages sustained as a result of alleged negligence of Sanders' employee Hayden in casuing the same collision. On February 26, 1962, appellant filed a first amended petition and on June 18, 1962, respondent filed answer to the first amended petition and also filed a counteclaim petition and also filed a counterclaim represented by the attorneys for his insurer, filed a reply to respondent's counterclaim. Thereafter, counsel for appellant's insurer settled Hayden's suit against appellant. In accomplishing the settlement a release was taken from Hayden which provided:

'It is further understood and agreed that the payment of said amount is not to be construed as an admission of liability upon the part of said persons, firms or corporations hereby released, liability being by him or them expressly denied.'

Appellant's insurance attorney, on behalf of appellant, also entered into a stipulation of dismissal with Hayden's attorneys which read as follows:

'Comes now the plaintiff and the defendant, and this cause being fully settled and compromised, they do hereby stipulate and agree that this case may be and is hereby dismissed with prejudice at the costs of the defendant, but this stipulation shall in nowise effect the right of Lester J. Black to prosecute a claim vs. Perry Sanders, Cass County, Missouri, No. 27739.'

This stipulation was filed on November 9, 1962, and on the same date the federal court entered an order of dismissal with prejudice of Hayden's suit against appellant.

On January 28, 1963, respondent Sanders filed a motion for summary judgment in this action on the theory that the dismissal of Hayden's claim with prejudice operated as an adjudication on the merits and that the settlement of Hayden's claim operated to release respondent Sanders whose liability was based solely on the acts of Hayden, his servant. Thereafter, on February 7, 1963, appellant, with leave filed his second amended petition. On March 18, 1963, the court overruled respondent's motion for summary judgment to appellant's first amended petition. On June 18, 1963, respondent again filed a motion for summary judgment to appellant's second amended petition on the same theory that the dismissal of Hayden's claim against appellant, with prejudice, operated as an adjudication on the merits and that the settlement of Hayden's claim operated to release respondent Sanders. In opposition to the motion appellant filed an affidavit of the attorney of his insurance company who represented appellant in the claim of Hayden and the settlement thereof. By this affidavit the attorney stated that he was the attorney for appellant Black's insurance company; that he negotiated the settlement of Hayden's claim against Black in federal court; that he did not advise Black of the release he obtained from Hayden; that the stipulation of dismissal of the Hayden claim contained as agreement that the dismissal would in no way affect the right of Black to prosecute his claim against Sanders in Cass County Circuit Court, and that he did not represent Black personally.

Appellant also filed his own affidavit in opposition to the motion in which he stated that his insurance company attorneys removed the case Hayden filed against him to federal court and later settled said suit; that the settlement and stipulation of dismissal were made without notice to him and without his knowledge; that he first learned that the case had been settled on February 12, 1963, and that he had never at any time ratified or adopted the settlement or stipulation of dismissal.

On September 13, 1963, the court sustained respondent's motion for summary judgment. After an unavailing motion to set aside judgment or to grant a rehearing appellant filed an appeal to this court. This appeal was dismissed as being premature because the judgment of the trial court was not final as it did not also dispose of respondent's counterclaim which was still pending at that time. Thereafter, respondent's counterclaim having been dismissed, appellant again appeals from the trial court's decision sustaining respondent's motion for summary judgment directed to appellant's second amended petition.

Appellant contends that his present cause of action against respondent Sanders was not barred by the order and stipulation of dismissal with prejudice in the case maintained by Hayden in federal court because the stipulation specifically reserved the right to maintain this action against respondent. Respondent answers this contention by saying that the dismissal, with prejudice, of the claim of Hayden operates as an adjudication on the merits and when appellant settled Hayden's suit against him he gave up any rights that he might have to sue Hayden based on Hayden's negligence and that a release of Hayden from liability would serve to release respondent Sanders whose liability was based solely on the negligent acts of his servant, Hayden. Respondent relies primarily on the rule applied in Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, and Max v. Spaeth, Mo.Sup., 349 S.W.2d 1, and cases from other jurisdictions which have applied the rule in the Max case.

Respondent's contention avoids giving meaning to the settlement and the stipulation filed dismissing Hayden's claim against appellant and emphasizes only the dismissal provision of the stipulation. In the situation presented here it appears that the rule applied in Max v. Spaeth, supra, and Keller v. Keklikian, supra, relied upon by respondent is not applicable. The circumstances presented by this record are governed by the rule that '(a) liability insurer's settlement of a claim against the insured, made without the insured's consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.' Pierson v. Allen, Mo.Sup., 409 S.W.2d 127, 129; Portell v. Pevely Dairy Co., Mo.Sup., 388 S.W.2d 790, 792; Kirtley v. Irey, Mo.Sup., 375 S.W.2d 129, 134.

In considering the effect of the settlement and dismissal of the claim of Hayden against appellant it is apparent from this record that appellant was...

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8 cases
  • Grand Motors, Inc. v. Ford Motor Co., 80-0587CV-W-0
    • United States
    • U.S. District Court — Western District of Missouri
    • December 21, 1982
    ...language in the release itself. Liberty v. J.A. Tobin Construction Co., Inc., 512 S.W.2d 886, 890 (Mo.App.1974); Black v. Sanders, 414 S.W.2d 241, 244-245 (Mo.1967).8 Application of the parol evidence rule, the court observed, prevented a party from introducing extrinsic proof of intent. Se......
  • Joel Bianco Kawasaki v. Meramec Valley Bank
    • United States
    • Missouri Supreme Court
    • July 23, 2002
    ...668 S.W.2d at 75 ("suit is barred as [it was] a compulsory counterclaim to the hospital's original suit ...".); Black v. Sanders, 414 S.W.2d 241, 244 (Mo.1967) (under circumstances of that case, failure to file a counterclaim should not act as a bar); Brinkmann v. Common School Dist. No. 27......
  • Hoevelman v. Reorganized School Dist. R2 of Crawford County, 8797
    • United States
    • Missouri Court of Appeals
    • July 26, 1968
    ...for purposes of appeal. 4 This is also the rule in Missouri. Barnett v. Barnett, Mo.App., 413 S.W.2d 1, 2(1); cf. Black v. Sanders, Mo., 414 S.W.2d 241, 245(5). For the reasons stated, plaintiff's motion to dismiss is sustained and the appeal is ordered dismissed. HOGAN, P.J., and STONE, J.......
  • Swope v. General Motors Corp.
    • United States
    • U.S. District Court — Western District of Missouri
    • February 9, 1978
    ...reservation of plaintiff's rights to proceed against some generally or specifically described entity or entities. See, Black v. Sanders, 414 S.W.2d 241 (Mo.1967); Birmingham v. Kansas City Public Service Co., 235 S.W.2d 322 Secondly, the declaration of purpose clause is determinative. This ......
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