City of Chattanooga v. Ballew

• Decision Date: 16 March 1961
• Citation: 354 S.W.2d 806,49 Tenn.App. 310
• Parties: CITY OF CHATTANOOGA, Plaintiff in Error, v. Harley BALLEW, Defendant in Error. 49 Tenn.App. 310, 354 S.W.2d 806
• Court: Tennessee Court of Appeals

Page 806

354 S.W.2d 806

CITY OF CHATTANOOGA, Plaintiff in Error, v. Harley BALLEW, Defendant in Error.

49 Tenn.App. 310, 354 S.W.2d 806

Court of Appeals of Tennessee, Eastern Section.

March 16, 1961.

Certiorari Denied by Supreme Court May 26, 1961.

[49 TENNAPP 311] E. K. Meacham, Chattanooga, for plaintiff in error.

Robert H. Crawford, Chattanooga, for defendant in error.

McAMIS, Presiding Judge.

Plaintiff Ballew sued the City of Chattanooga for personal injuries and property damage growing out of a collision between plaintiff's automobile, driven by him, and a cruiser of the City driven by [49 TENNAPP 312] Police Officer Mallicoat in line of duty. The question of governmental immunity has heretofore been determined by the Supreme Court adversely to the City, 205 Tenn. 289, 326 S.W.2d 466, and is no longer involved.

There was a verdict and judgment for $2700.00 for personal injuries and $700.00 for damages to plaintiff's automobile, from which the City has appealed. The first and principal assignment of error is that the Court erred in sustaining plaintiff's motion to strike the City's special plea setting up the defenses of res judicata and accord and satisfaction growing out of the compromise and settlement by plaintiff's insurance carrier of a suit brought against plaintiff by Officer Mallicoat for personal injuries sustained by Mallicoat in this same collision. The plea is based upon the following final judgment entered in that case:

'Came the parties, by their attorneys, and announced to the Court that they have fully and finally compromised and settled out of Court all matters in controversy between them in this cause.

'It is, therefore, ordered, adjudged and decreed by the Court that this cause be and the same is hereby dismissed with full prejudice to the plaintiff, and the costs of the cause are taxed against defendant for which execution may issue.'

Under the evidence heard on the motion to strike hereinafter outlined, we think the Court was correct in holding that the foregoing judgment is not conclusive of plaintiff's right to maintain the present suit.

At the time of the accident plaintiff carried on his car a policy of public liability insurance. Attorneys employed[49 TENNAPP 313] by the insurer appeared as counsel for plaintiff herein in the suit brought by Mallicoat. Plaintiff testified that he did not employ the attorneys who appeared for him in that case and did not learn of the compromise and settlement of Mallicoat's claim until after the above copied judgment was entered. While the policy does not appear in the record, it is tacitly conceded that the insurance carrier had a right to defend and settle any claim brought against plaintiff as its insured. Neither plaintiff nor any attorney representing him personally appeared in the case or approved the judgment of dismissal.

Chapter 318, Acts of 1955, now T.C.A. Sec. 23-3001, provides:

'Express consent required for settlements.--In any tort action, prior settlement of damages made on behalf of the plaintiff by another, in exchange for a release executed by or on behalf of the defendant, shall constitute no bar to the plaintiff's action, and proof by the defendant of such settlement and release shall be inadmissible, unless it be shown that such settlement made on behalf of the plaintiff was with the express consent of the plaintiff given in writing, after the cause of action arose.'

In behalf of defendant it is said that, while the statute would apply to evidence of a simple release effected by an insurance carrier, it can not under its terms be applied to a judgment. We can not agree. A settlement and release of liability for a claim sounding in tort may be effected either by an instrument in pais or by an agreed judgment or decree. The same reason which would make ineffective a release in pais would apply with equal force to a release and compromise by judgment. We can find [49 TENNAPP 314] nothing in the statute making it applicable to one and not to the other.

Even in the absence of statute, an insurer's settlement of a suit brought against its insured does not bar the insured's claim either on the principle of res judicata or estoppel in the absence of participation in the settlement by the insured. American Trust & Banking Company v. Parsons, 21 Tenn.App. 202, 108 S.W.2d 187; U. S. A. C. Transport, Inc. v. Corley, 5 Cir., 202 F.2d 8; De Carlucci v. Brasley, 16 N.J.Super. 48, 83 A.2d 823; Owen v. Dixon, 162 Va. 601, 175 S.E. 41. See also 29 A Am.Jur. 554, Insurance, Section 1442 The minority view appears to be supported by Long v. Union Indemnity Company, 277 Mass. 428, 178 N.E. 737, 79 A.L.R. 1116, cited and discussed by this Court in Jetton v. Polk, 17 Tenn.App. 395, 68 S.W.2d 127. The Jetton case in principle sustains the holding of the trial judge in this case although the release and settlement there involved was not reduced to judgment. The opinion, however, by way of distinguishing the Massachusetts holding, differentiates between a case involving a simple release and a settlement in the form of a judgment. What was there said is not to be taken as approving the minority view which to us seems unsound, illogical and unjust.

If given the construction urged by defendant the effect of T.C.A. Sec. 23-3001 would be to align Tennessee with the minority view. We can find nothing in the Act to support that construction. On the contrary, we think its spirit and purpose was to adopt the majority view.

It is next insisted the Court erred in not directing a verdict for defendant on the ground that Mallicoat [49 TENNAPP 315] was guilty of no negligence and that plaintiff was guilty of contributory negligence in making a left turn in violation of T.C.A. Sec. 59-829 requiring a driver within an intersection intending to make a left turn to yield the right of way 'to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.'

The collision out of which this suit developed occurred in Chattanooga at the right angle intersection of Eleventh and...