Clark v. Booth, WD

• Decision Date: 20 September 1983
• Docket Number: No. WD,WD
• Citation: 660 S.W.2d 316
• Parties: Terri L. CLARK, nee Tanner, Appellant, v. David E. BOOTH, Respondent. 34075.
• Court: Missouri Court of Appeals

Page 316

660 S.W.2d 316

Terri L. CLARK, nee Tanner, Appellant, v. David E. BOOTH, Respondent.

No. WD 34075.

Missouri Court of Appeals Western District.

Sept. 20, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 15, 1983.

Application to Transfer Denied

Dec. 20, 1983.

Sylvester Powell, Jr., Kansas City, for respondent.

Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

On December 13, 1979 appellant, while a passenger in the respondent's automobile suffered injuries as a result of a collision between that car and one owned and operated by Mary Burton. On September 8, 1980 she settled with Burton for $10,000, that being the limit of Burton's insurance policy. She executed a release captioned "Release in Full of All Claims and Rights", releasing Raymond and Mary Burton,

their principals, agents, representatives and insurance carriers from any and all rights, claims, demands and damages of any kind, known or unknown, existing or arising in the future, resulting from or related to personal injuries death or property damage, arising from an accident that occurred on or about the 13th day of December, 1979, at or near Kansas City, Missouri.

The release also contained the following statements:

I understand that this is a compromise settlement of all my claims of every nature and kind whatsoever arising out of the accident referred to above, but is not an admission of liability. I understand that this is all the money or consideration I will receive from the above described parties as a result of this accident. I have read this release and understand it.

On May 5, 1981 appellant filed a petition against respondent Booth praying for damages for injuries of $125,000, and claiming medical expenses in excess of $10,000. The respondent denied negligence in his answer filed on May 23, 1981. In answers to respondent's interrogatories of August 14, 1981 appellant told of the $10,000 settlement. On May 21, 1982 the respondent filed a motion to amend his answer to include as an affirmative defense the Burton settlement and that the release was general and operated to release respondent and all others from any liability. The court's sustaining respondent's motion on June 7, 1982 is appellant's first point of error.

The respondent then filed a motion for summary judgment based upon the settlement's effect of barring all claims of appellant arising out of the accident. Summary judgment was granted on July 12, 1982, the court finding the release of one joint tortfeasor in the incident out of which the litigation arose, without reservation to proceed against another joint tortfeasor, released all and barred the action against respondent. This judgment gave rise to the appellant's second point of error.

In her first point appellant states that respondent should not have been allowed to amend his answer three weeks prior to a trial setting after having the knowledge of the release for some ten months before raising the affirmative defense. She says she "expended great time and money investigating the case, conducting discovery and preparing for trial" and it worked an injustice to allow respondent to wait so long to assert the effect of the release. Rule 55.33(a) allows a party to amend his pleading by leave of court which "shall be freely given when justice so requires." The permitting of amendment to pleadings is wholly discretionary with the trial judge and not to be disturbed on appeal unless such discretion has been palpably and obviously abused. Harris v. Associated Dry Goods Corp., 612 S.W.2d 389, 390 (Mo.App.1981); Kopff v. Miller, 501 S.W.2d 532, 536 (Mo.App.1973). The trial court's ruling here is not an abuse of discretion. Appellant under local Rule 33.5 had 10 days to oppose and file suggestions to respondent's request for leave to amend. No extension of time to file was requested by her--she filed suggestions in opposition on June 12th, 22 days from the filing of the motion. The first point is ruled against her.

Appellant's other point is of trial court error in granting summary judgment since the release "did not operate as a general release", and that she should be allowed to present evidence as to her intent in executing the Burton release and, after so doing the respondent then had the burden of showing he was thereby released.

Appellant recognizes that at common law the release of one joint tortfeasor released all, and by statute Missouri, in Section 537.060 Revised Statutes of Missouri 1978 in allowing contribution among tortfeasors has not affected the rule of only one satisfaction for an injury or damages suffered, Liberty v. J.A. Tobin Construction Co. Inc., 512 S.W.2d 886, 889 (Mo.App.1974). The rule in Liberty, "... is based upon the sound principle that an injured person's right to recover for his injuries, whether caused by one or more wrongdoers, is basically single," and if satisfaction is received from one whether by settlement or court action he cannot recover from the other. Id. at 889-90. The state of the law in this area is further explained in Liberty that...