Denny v. Mathieu

Decision Date09 March 1970
Docket NumberNo. 53379,53379
Citation452 S.W.2d 114
PartiesIrene DENNY, Plaintiff-Appellant, v. John P. MATHIEU, d/b/a 7-Up Bottling Company, Defendant-Respondent.
CourtMissouri Supreme Court

Orville C. Winchell, Lebanon, Orville Richardson, St. Louis, R. Jack Garrett, West Plains, for plaintiff-appellant.

Farrington, Curtis & Strong, E. C. Curtis, Thomas Strong, Springfield, for defendant-respondent.

FINCH, Judge.

Plaintiff, a passenger in her husband's automobile, sued to recover $35,000 for personal injuries received when the car collided at night with an unlighted truck which was stopped with the back end protruding out into the lane of the highway in which the automobile was traveling. The suit was filed against both the owner of the truck, Mathieu, and the driver, Rhodes. At the conclusion of all the evidence, plaintiff dismissed without prejudice as to Rhodes. Subsequently, after colloquy between counsel as to the reason for and the effect of such dismissal, counsel for plaintiff, during final argument, in response to defendant's contention, announced that 'the case is dismissed as far as Rhodes is concerned with prejudice.' Argument then was concluded and the case submitted to the jury, which returned a verdict in favor of defendant Mathieu. Plaintiff's motion for new trial was overruled and she appealed.

Plaintiff asserts that alleged error in instructions and improper argument of counsel to the jury entitle her to a new trial. However, we first are confronted with and must decide the question raised on appeal by defendant that under the provisions of Supreme Court Rule 67.03, V.A.M.R., the dismissal of the case with prejudice as to defendant Rhodes operated as an adjudication on the merits in favor of Rhodes and against plaintiff, entitling Mathieu to judgment because he cannot be vicariously liable for acts of his employee which in effect have been determined to have been non-negligent.

An opinion was written herein in Division holding that the dismissal with prejudice as to Rhodes did amount to an adjudication on the merits as to fault and liability of Rhodes and that as a result Mathieu could not be vicariously liable. Max v. Spaeth, Mo., 349 S.W.2d 1, was cited as dictating that conclusion. Thereafter, the case was ordered transferred to the Court en Banc for reargument. We now reverse and remand for new trial.

At the outset, we start with the recognition that the law is well established 'that if a plaintiff's petition against two defendants states only a case of liability upon the principle of respondeat superior, then, if there is a verdict discharging the one defendant for whose negligence only it is sought to hold the other defendant, no judgment can be based thereon against either defendant, and if entered must be set aside.' Stoutimore v. Atchison, T. & S.F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658, 659; Lynch v. Hill, Mo., 443 S.W.2d 812; Goedecke v. Bi-State Development Agency of Mo.-Ill., Mo.App., 412 S.W.2d 189. Hence, if this case had been submitted to the jury against both Rhodes and Mathieu, and if the jury verdict had been in favor of defendant Rhodes, such verdict would have entitled Mathieu to judgment if, as recognized in Lynch v. Hill, supra, 443 S.W.2d l.c. 818, the trial was free of error.

The question presented on this appeal is whether, under the provisions of Rule 67.03, the dismissal by plaintiff with prejudice as to defendant Rhodes is equivalent to a jury verdict in his favor and constitutes a bar to plaintiff's right to proceed as against defendant Mathieu. The pertinent part of Rule 67.03 is as follows: '* * * A dismissal with prejudice operates as an adjudication upon the merits. * * *' It is defendant's contention that a voluntary dismissal with prejudice, such as occurred here, unaccompanied by any settlement of any kind, or any payment of any consideration, or the execution of any release or stipulation, constitutes, under the quoted language of Rule 67.03, an adjudication similar to a jury verdict that the servant Rhodes was not liable, and that necessarily Mathieu cannot be vicariously liable.

The only decision of this court cited by defendant in support of this contention is Max v. Spaeth, supra. In that case a car driven by Max collided with a truck belonging to Spaeth and driven by his employee, Wyatt. On February 2, 1959, Wyatt sued Max. After service and the filing of an answer, the suit was dismissed by a stipulation which recited that all matters and things in controversy in the case had been compromised and settled, and that it was agreed that the case should be dismissed with prejudice to any future action on account of the things alleged in plaintiff's petition. Meanwhile, on February 6, 1959, Max had filed an independent suit against Spaeth, to which an answer and counterclaim for truck damage was filed. Thereafter, a stipulation for dismissal of defendant's counterclaim was filed September 25, which recited that all things covered in the counterclaim had been compromised and settled, and that it was stipulated that the counterclaim should be dismissed with prejudice as to all matters contained in the counterclaim. It also provided that the plaintiff's cause of action should remain on the docket without prejudice. After the counterclaim was dismissed, an amended answer was filed by Spaeth in which he asserted a right to be discharged because (1) the stipulation filed in Wyatt's original suit released Wyatt from all claims so that Spaeth could not be vicariously liable, and (2) no counterclaim had been filed by Max in that suit. Judgment for Spaeth on motion for summary judgment was entered and was affirmed on appeal.

An examination of the opinion in Max discloses that the defense raised therein was based on language in the stipulation for dismissal which compromised and settled all matters and which was held to amount to a full release. The decision by this court is based on the language of that instrument. This is demonstrated by the language in the opinion which, after recognizing that a jury verdict in favor of a servant necessarily releases the master, says, 349 S.W.2d l.c. 3: 'Certainly the same rule should apply when the question of a servant's liability is finally determined by a release as when it is determined by a verdict.' The basis of the decision is disclosed again on the same page, when the court further says: 'We hold that the settlement of Wyatt's suit released plaintiff's claim against him and therefore released plaintiff's claim against his employer, the defendant herein.'

Is the Max case authority for the proposition that merely the entry of a dismissal with prejudice is in fact an adjudication on the merits which is comparable in effect to a jury verdict? Actually, the only statement in the opinion which might be so construed is this sentence, 349 S.W.2d l.c. 3: "A dismissal 'with prejudice' operates as an adjudication upon the merits.' Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, 1003.' 1 However, the fact is that the decision was not based on the above quoted sentence. This is shown by the sentence which immediately follows, l.c. 3: 'Therefore, when plaintiff settled Wyatt's suit against her, agreeing without any qualifications that 'all matters and things in controversy' had been 'adjusted, compromised and finally settled,' she gave up all rights she might have had to sue him on any claim based on his negligence. This with the agreement for dismissal 'with prejudice' amounted to a full release of Wyatt's liability to her.' This statement by the court demonstrates that the decision was based upon the instrument which the parties signed whereby they agreed upon a release.

An examination of decisions subsequent to Max v. Spaeth, supra, discloses that this court has not construed Rule 67.03 as meaning that dismissal of a case with prejudice necessarily and in all events amounts to an adjudication on the merits which is the equivalent of a jury verdict determining liability.

In Kirtley v. Irey, Mo., 375 S.W.2d 129, a collision occurred between Hammon's truck driven by Kirtley and an automobile driven by Irey. Kirtley and Hammon sued Irey for personal injuries and property damage. Irey answered and counterclaimed. Subsequently, the insurer for Hammon and Kirtley settled the Irey counterclaim for $2,000. A release was executed and the attorneys executed a stipulation dismissing the counterclaim with prejudice. Thereafter, defendant filed a motion for judgment on the pleadings on the basis that the action of attorneys for plaintiff's insurer in taking a general release and stipulating for a dismissal of the counterclaim with prejudice estopped and barred plaintiff from further prosecution of the suit. This motion was overruled, and the trial which followed resulted in a defendant's verdict. Thereafter, the trial court granted a new trial on account of an erroneous instruction. In affirming, this court held that the motion for judgment on the pleadings was properly overruled because the case falls within the rule that a liability insurer's settlement of a claim, made without assured's consent and not ratified by him, ordinarily will not bar an action by the assured against the person receiving the settlement on a claim arising out of the same state of facts.

Next, in Portell v. Pevely Dairy Co., Mo., 388 S.W.2d 790, Portell sued Pevely and its driver, Bannon, for injuries received in a collision between Pevely's truck and plaintiff's automobile. Bannon filed a counterclaim. The case was tried, resulting in a verdict for defendants on plaintiff's cause of action and for Bannon in the amount of $1,500 on his counterclaim. Plaintiff filed an unavailing motion for new trial with respect to both her claim and the counterclaim and then appealed. Thereafter, attorneys for plaintiff's insurer, acting without participation or consent by plaintiff or her own attorney, settled Bannon's...

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