England v. Yellow Transit Co.
| Decision Date | 09 December 1949 |
| Docket Number | No. 6880,6880 |
| Citation | 225 S.W.2d 366,240 Mo.App. 968 |
| Parties | ENGLAND v. YELLOW TRANSIT CO. |
| Court | Missouri Court of Appeals |
Elvin S. Douglas, Bolivar, F. B. Freeman, Springfield, for appellant.
Ruark & Ruark, Neosho, Ray England, Neosho, Scott & Scott, Joplin, L. Cunningham, Bolivar, for respondent.
This is an appeal from the action of the Circuit Court of Polk County in overruling a motion of the Yellow Transit Company (Appellant) to set aside a judgment of dismissal of its counterclaim.
The facts leading up to the Court's action are:
On June 12, 1948, Josephine England filed in the Greene County Circuit Court a suit against appellant and one Ernie Davenport alleging that Davenport, while driving for appellant on U. S. Highway 66, negligently ran his truck into plaintiff's truck, driven by one Floyd Severs, and damaged it in the sum of $1500.00 and that she suffered further damages by loss of the use of the truck in the sum of $500.00. Her driver, so she alleged, was using the highest degree of care at the time of the accident and the collision was the result of defendant's negligence.
Defendant Davenport, on January 17, 1948, filed an answer denying negligence on his part and asserting that the collision was caused by the negligence of plaintiff's driver and the damages were a result of such negligence. He added a counterclaim for personal injuries to himself, etc., in the sum of $5000.00, praying judgment for the same.
The Yellow Transit Company on the 6th day of February, 1948, also answered, denying any negligence on the part of its driver or itself and in its counterclaim alleging that its driver, Ernie Davenport, at the time of the collision was exercising the highest degree of care and was traveling on the right hand side of the road at a reasonable rate of speed and that plaintiff's driver negligently collided with its truck causing the collision and resultant damages. It asked for $6500.00 as compensation therefor.
Replies to both answers and counterclaims were filed by plaintiff denying all the allegations therein. A change of venue was taken and the case sent to Polk County. On February 2, 1949 the following stipulation was filed: 'In consideration of the payment of the sum of Five Hundred Dollars ($500.00), the receipt of which is hereby acknowledged by plaintiff, it is stipulated and agreed between the parties that plaintiff's petition, cause of action or claim against the defendants shall be and is hereby dismissed, with prejudice, and at the cost of the defendants.
'It is expressly understood and agreed that the counterclaim of defendant Ernie Davenport is still outstanding and pending against plaintiff and is in no way affected by this dismissal.'
Upon this stipulation, the Court, on February 7, 1949, rendered judgment as follows:
'Now at this day, comes the parties, both Plaintiff and Defendants, by their respective Attorneys, by leave of Court, and file herein their stipulation for dismissal of Plaintiff's petition, and on their Motion and in accordance with said stipulation, it is ordered by the Court that the petition of Plaintiff be dismissed with prejudice, at the cost of Defendants, as per stipulation filed.
'It is further ordered by the Court that the counterclaim of Yellow Transit Company, and of Ernie Davenport is still outstanding and pending against Plaintiff and is no way affected by this dismissal.'
On May 18, 1949, the plaintiff filed a motion to dismiss the Yellow Transit Company counterclaim, alleging the facts above recited, and further, '* * * that by said written agreement of compromise and settlement, defendant Yellow Transit Company procured the dismissal of plaintiff's said petition and its cause of action therein alleged against the defendants; that by reason of the fact that defendant Yellow Transit Company's said alleged counterclaim against the plaintiff was not excepted from the terms of said written agreement of compromise and settlement, as was the said alleged counterclaim of the defendant Ernie Davenport, and by reason of the fact that the said alleged counterclaim of defendant Yellow Transit Company was filed by it in the above entitled cause and both plaintiff and defendant Yellow Transit Company knew that defendant Yellow Transit Company had filed its said alleged counterclaim against the plaintiff before the said written agreement of compromise and settlement was entered into and filed herein, as aforesaid, the said alleged counterclaim of the defendant Yellow Transit Company was settled by said written agreement of compromise and settlement, and by reason of the premises, the defendant Yellow Transit Company is now estopped from prosecuting said alleged counterclaim against the plaintiff. * * *'
On the 23rd day of May, 1949, the plaintiff also filed a motion for a nunc pro tunc order to correct the court's judgment of dismissal on the ground that it was broader than the stipulation of dismissal in that it recited that the counterclaim of the Yellow Transit Company would be left pending. It asked the Court to correct the judgment of dismissal by striking out the words 'Counterclaims of defendants Yellow Transit Company and of Ernie Davenport left pending' and to insert in lieu thereof the words 'Counterclaim of Ernie Davenport left pending.'
In support of this motion, plaintiff introduced the petition, the answers, counterclaims, and replies, the stipulation and judgment of dismissal. It was admitted that Ernie Davenport was represented by Mr. Flay Randle, an attorney, and that the Yellow Transit Company was represented all the time by the law firm of Neale, Newman, Freeman and Wampler, by F. B. Freeman, an attorney. The minutes made by the Court in his docket were also introduced in evidence and were:
Mr. Freeman, over the objection of plaintiff testified that at the time the settlement was made nothing was said about the counterclaim, in fact the witness had forgotten that one had been filed.
He further testified: 'And, after it (the stipulation) was filed, and the money was paid, I sent it to Mr. Elvin Douglas, (co-counsel at Bolivar) and I also wrote him a letter and told him * * * that to my recollection nothing had been said about the counterclaim, but, as I understood the Code, unless it was expressly dismissed it would still be left pending; and I asked Mr. Douglas to have the Court make the entry that the two counterclaims were left pending; that is entirely my responsibility, I felt like I had that right under the law; * * *.'
On February 8, 1949, the insurance carrier of plaintiff, through its attorneys, was contending with...
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...See also the general review of this subject contained in Meansing v. Sturgeon, 250 Iowa 918, 97 N.W.2d 145. In England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, it was held that the release of a cause of action, without taking into consideration the counterclaim, estopped the ......
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Rudloff v. Johnson, 16121.
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