Farrell v. Kingshighway Bridge Co.

• Decision Date: 07 June 1938
• Docket Number: 24,525
• Citation: 117 S.W.2d 693
• Parties: DAWSON M. FARRELL, (Plaintiff), RESPONDENT, v. KINGSHIGHWAY BRIDGE COMPANY, a corporation, (Defendant), APPELLANT, GRANER CONTRACTING COMPANY, and AMERICAN TELEPHONE & TELEGRAPH COMPANY, (Defendants)
• Court: Missouri Court of Appeals

117 S.W.2d 693

DAWSON M. FARRELL, (Plaintiff), RESPONDENT, v. KINGSHIGHWAY BRIDGE COMPANY, a corporation, (Defendant), APPELLANT, GRANER CONTRACTING COMPANY, and AMERICAN TELEPHONE & TELEGRAPH COMPANY, (Defendants)

No. 24,525

Court of Appeals of Missouri, St. Louis

June 7, 1938

Appeal from the Circuit Court of the City of St. Louis. Division No 8. Hon. Frank Landwehr, Judge.

AFFIRMED.

Jefferson D. Hostetter, PRESIDING JUDGE. Becker and McCullen, JJ concur.

OPINION

Jefferson D. Hostetter

This action was commenced on the 30th day of October, 1934, in the circuit court of the city of St. Louis by the filing of plaintiff's petition, asking damages in the sum of $ 51,100.00, for personal injury and property damage growing out of a collision, which occurred in the night time, with an unlighted barricade, on a toll road in Illinois, belonging to defendant Kingshighway Bridge Company.

Suit was brought in the circuit court of the city of St. Louis so that service could be had on the Kingshighway Bridge Company and the Graner Contracting Company, both being Missouri corporations.

There were originally three defendants named in the petition appellant, Kingshighway Bridge Company, the Graner Contracting Company, and the American Telephone and Telegraph Company. At the close of all the evidence, the court sustained a demurrer as to the defendant American Telephone and Telegraph Company, and a non-suit was taken by plaintiff as to that defendant, and the cause was submitted to the jury as to defendants Kingshighway Bridge Company and the Graner Contracting Company.

It further appears that a written agreement between plaintiff and defendant Graner Contracting Company was made while the case was being argued to the jury and that the counsel actively engaged in the trial of the case knew nothing of the agreement, nor did the court, nor any of the jurors, and that the agreement was signed up and that the amount of money, to with: $ 3500, mentioned therein, was paid by the Graner Contracting Company, to the plaintiff, Dawson M. Farrell, before the jury brought in its verdict. The agreement is as follows:

"This agreement made and entered into this 11th day of December, 1935, by and between Dawson Farrell and Graner Contracting Company, a corporation, witnesseth:

"Whereas, a certain suit being cause No. 207,855 of the Circuit Court of the City of St. Louis, wherein Dawson Farrell is plaintiff and said Graner Contracting Company, a corporation, American Telephone and Telegraph Company, a corporation, and Kingshighway Bridge Company, a corporation, are defendants, has been on trial in Division 8 of the Circuit Court of St. Louis, Missouri, for the past three days and has now been submitted to the jury and the jury has not yet returned its verdict.

"And whereas it has been agreed by and between the parties hereto that notwithstanding any judgment that may be rendered in said cause, the said Dawson Farrell enters into the following covenants for the consideration hereinafter named:

"1. That for and in consideration of the premises and the payment to the said Dawson Farrell of thirty-five hundred ($ 3500.00) dollars by the said Graner Contracting Company, the receipt of which is hereby acknowledged, and the further payment of one-third of the costs accrued in said suit in the event that said Dawson Farrell shall be liable therefor, I, the said Dawson Farrell, hereby covenant and agree that I will not at any time nor shall anyone for me or on my behalf levy or sue out an execution or executions against the said Graner Contracting Company, a corporation, on such judgment.

"2. And I, the said Dawson Farrell, hereby further covenant and agree that I will indemnify and hold harmless the said Graner Contracting Company, a corporation, against any and all such execution or executions against any and all contribution by reason of such judgment and against any and all liability for indemnity by reason of any such judgment.

"It being the intent of this covenant that the said Graner Contracting Company, its representatives and assigns shall never at any time be liable, beyond the consideration expressed in this instrument, by reason of said aforementioned injuries or suit or judgment rendered therein, or any suit or suits filed by reason thereof.

(Signed) D. M. Farrell.

(Signed) Geers & Geers and

Buckley & Buckley,

Attorneys for Dawson Farrell."

The jury returned its verdict, finding the issues in favor of plaintiff, Dawson M. Farrell, and against the defendants, Kingshighway Bridge Company, and Graner Contracting Company, assessing plaintiff's damages in the sum of $ 2500.

Plaintiff, within the time prescribed, filed his motion for a new trial, and, as one of his grounds, urged that the verdict of $ 2500 was wholly inadequate. The defendant, Kingshighway Bridge Company, filed no motion for a new trial, but did file its motion to strike plaintiff's motion for a new trial, and for satisfaction of judgment.

Plaintiff's motion for a new trial, was, by the court, overruled, and judgment was entered for plaintiff and against the Kingshighway Bridge Company and the Graner Contracting Company in the sum of $ 2500 and costs. The plaintiff caused an execution to issue on this judgment and it was levied on certain property of the Kingshighway Bridge Company, and the latter filed its motion to quash the execution on the ground that plaintiff had received from its co-defendant, the Graner Contracting Company, the sum of $ 3500 on account of the action and the judgment rendered thereon, and that by reason of said payment the said judgment had been and was fully satisfied, and that the execution and levy thereof was solely without warrant, not lawful and should be stayed, set aside, quashed and for naught held.

The trial court overruled the Kingshighway Bridge Company's said motion to quash and thereupon the Kingshighway Bridge Company duly perfected its appeal to this court.

The final paragraph of the signed stipulation as to facts, by counsel for plaintiff and defendants, reads as follows:

"It is further stipulated and agreed that the sole question presented upon Kingshighway Bridge Company a motion to quash said execution and levy is whether or not the payment aforesaid made to plaintiff pursuant to and as consideration for the agreement aforesaid made and entered into between plaintiff and defendant Graner Contracting Company, constitutes a payment of said judgment, and whether or not defendant Kingshighway Bridge Company is entitled as a matter of law to assert said payment as satisfaction of said judgment and as a ground for setting aside and quashing the execution aforesaid and the levy thereof as aforesaid."

The motion of defendant Kingshighway Bridge Company to quash the execution and levy, verification omitted, reads as follows:

"Comes now the defendant Kingshighway Bridge Company and moves the Court to stay, set aside and quash the execution heretofore issued upon the judgment entered in the above-entitled cause, and heretofore levied upon and seized the property of defendant Kingshighway Bridge Company, and for ground for its motion defendant states that the judgment aforesaid is a joint and several judgment against this defendant and defendant Graner Contracting Company, a corporation, wherein it was adjudged that plaintiff have and recover from said defendants the sum of twenty-five hundred ($ 2500.00) dollars, and defendant states that plaintiff has received from its co-defendant Graner Contracting Company the sum of thirty-five hundred ($ 3500.00) dollars on account of this action and the judgment therein rendered. Defendant states that by reason of said payment said judgment has been and is fully satisfied and said execution and the levy thereof is wholly without warrant in law and should be stayed, set aside, quashed and for naught held."

There is no infirmity or defect, actual or claimed, in the judgment, the execution or the levy, and, prima facie, a motion to quash the execution and the levy, or either of them, should not be sustained. Cope v. Snider, 99 Mo.App. 496, 74 S.W. 10.

The right of contribution by a joint tort feasor does not arise under the statute until a joint judgment is had, and, until then one...