Faught v. Washam

• Citation: 329 S.W.2d 588
• Decision Date: 14 September 1959
• Docket Number: No. 47064,No. 2,47064,2
• Parties: Alfred Eugene FAUGHT, by next friend George Faught, Plaintiff-Respondent, v. William Warner WASHAM, Defendant-Appellant
• Court: United States State Supreme Court of Missouri

Page 588

329 S.W.2d 588

Alfred Eugene FAUGHT, by next friend George Faught, Plaintiff-Respondent, v. William Warner WASHAM, Defendant-Appellant.

No. 47064.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1959.

Motion for Rehearing or to Transfer to Court en Banc or to

Modify and Clarify Opinion Denied Dec. 14, 1959.

L. F. Cottey, Lancaster, Chapman & Chapman, Chillicothe, for appellant.

M. E. Montgomery, Milan, Edwards, Hess & Collins, Macon, for respondent.

James E. Reeves, Caruthersville, amici curiae.

Walter A. Raymond, Kansas City, amici curiae.

A. P. STONE, Jr., Special Judge.

This is the second appeal in a damage suit for personal injuries alleged to have been sustained in a vehicular accident about 1:45 A.M. on October 15, 1953, at the East Fork bridge on U. S. Highway 36 about 2.7 miles west of Macon, Missouri. The first trial resulted in a jury verdict for defendant; but, upon appeal, the judgment was reversed and the cause was remanded because of an erroneous instruction. Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78. Upon retrial, another jury found for plaintiff and assessed his damages at $20,000. Defendant appeals.

The East Fork bridge, 365 feet in length, had side railings of two-inch iron pipe; and, from the east end of the bridge, guardrails 40 feet in length angled onto the shoulders of the highway. The roadway on Highway 36 and the bridge floor were of concrete and 20 feet in width. East of the bridge, the highway was perfectly straight to the top of a hill some 1,800 feet distant; and, for about 350 feet east of the east end of the bridge, the highway was practically level. The accident occurred on a dark, clear night when the pavement was dry.

Plaintiff, then 20 years of age and alone at the time, was driving his 1941 Mercury sedan, olive drab in color with whitewall tires, in a westerly direction of Highway 36 at a speed of 60 to 65 miles per hour. As he approached the bridge, he 'dozed off to sleep' and his automobile veered to his left-hand or south side of the roadway, first shearing off the guardrail and then tearing down 105 feet of the south bridge railing before coming to a stop on the bridge, crosswise of the highway, with the rear end of the Mercury about one foot from the north bridge railing and with the front end four or five feet from the south bridge railing. The account of plaintiff (the sole witness on this subject), curiously but convincingly credible to the jury, was that this violent encounter with the guardrail and bridge railing damaged his Mercury only to the extent of having 'blowed out' its left front tire, 'mangled up' its left front fender, and 'knocked out' its lights, and left plaintiff in the driver's seat physically unscathed and mentally alert. Continuing, plaintiff testified that, 'just seconds' after the Mercury came to a stop on the bridge, he observed the headlights of an approaching west-bound automobile (subsequently identified as defendant's 1953 Buick Roadmaster sedan), then about 600 to 700 feet east of the bridge. As plaintiff was getting out of his unlighted Mercury, with his left hand on the left front door (then open), his right hand on the steering wheel, his left foot on the left running board, and his right foot 'by the accelerator,' the right rear portion of defendant's west-bound Buick struck the left front portion of the standing Mercury with the result (so plaintiff said) that 'the front fender came through the bottom and caught my (right) foot, brought it back under the seat,' pinning plaintiff in his automobile until, seeing 'the dashboard all tore out and * * * what I thought was smoke * * *, I reached down and pulled my foot from behind that seat.'

Riding with defendant, returning from St. Louis to his home in Marceline, Missouri, were his wife, her mother, and two other ladies, one of whom was killed in this accident. Defendant's version of the accident was that, when his west-bound Buick Roadmaster, then traveling 60 to 70 miles per hour with the headlights on 'bright,' reached a point between 100 and 130 feet from the east end of the bridge, 'I saw something that gave me the impression of being a piece of paper, something white in my lane,' which 'I couldn't identify * * * completely'; that, 'just a second after that,' when 'possible 70 or 80 feet' from the east end of the bridge and traveling 60 to 65 miles per hour, he observed plaintiff's unlighted Mercury on the bridge, immediately applied the power brakes on the Buick, and swerved to his left or to the south; and that, 'bouncing' on the loose pipe and debris scattered over the bridge floor by the Mercury, defendant lost control of his Buick, its left front wheel struck the low concrete curb along the south side of the bridge floor, the right doors of the Buick 'flew open,' three of the four passengers in the Buick were thrown onto the bridge floor, and the Buick went off the south side of the bridge and came to rest on its left side, headed west, on the ground about 8 feet below the bridge floor.

Plaintiff's theory, apparently accepted by the jury, was that, when the left front wheel of defendant's west-bound Buick struck the concrete curb on the south side of the bridge floor, the Buick was whirled in a counter-clockwise direction and its right rear portion was thrown violently into the left front portion of plaintiff's Mercury, causing the major portion of the damage to the Mercury and all of plaintiff's injuries. Although defendant and his surviving passengers testified (as defendant put it) that 'to the best of my knowledge at this time I would say' that the Buick went off the bridge before it reached plaintiff's Mercury and that there was no collision between the two vehicles, defendant's counsel frankly concede that the jury verdict 'has resolved any dispute as to whether the two cars collided.'

Defendant's initial complaint on this appeal, i. e., that the trial court erred in overruling his motion to dismiss plaintiff's petition, requires a brief review of the pleadings. Following remand of the case, to-wit, on November 15, 1957, defendant filed, for the first time, a counterclaim alleging primary negligence on the part of plaintiff and seeking the aggregate sum of $12,857 for personal injuries and property damage. To that counterclaim, a reply was interposed on November 29, 1957, in which a release in conventional form, executed by defendant and his wife under date of January 22, 1954 (prior to institution of this action of March 15, 1954) for a recited consideration of $1,170, was pleaded as 'a complete defense' to defendant's alleged cause of action. Defendant thereupon filed a motion to dismiss plaintiff's petition, in which defendant admitted execution of said release and asserted that plaintiff, by pleading it in his reply, had ratified and adopted the release and that, since it contained no reservation of right to sue defendant, the release constituted 'a full compromise and accord and satisfaction between the parties' and 'merged and extinguished' the conflicting claims of the parties to the settlement, thus precluding plaintiff from prosecuting this suit.

At a separate hearing before the court on defendant's motion to dismiss, the uncontradicted evidence was that an adjuster for plaintiff's liability insurance carrier had made the settlement payment of $1,170 to defendant and had obtained the release of January 22, 1954, without the prior knowledge, authorization or consent of plaintiff; that, in fact, plaintiff had not heard of this settlement payment or release until informed of them by his counsel on December 14, 1957; and, that he had never authorized his insurer 'or anyone else to convey away or extinguish' his cause of action against defendant. Plaintiff further stated that he had not known of defendant's counterclaim or the reply thereto until likewise informed of them by his counsel on December 14, 1957; that he had not authorized the filing of the reply; and, that he did not ratify or adopt the release pleaded in the reply. One of plaintiff's attorneys testified that, since he was aware of plaintiff's liability insurance coverage, realized that the limit of liability of plaintiff's insurer was in excess of the damages sought in defendant's counterclaim, and knew that the insurer had a policy obligation to defend against the counterclaim, he had reported to the insurer concerning the counterclaim and had been authorized and directed by the insurer 'to represent them in the defense of that counterclaim.' So, without notifying or consulting with plaintiff, counsel (so he said) filed the reply to defendant's counterclaim on behalf of plaintiff's insurer 'as their attorney and pursuant to the provisions of (plaintiff's) insurance policy giving (his insurer) the exclusive right to control the defense of that counterclaim.' At the conclusion of the hearing on December 28, 1957, defendant's motion to dismiss plaintiff's petition was overruled.

On appeal, defendant earnestly reasserts that plaintiff ratified and adopted the release by pleading it in his reply and by refiling said reply when defendant's counterclaim was refiled on January 4, 1958, and that the ratified release 'constitutes an accord and satisfaction between the parties. the legal effect of which is to merge and bar the future assertion of their conflicting claims and defenses.' Able counsel for the respective parties (whose excellent briefs reflect the industry and intelligence of their authors) have cited no factually analogous case in any jurisdiction, and our research has revealed none, in which this novel point has been ruled. True, we find cases in which the facts have invoked application of the principle that the making of a settlement without express reservation of rights estops any immediate party to the settlement from subsequently prosecuting a claim arising out of the same accident. ¹ But, in each of those cases (with a single exception to be noted), '(t)h...