Finley v. Smith
| Decision Date | 06 December 1943 |
| Docket Number | 38599 |
| Parties | R. H. Finley v. Chester E. Smith, Appellant |
| Court | Missouri Supreme Court |
Motion to Modify Opinion, Rehearing Denied and Motion to Transfer to Banc Overruled in Per Curiam Opinion Filed March 6, 1944.
Appeal from Saline Circuit Court; Hon. Robert D. Johnson Judge.
Reversed and remanded (with directions).
O H. Swearingen, Thomas M. Brandom and Owen C Rawlings for appellant.
(1) The court erred in assuming jurisdiction of this cause of action, the main object of which was to procure an injunction to prevent the prosecution of cause of action pending in the Jackson County, Missouri, Circuit Court. R.S. 1939, secs. 1136, 1665; Carthage Natl. Bank v. Poole, 141 S.W. l.c. 732; Pettus v. Elgin, 11 Mo. 411. (2) The court erred in assuming jurisdiction over Southwestern Greyhound Lines, Inc., and R. F. Hayes, and in attempting to give them relief. They were not parties to the cause of action. Wolz v. Venard, 253 Mo. 67, 161 S.W. 760; Congregation B'Nai Abraham v. Arky, 20 S.W.2d 899; Sutton v. Anderson, 31 S.W.2d 1027; Reney v. Reney, 117 S.W.2d 698; Friedel v. Bailey, 44 S.W.2d 9, 329 Mo. 22. (3) The court erred in retaining jurisdiction of the cause after it appeared from the evidence that all the parties interested and affected by the covenant not to sue were parties to and had entered their appearance in Chester Smith's suit for damages, cause No. 478141, filed July 2, 1941, in the Circuit Court of Jackson County, Missouri. (4) Filing a motion to stay is a general entry of appearance. Terre v. Hague, 251 S.W. 77; State ex rel. Terre v. Allen, 271 S.W. 469. (5) The court erred in issuing an injunction against defendant, restraining him from further prosecuting his cause of action in the Circuit Court of Jackson County, Missouri. The statutes require such suits to be brought in the county where the suit sought to be enjoined is pending. R.S. 1939, secs. 1136, 1665. (6) Injunction will not issue where plaintiff has an adequate remedy at law. Burgess v. Kattleman, 41 Mo. 480; Hopkins v. Lovell, 47 Mo. 102; Planet Property & Financial Co. v. St. L.O.H. & C. Ry. Co., 22 S.W. 616; Primm v. White, 162 Mo.App. 594, 142 S.W. 802; Special Road Dist. No. 4 v. Stepp, 4 S.W.2d 480. (7) The court erred in holding the covenant not to sue, offered in evidence, valid and legal. Hubbard v. Lust, 181 S.W. 1028; Porter v. United Rys., 148 S.W. 162; Braun v. Adams Transfer Co., 31 S.W.2d 117; Armstrong v. Scullin Steel Co., 268 S.W. 386. (8) The court erred in holding that the covenant not to sue, offered in evidence by plaintiff, was legal as to Southwestern Greyhound Lines, Inc., and R. F. Hayes, who were not parties to this cause, and who were not asking relief of the court. That deprived defendant of any opportunity to offer evidence as to any fraud, either of them might have committed. That question was outside the pleadings. Wolz v. Venard, 253 Mo. 67, 161 S.W. 760; Congregation B'Nai Abraham v. Arky, 20 S.W.2d 899; Sutton v. Anderson, 31 S.W.2d 1027; Reney v. Reney, 117 S.W.2d 698; Friedel v. Bailey, 44 S.W.2d 9, 329 Mo. 22. (9) Chester E. Smith was incapable through pain and suffering, opiates, worries, needing money for the doctor, in a hospital for the first time, being so up-set that he did not know what he was signing and needing better service than he was getting, of understanding what he was doing, and on top of all that a claim agent standing by his bedside with a check already made out for $ 700. Hubbard v. Lust, 181 S.W. 1028; Porter v. United Rys., 148 S.W. 162; Braun v. Adams Transfer Co, 31 S.W.2d 117; Armstrong v. Scullin Steel Co., 268 S.W. 386.
J. Francis O'Sullivan, Cowgill & Popham, Sam Mandell and Louis J. Rasse for respondent.
(1) The Circuit Court of Saline County, having first acquired jurisdiction of these parties, that jurisdiction remains to determine all of the issues between them to the exclusion of every other court. Miller v. Continental Assur. Co., 233 Mo. 91, 196 S.W. 448. (2) No tender of the return of the fourteen hundred dollars having been made by Smith prior to the filing of the Jackson County damage suit, the damage suit cannot be legally maintained. Gilbert v. Rothschilds, 280 N.Y. 66, 19 N.E.2d 785, 134 A.L.R. 1; Stewart v. Steinoff, 119 S.W.2d 76. (3) Plaintiff has a perfect right, under the Missouri declaratory judgment act, to have the covenant not to sue determined to be valid and enforceable as against defendant. Art. XIV, Chap. 6, R.S. 1939, sec. 1126 et seq. (4) Even absent the declaratory judgment act, plaintiff is entitled to have the terms of the covenant not to sue specifically performed by Smith, because he could be required to pay or contribute to the payment of any judgment against Southwestern Greyhound Lines, Inc. and R. F. Hayes in the Jackson County damage suit. Sec. 3658, R.S. 1939; Karcher v. Burbank, 21 N.E.2d 542, 124 A.L.R. 1292; Metropolitan Paving Co. v. Brown-Crummer Inv. Co., 309 Mo. 638, 274 S.W. 815. (5) Restrictive covenants in contracts are enforceable by equity courts and by injunction. Pope-Turnbo v. Bedford, 147 Mo.App. 692, 127 S.W. 426; 3 Pomeroy, Eq. Jur., sec. 1342; 2 High, Injunctions, sec. 1142; Miller v. Klein, 160 S.W. 562. (6) Under the facts, plaintiff had no plain, adequate and complete remedy at law. In any event, the legal remedy provided by Section 934, R.S. 1939 is not exclusive, and plaintiff had a clear right to equitable injunctive relief. Sec. 1683, R.S. 1939; Karcher v. Burbank, supra; Roberts v. Central Lead Co., 95 Mo.App. 581, 69 S.W. 630; Metropolitan Paving Co. v. Brown-Crummer Inv. Co., supra; Austin v. Brooklyn Cooperage Co., 185 S.W. 1015; Magnuson v. Cont. Cas. Co., 125 Mo.App. 206, 101 S.W. 1125; Ordway v. Cont. Ins. Co., 35 Mo.App. 426. (7) Sec. 1665, R.S. 1939 has no application. State ex rel. Gabbert v. Lucas, 246 S.W. 208. (8) Defendant waived any question of venue by answering. Rice v. Griffith, 161 S.W.2d 220; Liechty v. Kansas City Bridge Co., 162 S.W.2d 275.
Bohling, C. Westhues and Barrett, CC., concur.
This suit springs from injuries sustained by Chester E. Smith, defendant-appellant, when a motor coach in which he was riding collided with an unlighted truck on Highway No. 24 in Lafayette county, Missouri. The object of the original bill of R. H. Finley, plaintiff-respondent, in the instant suit was to enjoin Smith's prosecution of any action against Finley on account of said injuries and thus enforce a covenant by Smith not to sue Finley. The case reaches us upon transfer from the Kansas City Court of Appeals on the ground the amount involved, $ 50,000, exceeds the jurisdiction of that court. Finley v. Smith (Mo. App.), 170 S.W. 2d 166 and cases cited.
The accident happened February 20, 1937. Defendant was severely injured. He was taken to a hospital, where, on March 4, 1937, he signed and acknowledged a covenant not to sue the Southwestern Greyhound Lines, Inc., R. H. Finley and Richard B. Hayes, [*] without prejudicing any rights against others. The consideration was a $ 700 check issued to defendant and a $ 700 check issued to the hospital and the doctor; each of which checks was paid.
On July 2, 1941, Smith instituted a tort action in Jackson county, Missouri, against Southwestern Greyhound Lines, Inc., Richard B. Hayes and three others (Joseph Lyons, Joy Shull, and Jack Woodward -- charging they negligently parked the truck) for damages on account of his said injuries.
On December 23, 1941, R. H. Finley filed the instant suit in Saline county, Missouri. His original petition narrated the fact of the collision and Smith's claim of damages for injuries sustained; and alleged that Smith had indicated a desire to settle with and release "the alleged operators of the motor coach" and not the owner and operators of the motor truck, and on March 4, 1937 "did release this plaintiff of any and all liability to him on account of said accident and his injuries, and did covenant, under seal, that he would never sue or attach this plaintiff for or on account of any claim for damages arising out of the accident above described"; that, upon information, Smith had instituted a tort action against the others named in said covenant and threatened and was about to file a like action against plaintiff, all in breach of said covenant; that plaintiff had no adequate remedy at law, and asked that Smith be "forever prevented and enjoined from maintaining or prosecuting or attempting to maintain or prosecute any action at law in any jurisdiction whatsoever against the plaintiff because of any injuries alleged by defendant [Smith] to have been sustained by him in the" accident involved, coupled with a prayer for general equitable relief.
Smith's amended answer in the Saline county suit was a general denial coupled with pleas putting in issue the validity and effectiveness of the covenant not to sue. Finley's reply was a general denial.
On February 11, 1942, Smith amended his petition in the Jackson county action, joining R. H. Finley as a party defendant. Thereafter, there was filed in the Jackson county action a motion for and on behalf of Finley to stay said Jackson county proceedings, the gist of which appears hereinafter.
The cause was submitted on May 20, 1942. Finley offered in evidence statements against interest made by Smith in a deposition. They were, among other things, to the effect Smith turned his claim over to the Doctor to settle -- Smith thought the Doctor wanted his pay. The Doctor asked Smith if he could get $ 700 if it would be all right. Smith told him he would leave it to him. The Doctor was not sure he could get the $ 700, stating he thought it was all Smith could get. He supposed that was the reason he settled. He needed the money.
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