Finley v. Smith

• Decision Date: 05 April 1943
• Docket Number: No. 20243.,20243.
• Citation: 170 S.W.2d 166
• Parties: FINLEY v. SMITH.
• Court: Missouri Court of Appeals

170 S.W.2d 166

FINLEY v. SMITH.

No. 20243.

Kansas City Court of Appeals. Missouri.

April 5, 1943.

Appeal from Circuit Court, Saline County; Robert D. Johnson, Judge.

"Not to be published in State Reports."

Suit by R. H. Finley against Chester E. Smith for a declaration of the validity of defendant's covenant not to sue plaintiff for injuries from a collision between a bus and a truck and to restrain defendant from prosecuting any action at law against plaintiff because of such injury. Judgment for plaintiff, and defendant appeals, and plaintiff moves to transfer the appeal to the Supreme Court.

Motion sustained and case transferred to Supreme Court.

O. H. Swearingen and Thomas M. Brandom, both of Kansas City, and Owen C. Rawlings, of Marshall, for appellant.

J. Francis O'Sullivan, Cowgill & Popham, and Sam Mandell, all of Kansas City, and Louis J. Rasse, of Marshall, for respondent.

BOYER, Commissioner.

This is an appeal from a judgment and decree of the Circuit Court of Saline County, wherein it was determined and adjudged that a certain covenant not to sue plaintiff-respondent and others, executed by defendant-appellant, was a valid, binding and subsisting covenant not to sue plaintiff Finley and others therein named for personal injuries sustained by the defendant Smith at the time and place mentioned in said covenant; that defendant Smith be perpetually restrained and enjoined from continuing to prosecute a pending suit for damages in the Circuit Court of Jackson County, Missouri, at Kansas City, against plaintiff and others named; and further perpetually restrained, enjoined and prevented from instituting, maintaining or prosecuting any action at law or otherwise in any jurisdiction whatsoever against the plaintiff or against Southwestern Greyhound Lines, Inc., and R. B. Hayes named in the covenant not to sue for the claimed injuries at the time and place described. This action was filed December 23, 1941, and the judgment aforesaid was rendered June 3, 1942. Intermediate and antecedent events and things transpired as shown by the record, viz.:

On February 20, 1937, Chester E. Smith was a fare-paying passenger on a Greyhound bus. The bus collided with a truck parked on the highway in Lafayette County. Smith was severely injured, sustaining a broken leg and other damage. He was removed to a hospital at Carrollton, Missouri, for treatment. An extended cast was placed on his leg and part of his body, and while in that condition in the hospital on the 4th day of March, 1937, he signed and acknowledged a covenant not to sue the Southwestern Greyhound Lines, Inc., R. H. Finley, and R. B. Hayes for damages on account of his injury at the time of the collision. The covenant recites that Smith desired to compromise and settle any claim which he might have then or thereafter against the named parties only, without prejudicing any right of action against any other party or parties; that the settlement and covenant were made in consideration of the payment of $700 to Smith and the payment of all hospital and doctor bills then or thereafter to become due the hospital and two named doctors. Pursuant to said covenant an agent for Finley and the Greyhound Lines delivered a check for $700 to Smith and another check for $700 payable to the hospital and a named doctor. These checks were paid.

On July 2, 1941, Smith filed a suit in the Circuit Court of Jackson County, Missouri, against Southwestern Greyhound Lines, Inc., Richard B. Hayes, and three other individuals charged as negligently parking the truck with which the bus collided on the highway. The damage was alleged in the sum of $50,000, for which judgment was prayed. R. H. Finley was not then made a party defendant in the Jackson County damage suit.

On December 23, 1941, R. H. Finley filed his petition in the instant case in the Circuit Court of Saline County. The petition, as amended, recites that Smith claimed that Finley was responsible for the negligence that caused his injury; the settlement and covenant not to sue Finley; that Smith had brought suit in violation of said covenant against other parties named therein, and that Smith was about to file suit against Finley in the sum of $50,000, in breach of his covenant; that Finley did not have adequate and complete remedy at law, for certain alleged reasons, and prayed the court to declare and decree the covenant not to sue to be a valid, subsisting and binding covenant, and that Finley had the right to fully enforce the same, and 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 Finley because of the injury claimed to have been sustained by Smith in the accident described.

The amended answer was a general denial and a plea that Finley did not have a legal or equitable covenant not to sue; that Finley was unknown to Smith; that he had no negotiations with him; that Finley had not paid Smith anything on account of his injuries or toward the covenant not to sue; and that the covenant was fraudulently obtained by Finley due to plaintiff's condition and other matters set forth.

The case was heard May 20, 1942, but prior thereto and on February 11, 1942, Smith filed an amended petition in the action pending in the Jackson County Circuit Court, and by said amendment R. H. Finley was made a party defendant. The amended petition charged among other things that the motor coach in which Smith was riding at the time of his injury was operated by the defendants Southwestern Greyhound Lines, Inc., and R. H. Finley, and that they were operating as public carriers. It was also alleged that Richard B. Hayes was in charge of and operating the motor coach as the agent and servant of the Southwestern Greyhound Lines, Inc., and R. H. Finley. The alleged negligence of the various defendants was declared; plaintiff's injuries were described and alleged to be due to the negligence and carelessness of the defendants, and that he was damaged in the sum of $50,000, for which he prayed judgment.

To the above amended petition defendant Finley filed a motion to stay proceedings in the Jackson County Circuit Court, which said motion recited the settlement and covenant not to sue; that Smith indicated his intention of violating said covenant; that Finley then filed his suit in the Circuit Court of Saline County to obtain an injunction against Smith and to enforce the terms of the covenant; that said suit was pending; that said action was filed long before Finley was made a party defendant in the damage suit; that the Circuit Court of Saline County had obtained prior jurisdiction of the controversy between the parties and that its decree would determine the right of Smith to maintain his present action.

At the close of plaintiff's evidence in the Saline County Circuit Court, defendant Smith offered a demurrer thereto which the court refused. The defendant offered in evidence the separate answer of defendants Southwestern Greyhound Lines, Inc., and Richard B. Hayes filed in the Jackson County case, which answer was a general denial and a plea of the compromise and settlement of Smith's claim and his covenant not to sue. The offer of this answer was refused and defendant offered no other evidence.

The facts heretofore recited are derived from exhibits offered by plaintiff, the testimony of defendant Smith contained in his deposition, and the testimony of another witness who represented Finley's insurer and who investigated the accident after which the insurer of Finley authorized the issuance of the checks in payment of the settlement and the covenant. No further statement of the evidence is deemed essential in view of the disposition to be made of the appeal to this court.

The recitals in the judgment of the trial court are prolonged and in great detail. The court "finds all and singular the allegations of plaintiff's petition and first amended petition to be true, and that the defendant has failed to sustain any of the allegations of his answer, and that plaintiff is entitled to have this Court find, determine, declare and decree that the covenant not to sue executed and delivered by Chester E. Smith, the defendant herein, on or about March 4th, 1937, for the consideration stated therein, * * * * * is a valid, binding and subsisting covenant not to thereafter sue or attempt to sue Southwestern Greyhound Lines, Inc., R. H. Finley and R. B. Hayes for damages for personal injuries sustained by him under the circumstances recited in said covenant." Certain recitals in the covenant are then given and the covenant is set forth in haec verba, and it was decreed to be valid and binding. Many other recitals and statements are made in the judgment, and it is finally adjudged and decreed "that the defendant, Chester E. Smith, be and he is hereby further perpetually restrained and enjoined from continuing to prosecute said case No. 478,141, in the Circuit Court of Jackson County, Missouri, at Kansas City, wherein he, the said Chester E. Smith, is plaintiff and Southwestern Greyhound Lines, Inc., Joseph Lyons, Joy Shull, Jack Woodward, Richard B. Hayes and R. H. Finley are defendants, as against the plaintiff herein and as against Southwestern Greyhound Lines, Inc., and R. B. Hayes, plaintiff's co-covenantees in said covenant not to sue, and that the defendant Chester E. Smith, be and he is perpetually and forever restrained, enjoined and prevented from instituting, maintaining or prosecuting, or attempting to institute, maintain or prosecute any action at law, or otherwise, in any...