Jacobson v. Parrill

• Decision Date: 09 April 1960
• Docket Number: No. 41732,41732
• Citation: 186 Kan. 467,351 P.2d 194
• Parties: Evelyn JACOBSON, Steven Jacobson, Connie Jacobson, Kenneth Jacobson, minors, by Evelyn Jacobson, their Mother and Next Friend, Appellants, v. Albert S. PARRILL, Appellee.
• Court: Kansas Supreme Court

Page 194

351 P.2d 194

186 Kan. 467

Evelyn JACOBSON, Steven Jacobson, Connie Jacobson, Kenneth Jacobson, minors, by Evelyn Jacobson, their Mother and Next Friend, Appellants, v. Albert S. PARRILL, Appellee.

No. 41732.

Supreme Court of Kansas.

April 9, 1960.

Syllabus by the Court.

The record in an action to recover damages for wrongful death upon the alleged derivative liability of the owner of an automobile under the doctrine of respondeat superior for the active tort of his agent-driver, wherein the plaintiff alleged the sole act of negligence was that the agent-driver drove the defendant's automobile onto the wrong side of the highway causing a head-on collision with the automobile owned and driven by the plaintiff's decedent, causing his death and also the death of the agent-driver, no active tort of the owner being alleged, is examined and, as more fully set forth in the opinion, it is held: that the plaintiff's acceptance of full satisfaction of a judgment against the active tort-feasor's estate rendered in another district court wherein the plaintiff claimed the same damages upon the same act of negligence of the agent-driver as alleged in her petition in the instant action, extinguished any right of action for derivative liability against the owner. It is further held: that an order nunc pro tunc of the district court which rendered the judgment, purporting to reserve plaintiff's rights against the owner, made approximately six months after full satisfaction of the judgment, was inoperative as beyond the power of the district court to render, since, upon the plaintiff's acceptance of full satisfaction of the judgment, she had no rights to reserve.

Evert Mills, McPherson, argued the cause, and E. W. Jernberg, Lindsborg, was with him on the briefs for appellants.

James P. Mize, Salina, argued the cause, and C. L. Clark and T. M. Lillard, Jr., Salina, were with him on the briefs for appellee.

FATZER, Justice.

On February 19, 1957, Evelyn Jacobson commenced this action in the district court of Saline County on behalf of herself and as mother and next friend of her three minor children, to recover damages in the amount of $25,000 for the wrongful death of John A. Jacobson, the husband and father. The appeal is from an order sustaining the defendant's motion to strike portions of the plaintiffs' reply, which the trial court considered as tantamount to a demurrer searching the entire record, and entered judgment for the defendant.

On January 23, 1957, John A. Jacobson was killed in an automobile collision between his car and one owned by the defendant, Albert S. Parrill, and driven by Fred E. Cochran who was also killed in the collision. The accident occurred at about 7:10 a. m. approximately three miles south of Lindsborg, McPherson County, Kansas, on U. S. Highway No. 81.

Parrill and Cochran were in military service and stationed at Schilling Air Force Base near Salina, Kansas. On the evening of January 22, 1957, they left the air base for Wichita in Parrill's automobile and were returning for duty the next morning when the collision occurred. Before leaving Wichita, Parrill stated he felt sleepy and requested Cochran to drive; Cochran stated he felt pretty good.

When the action was commenced, the defendant Parrill was nineteen years of age and was a resident of the state of Maryland. At the time of his death Cochran was also nineteen years of age and was a resident of the state of Pennsylvania.

In deciding this controversy, the plaintiffs are hereafter referred to Evelyn Jacobson, or the plaintiff.

The plaintiff's petition, which was filed against Parrill alone, sought recovery upon an alleged derivative liability of Parrill under the doctrine of respondeat superior for the active tort of Cochran in driving Parrill's automobile. The sole act of negligence alleged in the petition was that Cochran negligently drove Parrill's automobile onto the wrong side of the road causing a head-on collision with the automobile owned and driven by Jacobson, causing his death. No active tort of Parrill was alleged. In his answer Parrill admitted Cochran was driving his automobile.

After the petition was filed, a question arose whether Parrill was covered by an insurance policy issued to his stepfather who lived in Maryland. Under the laws of that state, Parrill was a minor until age 21. To obtain a driver's license, Maryland laws require that some adult person sponsor a mimor's application and furnish public liability insurance to protect agsinst the minor's negligence in operating a motor vehicle. Prior to induction into military service, Parrill applied for a driver's license and his stepfather sponsored his application and furnished an insurance policy written by the Harleysville Mutual Casualty Company in the required amount.

A declaratory judgment action was commenced in Anne Arundel County, Maryland, to resolve the question whether the Maryland policy afforded insurance coverage to Parrill with respect to plaintiff's action pending against him in Saline County. If the Maryland policy was ineffective, then Jacobson's own liability policy would pay the plaintiff an additional $5,000. On September 16, 1957, plaintiff and her counsel consented that the district court of Saline County enter an order extending the defendant's time to plead until the Maryland declaratory judgment action could be determined. However, on November 21, 1957, the plaintiff attempted to compel the defendant to plead by filing a motion to vacate such order, but the motion was overruled.

Thereafter, while the Maryland declaratory judgment action was still pending and undetermined, the plaintiff commenced an ancillary proceeding in the probate court of McPherson County to administer local assets of the estate of Fred E. Cochran, deceased. Following the appointment of an administrator, plaintiff filed a petition for allowance of demand against Cochran's estate in the amount of $25,000 based upon the collision and wrongful death of John A. Jacobson on January 23, 1957, and generally made the same allegations with respect to Cochran's negligence as those contained in her petition against Parrill in the district court of Saline County. The proceeding was transferred to the district court of McPherson County (G.S.1959 Supp. 59-2402a), where the administrator filed his answer consisting of a general denial and an affirmative allegation of contributory negligence on the part of Jacobson.

Thereafter, The Fidelity and Casualty Company of New York commenced an action in the United States District Court for the District of Kansas against the administrator and the plaintiff, alleging that the appointment of the administrator was void, and that it had no liability to Cochran's estate pursuant to the terms and conditions of an indemnity insurance policy issued to Cochran's father in the state of Pennsylvania; that it was not obligated to defend such estate or pay any judgment, and asked for a declaratory judgment relieving it of liability.

Following negotiations and on May 23, 1958, Evelyn Jacobson orally agreed to a compromise and settlement with Cochran's estate and The Fidelity and Casualty Company of New York upon payment of the sum of $5,000, upon the theory that Fred E. Cochran, deceased, was an additional insured under the terms of the indemnity policy issued to his father.

On May 28, 1958, during the April term, the district court of McPherson County entered a judgment which recited that the cause came regularly on for hearing; that evidence was introduced, and that the court, after considering the evidence, found that a bona fide dispute and controversy existed; that the parties had agreed to compromise and settle such controversy and had agreed upon a settlement, the terms of which provided that the plaintiff would be paid the sum of $5,000 in compromise of the cause of action for John A. Jacobson's wrongful death, for the use and benefit of herself and the three minor children, and that she have judgment against the estate of Fred E. Cochran, deceased, the active tort-feasor, in that amount and for costs of the action. The judgment further provided that such sum, when paid to the clerk of the court, would be full satisfaction of all claims, past, present and future of the petitioners against Cochran's estate and the insurance company and would fully release and discharge each from any further liability to the plaintiff.

On the same day the judgment was rendered, Evelyn Jacobson accepted the $5,000 as full payment and satisfaction, and the judgment was released of record. At the same time, she signed an instrument entitled 'Full Settlement Release and Indemnification Agreement' by which she discharged and indemnified Cochran's estate from all claims arising out of the automobile collision on January 23, 1957. On that same day, the probate court closed Cochran's estate and discharged the administrator. The declaratory judgment action in the United States District Court was dismissed a few days later.

The pertinent portions of the release and indemnity agreement signed by Evelyn Jacobson read:

'* * * In Consideration Of The Payment * * * of the judgment entered * * * in favor of Evelyn Jacobson, Steven Jacobson, Connie Jacobson and Kenneth Jacobson in the total amount of Five Thousand Dollars ($5,000.00) against the estate of Fred E. Cochran, deceased, and The Fidelity and Casualty Company of New York in Case No. 21654, the payment and adequacy of which judgment is hereby acknowledged, I do hereby release, acquit and forever discharge the estate of Fred E. Cochran, deceased * * * and The Fidelity and Casualty Company of New York of and from all manner of actions, suits, claims for damage, loss or expense which I or Steven Jacobson, Connie Jacobson and Kenneth Jacobson may have or make and which may be traced, either directly or indirectly, to the aforesaid accident as now appearing or may appear at any time in the future no...