Kahn v. Brunswick-Balke-Collender Co.

Decision Date02 December 1941
Docket NumberNo. 25824.,25824.
Citation156 S.W.2d 40
PartiesKAHN v. BRUNSWICK-BALKE-COLLENDER CO. et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, City of St. Louis; Robert J. Kirkwood, Judge.

"Not to be reported in State Reports."

Action by Eva Kahn against the Bruns-wick-Balke-Collender Company and others, for injuries sustained in a collision between an automobile and a street car. Subsequently an amended petition was filed and the St. Louis Public Service Company was omitted as a party defendant. From an adverse judgment, plaintiff appeals.

Affirmed.

B. Sherman Landau, of St. Louis, for appellant.

Moser, Marsalek & Dearing and Julian C. Jaeckel, all of St. Louis, for respondents.

HUGHES, Presiding Judge.

The plaintiff (appellant) alleging injuries received in a collision of a street car on which she was a passenger, and which was owned and operated by the St. Louis Public Service Company, and an automobile being operated by Harry J. Hegwein, while in the course of his employment by Brunswick-Balke-Collender Company, a corporation, filed suit against the St. Louis Public Service Company, Hegwein and the Brunswick-Balke-Collender Company. Subsequently an amended petition was filed and the St. Louis Public Service Company was omitted as a party defendant.

The answer of the defendants, in addition to a general denial, alleged that the original claim and petition had been against the St. Louis Public Service Company, and the two remaining defendants, and that plaintiff had entered into a settlement agreement with the St. Louis Public Service Company whereby said Company would pay to plaintiff and her husband a sum of money, the amount of which was unknown to defendants, in full settlement for whatever injuries plaintiff had sustained and of any claim that her husband might have by reason of her injuries, and that plaintiff and her husband had agreed to release and discharge the St. Louis Public Service Company from any and all liability, and agreed to dismiss the case as to St. Louis Public Service Company, and in compliance with said agreement had dismissed the cause as to the St. Louis Public Service Company, and asked to be discharged with their costs.

In as much as we are of the opinion that this plea of defendants was fully sustained by the uncontradicted evidence, a statement of facts of the injuries, which were disputed, is unnecessary. And likewise assignments of errors on other questions go out of the case. Sufficient to say that although there was some dispute as to whether the collision was caused by the operator of the street car or the operator of the automobile, there was sufficient evidence to have made a submissible case for plaintiff against either or both. Tried before a jury there was a verdict for the defendants.

The facts as to the settlement agreement were given in evidence by witness F. X. Cleary, a lawyer on the legal staff of the St. Louis Public Service Company, who testified: That prior to the filing of the amended petition he entered into a settlement agreement with plaintiff's attorney that the St. Louis Public Service Company would pay $750 in the Eva Kahn case, and also including the claim of her husband, in view of the fact she was a married woman. That at the time "we made the settlement" it was understood that the money wouldn't be paid until it was requested by Mr. Landau, and that is the reason it has not been paid, because it has never been requested.

On cross-examination the witness testified:

"Q. Mr. Cleary, was there ever any allocation of any part of that sum as to Mrs. Kahn's suit? That is, was any amount ever arrived at as to the specific amount to be applied in settlement of Mrs. Kahn's case? A. Do you mean as distinguished from her husband's claim?

"Q. Yes. A. No, we never. We just agreed on the total amount for the law suit that was pending, and the claim of her husband. No allocation of that amount, in other words."

On cross-examination the witness further testified:

"Q. (By Mr. Landau) It was understood at the time, was it not, Mr. Cleary, that this matter was not to be submitted to the plaintiff for her approval or rejection at that time? It was understood at that time that the proposition which we discussed was not to be submitted to the plaintiff, and had not been submitted to her personally? A. Well, that was the agreement, but I understood you to say that you were going to handle it in that manner, that you were not going to submit it to the plaintiff—I recall that conversation. I mean that wasn't embodied in the agreement.

"Q. In the agreement? A. Yes.

"Q. But that was the understanding that you had of the situation at the time it was taken up? A. Yes, that is the way I understood you were going to handle it, in other words."

The witness further testified: That this was a settlement of the two separate claims of these two individuals. That his client stood ready and willing to perform the agreement and pay the sum of $750; that any time a payment is requested a check will be sent the same day.

The contention of plaintiff on this issue in the case is shown very clearly by the following objection to Mr. Cleary's testimony made by plaintiff's counsel:

"Now, at this time I again wish to renew my objection to the witness' testimony and ask that the jury be instructed to disregard it, and ask that it be stricken from the record for the reason that the witness' testimony was not confined to the release of this plaintiff alone, nor was it confined to the settlement of this case, but related generally to the release of the husband's cause of action; and for the further reason that it does not relate to a settlement, but only to an agreement to settle in the future, and such agreement pertained directly to both plaintiff's cause of action and her husband's cause of action; that it offers no basis for a consideration of the jury, either in diminution of damages or otherwise, for the reason that the jury is furnished with no basis of an allocation of any amount which might be applied in diminution of these defendants' defense in this case; also for the further reason that the evidence specifically shows that no agreement has been executed by the plaintiff; that no agreement has been executed on behalf of the plaintiff, and that no sum of money has been paid."

The common law rule that the release of one or more joint tort-feasors discharged the others has been abolished by Statute, § 3658, R.S.1939. And under the law of our State the release of...

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22 cases
  • Collins v. Gaskill
    • United States
    • Missouri Supreme Court
    • April 11, 1949
    ... ... complete contract of accord and satisfaction was made by the ... parties. There was no dispute. Kahn v ... Brunswick-Balke-Collender Co., 156 S.W.2d 40; Zinke ... v. Knights of the Maccabees of the World, 275 Mo. 660, ... 205 S.W. 1; ... ...
  • Western Newspaper Union v. Woodward
    • United States
    • U.S. District Court — Western District of Missouri
    • August 8, 1955
    ...Bridge Co., Mo.App., 117 S.W.2d 693; Roberts v. Atlas Life Ins. Co., 236 Mo.App. 1162, 163 S.W.2d 369; Kahn v. Brunswick-Balke-Collender Co., Mo.App., 156 S.W.2d 40, and the numerous cases therein 3 Preine v. Freeman, D.C., 112 F.Supp. 257; Smith v. Atchison, T. S. F. Ry. Co., 8 Cir., 194 F......
  • Ellis v. Farmer
    • United States
    • Missouri Supreme Court
    • March 12, 1956
    ...of furnish advanced by appellant in 1950 and 1951. Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 783, 788; Kahn v. Brunswick-Balke-Collender Co., Mo.App., 156 S.W.2d 40, 43. In addition, he thereafter conveyed his 130 acre farm to appellant in exchange for his $30,000 note and deed of trust in S......
  • Rosenblum v. Jacks or Better of America West Inc., 51392
    • United States
    • Missouri Court of Appeals
    • January 19, 1988
    ...on the authority of attorneys to settle lawsuits has led our courts to an anacoluthon in the law of agency. In Kahn v. Brunswick-Balke-Collender Co., 156 S.W.2d 40 (Mo.App.1941), this Court reiterated the presumption language from Parr, supra, and seemingly blurred it by applying a "presump......
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