Keller v. Keklikian
| Decision Date | 10 December 1951 |
| Docket Number | No. 42434,No. 2,42434,2 |
| Citation | 244 S.W.2d 1001,362 Mo. 919 |
| Parties | KELLER v. KEKLIKIAN |
| Court | Missouri Supreme Court |
Barnhart & Wood, C. V. Barnhart and Marvin S. Wood, all of St. Louis, for appellant.
Lloyd E. Boas, St. Louis, for respondent.
BARRETT, Commissioner.
In this action for $15,400 damages for personal injuries and damage to property the trial court has sustained the defendant's motion to dismiss the plaintiff's petition. In effect the trial court has entered judgment for the defendant upon the pleadings, Mo.R.S.1949, Sec. 509.360, for the reason that the plaintiff is not entitled to maintain this action. Upon this appeal by the plaintiff the specific question for decision is whether, under the facts and circumstances set forth in all the pleadings, the cause of action or claim alleged in the plaintiff's petition was such a compulsory counterclaim that he was bound by The Civil Code of Procedure, particularly Section 509.420, to have asserted the claim in a previous action between the same parties in which he was defendant and the present defendant was plaintiff.
In general, as disclosed by the pleadings, the facts and circumstances were these: On the 2nd day of December 1949 automobiles owned and driven by the present plaintiff, Keller, and the present defendant, Keklikian, collided on Robin Avenue. Keklikian engaged counsel and on the 23rd day of December 1949 instituted an action in the Circuit Court of the City of St. Louis against Keller to recover damages resulting from the collision. A summons and Keklikian's petition were duly served upon Keller. Keller carried automobile liability insurance in the Inter-Insurance Exchange of the Automobile Club of Missouri and in accordance with the terms of his policy turned the petition and summons over to his insurance carrier. On the 27th day of January 1950 Keklikian's counsel and counsel employed by the liability insurance carrier, in the names of the respective parties, filed a stipulation in the Circuit Court of the City of St. Louis in which it was recited that 'All of the matters and things in controversy in the above entitled cause having been adjusted, compromised and finally settled, it is stipulated and agreed, by and between the above named plaintiff and defendant, that this cause shall be dismissed with prejudice to any other or further action on account of the matters and things contained and set forth in plaintiff's petition, and that all costs shall be paid by defendant.' On February 2nd, 1950 the Circuit Court of the City of St. Louis entered an order of dismissal in accordance with the terms of the stipulation. On March 29, 1950 Keller instituted this action in the Circuit Court of the City of St. Louis against Keklikian.
In answer to Keller's petition in this suit Keklikian admitted the collision but denied that it was caused or contributed to in any way by negligence on his part. He pleaded the fact of his having instituted the action against Keller, service of process on Keller and that 'the plaintiff in this action had the claim against this defendant which is asserted in the petition in the present case and said claim was not the subject of a pending action at that time.' He pleaded that Keller's claim arose out of the same transaction or occurrence and was a compulsory counterclaim under Section 509.420 which Keller was bound to assert in the original action and having failed to assert it that the claim was adjudicated in the former action and that Keller is now estopped from asserting it.
Keklikian then filed a motion to require Keller to file a reply. Keller first filed a motion to strike that part of the answer which pleaded Keklikian's former suit, the stipulation and the facts concerning the judgment of dismissal. That motion was overruled and Keller, in response to the court's ruling on Keklikian's motion, filed a reply. In his reply Keller admits the institution of the original suit by Keklikian but pleads 'that prior to the expiration of time allowed defendant therein to plead thereto, said action was dismissed pursuant to stipulation.' In explanation and avoidance of the former suit and its disposition Keller replied that at the time of the collision an automobile liability insurance policy issued to him was in full force and effect and that under the provisions of the policy his liability was insured and that it was his duty under the terms of the policy to notify his insurance carrier who had the right to investigate any claims or suits, employ counsel and settle any claim or suit without his acquiesence or consent and without notice to him. He then replied that under the terms of the policy he delivered the petition and summons to the insurance company and that the company settled and compromised the suit and filed the stipulation for dismissal without notice to him and without his knowledge or consent. He states in his reply that the lawyers were employed by and represented the insurance company and did not represent him 'in regard to any matters or things arising out of said automobile accident; that the representation of plaintiff (Keller) * * * by said attorneys was pursuant to the provisions of the aforesaid policy of insurance' and that the cause was dismissed pursuant to the stipulation 'prior to the filing on behalf of plaintiff (Keller) * * * of any pleading within the meaning of the provisions of the Rules For Civil Procedure * * * and prior to the expiration of time allowed a defendant to assert a compulsory counterclaim' under the code. He also replied that the attorneys employed by the insurance company acted solely and exclusively for the benefit of the insurance company and at to time were they 'acting for or on behalf of plaintiff as his express or implied agent.' In conclusion he replied that the judgment of dismissal, pursuant to the terms of the stipulation, was with prejudice only to any other or further claim by Keklikian and was not res adjudicata as to any claim he may have had against Keklikian. Upon motion, in this state of the pleadings, the trial court dismissed the plaintiff's petition and entered judgment for the defendant.
As we view the essential merits of the appeal it is not necessary to determine whether the judgment of dismissal in the first action was with or without prejudice to Keller's rights, or to decide whether that judgment was res adjudicata of Keller's claims arising out of the subject matter of the occurrence and of Keklikian's suit. It may be noted, however, that under the express provisions of the code a dismissal 'with prejudice' operates as an adjudication upon the merits while a dismissal 'without prejudice' permits the bringing of another action for the same cause 'unless the action is otherwise barred', Mo.R.S.1949, Sec. 510.150, except that no dismissal of a plaintiff's cause operates to dismiss or discontinue a filed counterclaim. Mo.R.S.1949, Sec. 510.170. The essence of the appeal is whether, under the pleaded facts and circumstances, Keller having failed to assert his claim in the original action is precluded by reason of the Civil Code of Procedure, particularly Section 509.420, from subsequently asserting the claim in this separate and independent action.
In support of his argument that the trial court was in error in dismissing his petition the plaintiff, Keller, first contends that the fact of his insurance company's settling Keklikian's suit does not preclude him from asserting his own claim for damages arising out of the same collision for the reason that the insurance company was acting for and in its own behalf and interest and not as his agent. This argument is but partially valid, and in any event does not have the compelling force plaintiff attributes to it. It may be assumed for the purposes of this opinion that one's insurance carrier, or lawyers selected by the company, has no authority to settle the insured's claim or otherwise dispose of his substantial rights without the knowledge or consent of the assured, in the absence of any other factor, but it does not follow, that whatever action the assured...
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