King v. Jones

• Decision Date: 21 April 1971
• Citation: 483 P.2d 815,258 Or. 468
• Parties: Linda Lee KING, formerly known as Linda Riaz, Appellant, v. Arthur D. JONES, Kendall E. M. Nash, and Robert C. Chidester, dba Jones-Nash & Chidester, Respondents.
• Court: Oregon Supreme Court

Page 815

483 P.2d 815

258 Or. 468

Linda Lee KING, formerly known as Linda Riaz, Appellant, v. Arthur D. JONES, Kendall E. M. Nash, and Robert C Chidester, dba Jones-Nash & Chidester, Respondents.

Supreme Court of Oregon.

Argued and Submitted Jan. 5, 1971.

Decided April 21, 1971.

Vernon Cook, Gresham, argued the cause and submitted briefs for appellant.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, and HOWELL, JJ.

HOWELL, Justice.

Plaintiff filed an action for malpractice against defendants, partners in a law firm. The trial court granted a judgment on the pleadings in favor of defendants, and plaintiff appeals.

A motion for judgment on the pleadings is allowable only when the pleadings affirmatively show that plaintiff has no cause of action against the defendant, or when the defendant affirmatively alleges a complete defense which is admitted by the reply. Scott & Payne v. Potomac Ins. Co., 217 Or. 323, 341 P.2d 1083 (1959).

Plaintiff filed an original and two amended complaints. In her second amended complaint she alleged as follows: On June 13, 1964, she employed defendant Nash to represent her in a personal injury action against Meadows Pontiac Company and Lawrence Mannix. Her cause of action arose out of an accident that occurred on June 13, 1964, when Mannix, who was 'showing a vehicle' with the permission of Meadows Pontiac, negligently drove the vehicle into the plaintiff. The defendants filed an action on behalf of plaintiff against Meadows Pontiac and 'John Doe.' (The latter name apparently was used because Mannix's name was not known to plaintiff at that time.) Plaintiff also alleged that the defendants failed to obtain service on Mannix within the prescribed time and 'negligently permitted plaintiff's cause of action against Lawrence Mannix to become barred by the Statute of Limitations.'

Plaintiff further alleged that as a result of defendants' negligence she was precluded from recovering a judgment against Mannix and suffered damages in the amount of $27,873.97.

The defendants' answer alleged: The defendants were employed to prosecute an action against Meadows Pontiac and another person whose identity was not revealed, except that his name was 'Larry.' The complaint was filed against Meadows Pontiac and 'John Doe.' The defendants were unable to locate and serve 'Larry,' the defendant in the original personal injury action.

For an affirmative defense the defendants alleged that the plaintiff's action for personal injuries was settled during the trial for $3500, and that plaintiff executed a release in favor of Meadows Pontiac and Lawrence Mannix. The release, attached as an exhibit to the defendants' answer, expressly released Meadows Pontiac, Lawrence Mannix, and all other persons, firms or corporations from all claims arising '* * * as a result of injuries received by the undersigned on or about June 13, 1964, when the undersigned was standing near an automobile owned by MEADOWS PONTIAC CO. and which was parked by the curb on N.E. 27th Avenue adjacent to the then business location of MEADOWS PONTIAC CO. located at 2705 N.E. Sandy Blvd., in the City of Portland, Multnomah County, State of Oregon, when at said time and place one LAWRENCE MANNIX started up said automobile with the right front door open and moved it in such a manner as to cause the door of said automobile to strike the undersigned.'

In her reply, the plaintiff admitted the execution of the release, but alleged that she did not intend to release the defendants herein and that she was not fully compensated for her injuries by receipt of the $3500 settlement. ¹

The trial court held that plaintiff's release of Mannix in the personal injury action eliminated any cause of action against the defendants herein and granted a judgment on the pleadings in favor of defendants.

The defendants cite no rule of law that a release of an original tort-feasor after the statute of limitations has expired operates as a bar to an action for malpractice against the attorneys responsible for allowing the statute of limitations to run.

Rather, the defendants argue that plaintiff's release of the tort-feasor Mannix operates as a release of the defendants herein on the basis that a release of one joint tort-feasor releases all. Obviously, Mannix and the defendants are not joint tort-feasors. Plaintiff's cause of action against Mannix was for personal injuries incurred when Mannix negligently struck her with the automobile. Plaintiff's cause of action against defendants was for malpractice which occurred later when defendants negligently (according to plaintiff's complaint) failed to serve Mannix prior to the expiration of the statute of limitations. These are two separate and distinct acts giving rise to two separate and distinct causes of action.

Secondly, the defendants cite the rule that plaintiff, in an action for malpractice against the defendants, must show that she had a good cause of action against Mannix. Milton v. Hare, et al., 130 Or. 590, 598, 280 P. 511 (1929). In Milton the plaintiff contended that the defendant attorney was negligent in representing her in a claim that she had for fraud and deceit in the purchase of certain property. The court held that plaintiff's action for malpractice must fail because she had not alleged a cause of action for fraud and deceit in the original transaction.

In the instant case the plaintiff has alleged facts that show a cause of action against Mannix arising out of the accident on June 13, 1964. The defendants...