Max v. Spaeth

Decision Date10 July 1961
Docket NumberNo. 1,No. 48407,48407,1
Citation349 S.W.2d 1
PartiesMary Kay MAX, Plaintiff-Appellant, v. Herman J. SPAETH, d/b/a Leola Hauling Company, Defendant-Respondent
CourtMissouri Supreme Court

Geo. T. Williams, F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant.

Gray & Jeans, St. Louis, for respondent.

HYDE, Judge.

Action for $25,000 damages for personal injuries sustained in a collision of motor vehicles. The court entered judgment for defendant on his motion for summary judgment and plaintiff has appealed.

A car driven by plaintiff herein collided with a truck owned by defendant driven by his employee Clyde Wyatt. On February 2, 1959, Wyatt sued plaintiff herein alleging failure to keep a lookout and excessive speed; service was had on February 4th; plaintiff filed answer on March 5th. On August 4th Wyatt's suit was dismissed by a stipulation of dismissal which stated: 'All of the matters and things in controversy in the above entitled cause having been adjusted, compromised and finally settled, it is hereby stipulated and agreed, by and between plaintiff and defendant, that this cause shall be dismissed with prejudice to any other or future action on account of the matters and things contained and set forth in plaintiff's petition, and that court costs shall be paid by defendant.'

On February 6, 1959, plaintiff had filed this suit against Wyatt's employer. After service on February 10th, defendant filed answer on March 11th alleging contributory negligence and on April 9th filed a counterclaim for damages to his truck. After plaintiff filed a reply, a stipulation of dismissal of defendant's counterclaim was filed on September 25th, which stated: 'All of the matters and things set forth in the defendant's counterclaim having been adjusted, compromised and finally settled, it is hereby stipulated and agreed by and between plaintiff and defendant that defendant's counterclaim shall be dismissed with prejudice to any other or future action on account of the matters and things contained and set forth in said counterclaim; that court costs shall abide the disposition of plaintiff's cause of action and that plaintiff's cause of action shall remain on the docket of pending causes in this Court, without prejudice.' Thereafter, an amended answer was filed which stated the facts about Wyatt's suit against plaintiff; that plaintiff sought to hold defendant secondarily liable under respondeat superior; that plaintiff did not file a counterclaim in the suit brought by Wyatt; that by the stipulation for dismissal of Wyatt's suit plaintiff had released Wyatt from all claims; and therefore plaintiff could not assert the same cause of action against defendant. Thereafter, defendant filed a motion for summary judgment on the same grounds which the court sustained and entered judgment for defendant.

Plaintiff's petition alleged that on the occasion of the collision, defendant's truck was being operated by Wyatt; that she was driving north and Wyatt was driving south; and that Wyatt turned the truck to the east (left-hand turn) in front of her car causing the collision. Thus defendant's liability was based solely on respondeat superior for the negligence of Wyatt. 'A dismissal 'with prejudice' operates as an adjudication upon the merits.' Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, 1003. Therefore, when plaintiff settled Wyatt's suit against her, agreeing without any qualifications that 'all matters and things in controversy' had been 'adjusted, compromised and finally settled,' she gave up all rights she might have had to sue him on any claim based on his negligence. This with the agreement for dismissal 'with prejudice' amounted to a full release of Wyatt's liability to her. A valid release of a servant from liability for tort operates to release the master. 35 Am.Jur. 963, Master and Servant, Sec. 535; Annotation, 126 A.L.R. 1199; Restatement of Agency, Sec. 217A; Restatement of Torts, Secs. 883, 885; likewise release of the master releases the servant; see also Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65; Minery v. Fenton, 29 N.J. 409, 149 A.2d 245; Mid-Continent Pipeline Co. v. Crauthers, Okl., 267 P.2d 568; Terry v. Memphis Stone & Gravel Co., 6 Cir., 222 F.2d 652. It is well settled in our law that 'if there is a verdict discharging the one defendant for whose negligence only it is sought to hold the other defendant, no judgment can be based thereon against either defendant.' Stoutimore v. Atchison, T. & S. F. Ry. Co., 338 Mo. 463, 92 S.W.2d 658, 660, and cases cited; State ex rel. Shell Petroleum Corporation v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; Cameron v. Howerton, Mo.Sup., 174 S.W.2d 206; Williams v. Kaestner, Mo.App., 332 S.W.2d 21. Certainly the same rule should apply when the question of a servant's liability is finally determined by a release as when it is determined by a verdict. One good reason given is that 'otherwise, the master would be deprived of his right of reimbursement from the servant, if the claim after settlement with the servant could be enforced against the master.' Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705, 126 A.L.R. 1194, 1197. Our view is that because the basis of liability on the theory of respondeat superior is that the master is liable only for the act of his servant (and not for anything he himself did, as in the case of a joint tort-feasor), therefore, when the servant is not liable, the master for whom he was acting at the time should not be liable. We hold that the settlement of Wyatt's suit released plaintiff's claim against him and therefore released plaintiff's claim against his employer, the defendant herein.

Because of the view we take it is not necessary to consider defendant's contentions concerning the effect of the compulsory counterclaim statute (Section 509.420 RSMo 1949, V.A.M.S., now Civil Rule 55.45 V.A.M.R.) or the case of Hoover v. Abell, Mo.App., 231 S.W.2d 217, 220. The fact that the court's order of dismissal stated this reason is immaterial since there was a correct reason for his action. City of St. Louis v. Evans,...

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  • Theophelis v. Lansing General Hosp.
    • United States
    • Michigan Supreme Court
    • June 6, 1988
    ...pp 416-418; 126 A.L.R. 1199; 76 C.J.S., Release, Sec. 50, p. 689. See Bacon v. United States, 321 F.2d 880 (CA 8, 1963); Max v. Spaeth, 349 S.W.2d 1 (Mo., 1961). Michigan courts have adhered to this common-law rule. Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65 (1948), overruled on other grou......
  • McCurry v. School Dist. of Valley
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    • Nebraska Supreme Court
    • February 26, 1993 388, citing Annot., 20 A.L.R.2d 1044 (1951); Bacon v. United States, 321 F.2d 880 (8th Cir.1963) (applying Missouri law); Max v. Spaeth, 349 S.W.2d 1 (Mo.1961). Thus, the Dickey court distinguished between settlements involving joint tortfeasors and those involving vicarious liability ar......
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    • September 17, 2009 affecting liability of servant or agent for tort, or vice versa, 92 A.L.R.2d 533 § 4 (1963). 28. Id. 29. See, e.g., Max v. Spaeth, 349 S.W.2d 1, 3 (Mo.1961); McClure v. Lence, 349 Ill.App. 341, 110 N.E.2d 695, 696 (1953); Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65, 67-68 (Mich. 1948); B......
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    • July 8, 2003 a covenant not to sue (referred to in the opinion as synonymous with a covenant not to execute). The court quoted from Max v. Spaeth, 349 S.W.2d 1 (Mo.1961), where it stated, "It matters little how the servant was released from liability; as long as he is free from [legal] harm, it appea......
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