Mensing v. Sturgeon

• Decision Date: 09 June 1959
• Docket Number: No. 49723,49723
• Citation: 97 N.W.2d 145,250 Iowa 918
• Parties: Fred MENSING, Plaintiff-Appellant, v. Gene STURGEON and Mable Sturgeon, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 145

97 N.W.2d 145

250 Iowa 918

Fred MENSING, Plaintiff-Appellant, v. Gene STURGEON and Mable Sturgeon, Defendants-Appellees.

No. 49723.

Supreme Court of Iowa.

June 9, 1959.

Lundy, Butler, Lundy & Wilson, Eldora, for appellant.

Alan Loth, Fort Dodge, for appellee.

THOMPSON, Chief Justice.

The rulings of the trial court were made upon an adjudication of law points arising upon the face of the pleadings. We accordingly state the facts as shown by the petition, answer and reply. They are not in dispute. The order of the trial court had the effect of barring plaintiff's cause of action upon the facts as pleaded, and we granted an appeal before final judgment.

On August 5, 1953, a collision occurred on a public highway in Wright County between a tractor owned and operated by the plaintiff and an automobile owned by the defendant Gene Sturgeon and driven at the time by his wife, the defendant Mable Sturgeon. Plaintiff's action, based upon this accident, claims damages in the sum of $3,734.99. Apparently both plaintiff and defendants suffered some injuries.

A considerable time before the commencement of plaintiff Mensing's action herein, the Sturgeons, the present defendants, as plaintiffs had brought suit against Mensing claiming damages from him because of the same collision referred to in Mensing's present action against them. This first action was likewise in the Wright County District Court. Original notice in this case was served on Mensing on May 3, 1954. Mensing filed no pleading, in fact made no formal appearance in the case. But on June 22, 1954, the plaintiff Sturgeons executed a release to Mensing, for the recited consideration of $1,000. Since the release is considered important in the case, we set it out in full.

'Release Of All Claims

'For and in consideration of the payment to me/us at this time in the sum of One Thousand and no/100 ($1,000.00) Dollars ($1,000.00), the receipt of which is hereby acknowledged, I/we, being of lawful age, do hereby release, acquit and forever discharge Fred D. Mensing and any other person, firm or corporation identified with him in interest of and from any and all actions, causes of action, claims, demands, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from an accident that occurred on or about the 5th day of August, 1953, at or near Dows, Iowa.

'I/we hereby declare and represent that the injuries sustained are permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I/we have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.

'It is mutually understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of Fred Mensing by whom liability is expressed denied.

'This release contains the Entire Agreement between the parties hereto and the terms of this release are contractual and not a mere recital.

'I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our free act.

'Witness our hand and seal this 22nd day of June, 1954.'

This release was signed and acknowledged by Gene Sturgeon and Mable Sturgeon.

The Sturgeons, in their answer in the instant case, also allege that 'About June 22, 1954, he (Mensing) paid Gene and Mable Sturgeon substantial sums in settlement and induced them to release the claims and to dismiss the suit on the merits with prejudice, after the time for filing counterclaim * * *'. While in his reply argument plaintiff appellant Mensing says this allegation is not in the record because it was stricken, this is not correct. Another somewhat similar allegation, but referring to another case involving a different plaintiff, was stricken on motion. We think counsel has confused this allegation, and the ruling thereon, with the one above quoted, which was not attacked.

After the settlement of June 22, 1954, and the execution of the release above set out, the Sturgeons then filed a dismissal of their pending suit against Mensing, in these terms: 'Come now Gene Sturgeon and Mabel Sturgeon, plaintiffs in the above entitled action and hereby dismiss with prejudice (Italics supplied) their cause of action against defendant.' This was duly signed by Gene Sturgeon and Mable Sturgeon and filed in the office of the Clerk of Wright District Court on June 24, 1954.

The exact date of the commencement of the present action by Mensing does not appear, but it was a considerable time after he had paid the Sturgeons the sum of $1,000 in settlement of their claims against him and obtained their release and the dismissal of their suit with prejudice. This statement makes apparent the question now before us: Does party defendant in a suit claiming damages arising out of a motor vehicle collision, who does not appear in the suit or file any pleading, but who makes a settlement of the claims asserted against him and procures a full release and a dismissal of the pending action with prejudice, reserve the right to thereafter bring suit for damages he sustained in the same collision? The trial court answered in the negative, and we agree with its conclusion.

The plaintiff appellant, Mensing, states the two propositions relied upon by the defendants-appellees to sustain the ruling of the trial court to be these: 1, R.C.P. 215, 58 I.C.A., does not govern a voluntary dismissal with prejudice: and 2, the voluntary dismissal with prejudice constitutes a bar by agreement. He then attempts, in argument, to demonstrate why neither of the stated propositions is sound. Our own understanding of defendants' position, as shown by the record and arguments, is not stated by plaintiff exactly as we would put it, although in substance, as shown by his brief, it is not materially different. It should be made clear that the first point raises the question of compulsory counterclaim; and we think it is defendant's contention with regard to the second stated proposition that it is the settlement as well as the dismissal with prejudice which bars plaintiff's claim. We shall first discuss the matter of the compulsory counterclaim.

I. The first proposition, that R.C.P., 215 does not govern a voluntary dismissal with prejudice is important because at this point the defendants are urging a bar of plaintiff's action because of R.C.P. 29, our compulsory counterclaim rule. We set it out herewith.

'Compulsory Counterclaims

'A pleading must contain a counterclaim for every cause of action then matured, and not the subject of a pending action, held by the pleader against any opposing party and arising out of the transaction or occurrence that is the basis of such opposing party's claim, unless its adjudication would require the presence of indispensable parties of whom jurisdiction cannot be acquired. A final judgment on the merits shall bar such a counterclaim, although not pleaded. (Report 1943)'. The controversy in this case rages around the last sentence of the rule. It is plaintiff's argument that, in view of the language of Rules 215 and 217, the dismissal of the suit brought by the present defendants, the Sturgeons, as plaintiffs, although with prejudice, was not an adjudication on the merits. We quote Rules 215 and 217 following: 'Rule 215: A party may, without order of court, dismiss his own petition, counterclaim, cross-petition or petition of intervention, at any time before the trial has begun. Thereafter a party may dismiss his action or his claim therein only by consent of the court which may impose such terms or conditions as it deems proper; and it shall require the consent of any other party asserting a counterclaim against the movant, unless that will still remain for an independent adjudication. A dismissal under this rule shall be without prejudice, unless otherwise stated; but if made by any party who has previously dismissed an action against the same defendant, in any court of any state or of the United States, including or based on the same cause, such dismissal shall operate as an adjudication against him on the merits, unless otherwise ordered by the court, in the interests of justice. (Report 1943)'

'Rule 217. Effect Of Dismissal

'All dismissals not governed by rule 215 or not for want of jurisdiction or improper venue, shall operate as adjudications on the merits unless they specify otherwise. (Report 1943)'. The universal rule is that a dismissal with pejudice is ordinarily an adjudication on the merits. Many authorities have so held. 27 C.J.S. Dismissal & Nonsuit § 73, page 255, says 'A dismissal with prejudice is an adjudication on the merits of the case.' This was quoted with approval in Schuster v. Northern Company, 127 Mont. 39, 257 P.2d 249, 254, and in DeGraff v. Smith, 62 Ariz. 261, 157 P.2d 342, 345. See also Pulley v. Chicago, Rock Island & Pacific Railway Company, 122 Kan. 269, 251 P. 1100, 1101; Lake v. Wilson, 183 Ark. 180, 35 S.W.2d 597, 602, 38 S.W.2d 25 ('A dismissal with prejudice is as conclusive of the rights of the parties as if the suit has been prosecuted to a final adjudication adverse to the plaintiff'.); Mayflower Industries v. Thor Corp., 17 N.J.Super. 505, 86 A.2d 293, 296; Hannibal v. St. Louis Public Service Company, Mo.App., 200 S.W.2d 568, 571; Gonzalez v. Gonzalez, 6 Ill.App.2d 310, 127...