Muckey v. Baehr
| Decision Date | 22 January 1944 |
| Docket Number | 35934. |
| Citation | 145 P.2d 164,158 Kan. 19 |
| Parties | MUCKEY v. BAEHR et al. |
| Court | Kansas Supreme Court |
Rehearing Denied March 10, 1944.
Syllabus by the Court.
A litigant who voluntarily satisfies a judgment against him cannot appeal therefrom.
Where insured, having been notified that, because of failure to co-operate in defense of action, automobile liability insurer would not pay judgment against him, paid judgment in full and instituted action against insurer for reimbursement, insurer could not thereafter appeal from satisfied judgment against insured, though execution had been issued and placed in hands of sheriff for collection of judgment when it was paid by insured.
In an action for damages, where plaintiff recovers a money judgment and defendant voluntarily pays it in full, neither the defendant nor anyone in his behalf may appeal from the judgment.
Appeal from District Court, Miami County; Garfield A. Roberds Judge.
Action by Ray Muckey against John Baehr and another for damages to plaintiff's truck sustained in a collision with named defendant's automobile, wherein named defendant filed a cross-petition for personal injuries and damage to his automobile. Judgment for plaintiff, and, after payment thereof by named defendant, his insurer acting in his name appeals and plaintiff moves to dismiss the appeal.
Appeal dismissed.
Lee E Weeks, of Kansas City (Arthur J. Stanley, Arthur J. Stanley Jr., J. E. Schroeder, and Leonard O. Thomas, all of Kansas City, on the brief), for appellant.
Harry K. Allen, of Topeka (Karl V. Shawver, of Paola, and L. M Ascough, of Topeka, on the brief), for appellee.
The appeal here is from a judgment for plaintiff in an action for damages to his truck sustained in a collision with defendant's automobile.
Briefly stated, the pertinent facts are as follows: Plaintiff, a resident of Missouri and engaged in the business of an irregular common carrier, owned a certain Chevrolet truck, which on the day in question was being driven by his employee, Leo Trackwell, north on U.S. 50, a paved highway in Johnson county. The defendant Baehr about the same time was driving his Ford automobile south on the same highway and directing his attention to a train passing on a nearby railroad track. As he approached the truck he permitted his car to drift upon his left hand side of the pavement in front of the oncoming truck. A collision resulted in which the truck and the automobile were damaged and Baehr was injured. Plaintiff sued Baehr for damages to his truck, alleging the collision resulted from defendant's negligence. Baehr carried a policy of liability insurance issued by the American Indemnity Company, in compliance with the terms of which the insurer provided attorneys to represent him. Through them Baehr filed an answer denying liability and a cross-petition seeking to recover damages to his automobile and for personal injury, alleging the collision resulted from the negligence of plaintiff's driver. These allegations were controverted by an answer to the cross-petition.
A jury trial, February 9, 1943, resulted in a judgment for plaintiff for $1625. Defendant's motion for a new trial was filed in due time. On February 16, 1943, Baehr's insurer, by its attorney, mailed a registered letter to Baehr which reads:
Upon receipt of the letter Baehr employed an attorney to represent him personally. Upon the hearing of the motion for a new trial, March 2, 1943, Baehr was represented by his personal attorney and by an attorney of the insurer, both of whom argued in support of...
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Almack v. Steeley, 100
...(1983) (Defendant acquiesced in judgment by allowing bank account to be garnished without filing a stay of execution.); Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164 (1944) (Even though execution was in hands of the sheriff at the time the judgment was paid, defendant acquiesced in judgment be......
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Radioear Corp. v. Crouse
...I would conclude that such conduct was voluntary and waived any subsequent relief. Griffis v. Harmon & Crane, supra; Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164 (1944). The majority herein and, of course, the appellant assert that appellant found it to his advantage to satisfy the judgment a......
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Kemp v. Hudgins
...his argument that payment by an insurer precludes an insured's right to appeal due to acquiescence. Kemp also cites to Muckey v. Baehr, 158 Kan. 19, 145 P.2d 164 (1944), where a defendant was told by his insurer that any further defense provided to him was to be provided under a reservation......