Portell v. Pevely Dairy Co.

Decision Date12 April 1965
Docket NumberNo. 50575,No. 1,50575,1
Citation388 S.W.2d 790
PartiesMyrtie G. PORTELL, Plaintiff, Appellant, v. PEVELY DAIRY COMPANY, a Corporation, Defendant, Respondent, and James W. Bannon, Defendant, Respondent
CourtMissouri Supreme Court

Lashly, Lashly, Rava, Hyndman & Rutherford, William I. Rutherford, St. Louis, for plaintiff, appellant.

Albrecht & Homire, Edmund C. Albrecht, Jr., James L. Homire, Jr., St. Louis, for defendant-respondent Pevely Dairy Co.

WELBORN, Commissioner.

Myrtie G. Portell brought suit for $25,000 damages against Pevely Dairy Company (referred to herein as 'Pevely') and James W. Bannon. The action arose out of a collision between Mrs. Portell's automobile and a Pevely delivery truck, driven by Bannon, a Pevely employee. Bannon filed a counterclaim against Mrs. Portell for his injuries in the collision. On a jury trial, a verdict was returned against the plaintiff and in favor of both defendants on Mrs. Portell's action. A $1500 verdict was returned in Bannon's favor on his counterclaim. Mrs. Portell's motion for new trial on the counterclaim and her cause of action was overruled and she appealed.

On January 31, 1964, a stipulation was filed in the circuit court for the dismissal of Bannon's counterclaim. The stipulation reads:

'By consent of the parties, judgment for defendant Bannon on his counterclaim set aside and for naught held. All matters in controversy in regard to said counterclaim having been settled said counterclaim is dismissed with prejudice with the express stipulation and agreement that said dismissal will in no manner affect or prejudice plaintiff's claim now pending.'

The stipulation was signed by the attorney for Bannon and an attorney for plaintiff.

Pevely has moved to dismiss the appeal, contending that the dismissal, with prejudice, of the counterclaim operates as an adjudication on the merits, and that the settlement of the counterclaim operates to release Pevely, whose liability was dependent upon the negligence of Bannon.

In opposition to the motion of Pevely, plaintiff has filed an affidavit of the attorney who executed the stipulation on her behalf. By this affidavit, the attorney states that he was the attorney for plaintiff's insurance carrier and represented her only on Bannon's counterclaim and not on her claim for personal injuries. He states that he consulted neither the plaintiff nor the attorney representing her on her personal injury claim regarding the stipulation for dismissal, although he did inform the latter of the intention to settle the counterclaim.

In this situation, we do not consider that the rule applied in Max v. Spaeth, Mo.Sup., 349 S.W.2d 1, relied upon by Pevely, is applicable. The question is governed by the rule applied in Kirtley v. Irey, Mo.Sup., 375 S.W.2d 129, 134, that "a liability insurer's settlement of a claim against the insured, made without the insured's consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts." Annotation, 32 A.L.R.2d 937, 938. See Rudloff v. Johnson, 8th Cir., 267 F.2d 708. The motion to dismiss the appeal is overruled.

The nature of the issues requires only a summary of the facts. The collision occurred in St. Louis County on the morning of October 3, 1960, while plaintiff was going to work. She was driving south on Pennsylvania Avenue, between Page Boulevard and St. Charles Rock Road. Rain was falling at the time. Plaintiff's version of the collision was that she reached the crest of a hill and saw the Pevely truck stopped on the shoulder, approximately 150 feet ahead and on her right. The truck, driven by Bannon, pulled onto Pennsylvania in front of plaintiff, as if to make a U-turn. Plaintiff was unable to stop and her car collided with the truck in the inside southbound lane of the four-lane roadway. Plaintiff claims to have suffered injuries which we need not here detail.

Bannon's version was that his truck had skidded into a ditch on the east side of Pennsylvania as he was going north. A tow truck pulled the truck out and across the road, headed south, on the shoulder. Bannon stated that he looked for southbound traffic, and, seeing none, started to pull onto Pennsylvania, intending to go south for approximately a block in order to make a U-turn and continue northward. As he started to drive onto the pavement, he saw plaintiff's vehicle approaching at the crest of a hill, southbound in the inside lane. When he saw plaintiff's automobile, he stopped, with his truck partly on the pavement and partly on the shoulder. Plaintiff's vehicle came directly toward the truck, 'skidding at an angle,' and collided with the stopped vehicle, causing injury to Bannon.

By its answer, Pevely admitted that Bannon was its agent and that he was acting within the scope of his authority at the time of the collision.

On his counterclaim, Bannon submitted an instruction charging plaintiff with negligence in several respects. Among the grounds specified was the failure of plaintiff to 'keep and maintain control of her automobile at all times.' Plaintiff, on this appeal, contends that, under Miles v. Gaddy, Mo.Sup., 357 S.W.2d 897, and the cases therein cited, the submission of failure to control as a specification of negligence made the instruction erroneous. She further contends that such error, although in the submission of the counterclaim, requires the reversal of the judgment in favor of Pevely and Bannon on her original action.

Bannon filed no brief in this court. Pevely, in its brief, does not attempt to defend the instruction. Instead, Pevely's position is that the alleged error was not specifically asserted...

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11 cases
  • Burtrum v. U-Haul Co. of Southern Missouri
    • United States
    • Missouri Court of Appeals
    • September 12, 1983
    ...judgment that justice requires the latter's reversal even though no error has been preserved in respect thereto. Portell v. Pevely Dairy Company, 388 S.W.2d 790 (Mo.1965). That doctrine should not be applied to preserve error for a party who had an opportunity to do so but did not. Mt. Vern......
  • Gumm v. Herman, 8448
    • United States
    • Missouri Court of Appeals
    • February 22, 1966
    ...prejudicially erroneous.' Miles, supra, 357 S.W.2d at 901(3); Bouchillon, supra, 399 S.W.2d at 639. See also Portell v. Pevely Dairy Co., Mo., 388 S.W.2d 790, 792, 794(4); Charles F. Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522, 536(17); Donaldson v. Manzella, Mo., 338 S.W.2d 78, 83(3); Glow......
  • Cover v. Phillips Pipe Line Co.
    • United States
    • Missouri Supreme Court
    • June 8, 1970
    ...so interrelated and interdependent that the trial of one necessarily involves the trial of the other. Contractor cites Portell v. Povely Dairy Co., Mo.Sup., 388 S.W.2d 790, and Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, and cases cited, including Bramblett v. Harlow, Mo.App., 75 S.W.2......
  • Bruner v. Workman Oil Co.
    • United States
    • Missouri Court of Appeals
    • July 9, 2002
    ...parts of the judgment directed to appellants' counterclaims and to Count I of respondent's petition be consistent. Portell v. Pevely Dairy Co., 388 S.W.2d 790, 793 (Mo.1965); Bramblett v. Harlow, 75 S.W.2d 626, 633 5. Point III contends the trial court erred in finding appellants liable to ......
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