Powell v. Powell

• Decision Date: 13 March 1962
• Docket Number: No. 39375,39375
• Citation: 370 P.2d 909
• Parties: Linda Dawn POWELL, a Minor, by and through her mother and next friend, Dimie Powell, Plaintiff in Error, v. William S. POWELL, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 909

370 P.2d 909

1962 OK 63

Linda Dawn POWELL, a Minor, by and through her mother and next friend, Dimie Powell, Plaintiff in Error, v. William S. POWELL, Defendant in Error.

No. 39375.

Supreme Court of Oklahoma.

March 13, 1962.

Rehearing Denied April 24, 1962.

Syllabus by the Court.

1. Where several persons jointly commit a wrong resulting in injury to another, the liability against such joint wrongdoers to the person injured is joint and several, and a compromise of the claim and a release as to one will not operate to release the others unless such was the intention; and in such case the injured party may sue all or any of them in a single action or he may sue them separately; but, although several judgments may be thus obtained, there can be but one satisfaction and the acceptance of payment in full upon the judgment obtained against one of such persons will operate as a bar to the further prosecution of actions for the same injury against any of the others.

2. The applicability of the rule against splitting a cause of action is not affected by the fact that at some future date the prior judgment concerned might be challenged under the provisions of 12 O.S.1951, Sections 700 or 1031.

3. Where the pleadings raise no issues of fact, but only issues of law, judgment on the pleadings is proper.

Appeal from the District Court of McClain County; Elvin Brown, Judge.

Action by minor plaintiff, through her next friend, against defendant, for damages for injuries resulting from automobile accident. From a judgment for defendant rendered on the pleadings, plaintiff appeals. Affirmed.

George Bingaman, Thomas G. Smith, Purcell, for plaintiff in error.

Paul C. Duncan, Melvin F. Pierce, Lawrence E. Hoecker, Oklahoma City, Pierce, Mock Duncan, Couch & Hendrickson, Oklahoma City, of counsel, for defendant in error.

Floyd L. Walker, Kenneth L. Stainer, Gordon L. Patten, Roehm A. West, William K. Powers, C. Lawrence Elder, H. Gene Seigel, H. G. 'Bill' Dickey, Jack Gaither, Jeff Greer, Tulsa, Robert H. Neptune, Bartlesville, Jack E. Gordon, Claremore, Richard E. Romang, Enid, R. M. Mountcastle, Muskogee, Claud Briggs, O. A. Cargill, Jr., Paul Pugh, Oklahoma City, Lincoln Battenfield, Pryor, Homer Bishop and H. Corky Bishop, Seminole, amici curiae.

JACKSON, Justice.

In the trial court, plaintiff Linda Dawn Powell, a minor, by and through her mother and next friend, Dimie Powell, sued her father, William S. Powell, for damages for injuries received in an automobile accident, alleging that she was a passenger in the automobile being driven by her father, and that his negligence caused the accident.

Defendant filed an answer consisting of a general denial plus affirmative allegations to the following effect: that Linda Dawn Powell was his unemancipated minor daughter living in his house; and that said minor daughter, by her mother and next friend, had previously filed a suit for damages for the same injuries against the driver and owner of the other car involved, and had recovered a judgment therein which had been paid and satisfied in full.

Plaintiff filed an amended reply in which she admitted that she was a minor and defendant's daughter, and affirmatively pleaded, among other things, that the prior action was actually settled by compromise and agreement; that because of the minority of plaintiff, it was impossible for her to give a valid release of her claims, and that the only way in which she could obtain payment was upon an 'agreed judgment'. She admitted that the judgment in the prior cause was actually entered and thereafter satisfied, but alleged that it was merely a 'judgment approving the settlement' and that it discharged 'that tort-feasor only'.

In this connection, we note that the journal entry of judgment in the prior case, copy of which was attached to defendant's answer as an exhibit, was in the ordinary and usual form for a judgment in a contested action, and that it made no mention of any 'agreed settlement', and did not purport to discharge only the tort-feasors sued.

Upon those pleadings (petition, answer, amended reply), the defendant filed a motion for judgment on the pleadings. At the hearing thereon, plaintiff was permitted to amend her petition by interlineation, after which the motion for judgment on the pleadings was renewed and sustained and the case dismissed. The journal entry of judgment recites that '* * * the motion of the defendant for judgment on the pleadings be and the same is hereby sustained, and the plaintiff electing to stand on said proceedings, IT IS ORDERED that said action be and the same is hereby dismissed.' It thus appears that plaintiff had full opportunity to amend her pleadings further before final disposition was made of the matter, and elected not to do so. The trial court did not specify in the journal entry his reasons for sustaining the motion and dismissing the action.

Plaintiff appeals and in her first brief filed in this court presents one proposition only: that 'an unemancipated minor child may, through her mother and next friend, maintain an action against her father, who is protected by public liability insurance, for bodily injuries growing out of an automobile collision caused by the willful or wanton negligence of the father'. She presents a very able and interesting argument in support of this proposition, prefaced with the statement that the rule relied upon by the trial court was the general rule, well established in many other states but an open question in this jurisdiction, that 'an unemancipated minor has no cause of action against a parent in tort for injuries received'.

However, there was another ground upon which the trial court's judgment might have been based; it was stated by defendant in his answer brief as follows: 'there may be but one recovery for any one wrong; and an attempt to pursue a claim against remaining tort-feasors, after judgment and satisfaction as to one tort-feasor, is improper by reason of the attempt to split the cause of action'. We believe there is merit in this proposition and that the judgment of the trial court must be sustained on that basis. We will therefore not consider the proposition advanced by plaintiff in her original brief.

Defendant's proposition is answered by plaintiff in her reply brief as follows: under the allegations of plaintiff's amended reply, which are admitted to be true for purposes of the motion for judgment on the pleadings, the judgment in the prior action was actually merely a 'judgment approving the settlement' effected by the parties; plaintiff never intended 'to release or discharge any other negligent parties or to satisfy in full her claim for damages'. Plaintiff argues that in any event, since she is still a minor, she still has time, under applicable statutes, to 'apply in that case to make the record speak the truth', and therefore, she is not subject here to the rule against the splitting of a cause of action.

In support of her argument, plaintiff cites Harjo v. Johnston, 187 Okl. 561, 104 P.2d 985; Lowery v. Richards, 120 Okl. 261, 248 P. 622; and Griffin v. Galbraith, 114 Okl. 208, 247 P. 339; to the general effect that courts will protect with jealous care the rights of minors, and that where the guardian of a minor ward does not diligently and in good...