Rudloff v. Johnson, 16121.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation267 F.2d 708
Docket NumberNo. 16121.,16121.
PartiesRudolph RUDLOFF, Appellant, v. Rolan M. JOHNSON, Appellee.
Decision Date19 June 1959

Francis R. Stout, St. Louis, Mo. (Richard M. Stout, St. Louis, Mo., was with him on the brief), for appellant.

Russell N. MacLeod, St. Louis, Mo. (Robert L. Lyng and Lyng, MacLeod & Davidson, St. Louis, Mo., were with him on the brief), for appellee.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

This diversity action for damages growing out of an automobile collision was commenced in the Circuit Court of St. Louis County, Missouri. Rudolph Rudloff, appellant herein, was plaintiff and Rolan M. Johnson and Bertha F. Johnson were defendants. After the action was removed to the United States District Court, an answer was filed on behalf of the defendants which pleading was signed by the attorneys representing defendants' insurance carrier. Later, and on March 15, 1957, and through attorneys other than those who filed the answer, Rolan Johnson filed a counterclaim seeking damages for his personal injuries. Thereafter, and on June 6, 1957, this stipulation for dismissal was filed in the United States District Court:

"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 defendants 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 the defendants.
"The undersigned attorney for plaintiff does hereby waive his right to allowance by this Court of attorney fee as provided for by law, including allowances under provisions of title 28, Section 1923, U.S. C.A.
"Witness our hands at St. Louis, Missouri, this 7th day of May, 1957.

"Rudolph Rudloff Plaintiff. "Arthur E. McLeod Attorney for Plaintiff. "Hubert I. Binowitz Attorney for Defendant."

Mr. Binowitz, the attorney who signed the stipulation on behalf of defendants, in fact represented their liability insurance company, but did not represent Rolan Johnson in his claim for damages, upon which the counterclaim was based. On August 23, 1957, defendant Johnson filed an amended counterclaim, which plaintiff, through his present lawyers, unsuccessfully sought to have dismissed on the ground that the stipulation for dismissal constituted a full settlement of all claims arising out of the automobile collision, including Johnson's counterclaim.

Upon a trial of the counterclaim Johnson recovered a substantial verdict and judgment, and after unavailingly moving for judgment n. o. v. plaintiff appealed.

We shall first consider the point here presented that the stipulation for dismissal operated to estop appellee from prosecuting his counterclaim.

Rule 41(a) (1) of Federal Rules of Civil Procedure, 28 U.S.C.A., dealing with voluntary dismissal and the effect thereof, provides two methods whereby an action may be dismissed by the plaintiff without order of court. One "(i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs," or "(ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, * * *." (Emphasis supplied.) Thus it is evident that the stipulation entered into by the parties, being signed by plaintiff, his attorney, and the attorney responsible for the defense to plaintiff's allegations of negligence, effectively dismissed plaintiff's (appellant's) petition without an order of court. But it by no means follows that such dismissal carried with it the counterclaim, which, as we have seen, was of record when the stipulation was filed. In the first place the logical construction to be placed upon the stipulation itself is that it operated to dismiss only appellant's cause of action. It made no mention of the counterclaim, but rather recited "* * * 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 * * *" (Emphasis supplied.) While we are mindful that the stipulation is prefaced with the statement "(a)ll of the matters and things in controversy in the above entitled cause having been adjusted, compromised and finally settled," etc., we believe that consideration of the stipulation in context compels the conclusion that the parties intended to limit the effect of the stipulation to dismissal of appellant's cause of action.

Secondly, and of vital importance, are the circumstances surrounding the execution and filing of the stipulation. Prior to the trial, Judge Weber held a conference with the attorneys appearing on this appeal in connection with his refusal to dismiss the counterclaim. Without dispute, it was developed that neither appellee nor the personal attorneys representing him on his counterclaim, had been consulted with respect to the dismissal of appellant's petition, and that the settlement with appellant was effected by appellee's liability insurance company alone. As we have seen, the stipulation, although being signed personally by appellant and his personal attorney, was not signed by appellee or his attorneys who instituted and prosecuted the counterclaim on his behalf. So far as this record is concerned neither appellee nor his attorneys was aware of the dismissal of appellant's cause of action until after the stipulation was filed. The case of England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, relied upon by appellant at this point, is clearly distinguishable. There, the defendant-employer, which had counterclaimed for property damages, settled with plaintiff, the parties stipulating that plaintiff's action be dismissed with prejudice. The defendant-employee, through separate attorneys, had counterclaimed for personal injuries. The stipulation expressly stated that the personal injury counterclaim of the defendant-employee remained outstanding, but no mention was made of the employer's pending counterclaim for property damages. We do not understand that the court's action in holding that dismissal of the counterclaim for property damages was an implied condition of the release and within the contemplation of the parties, in any way declares the substantive law of Missouri to be, as contended by appellant, that since the stipulation here did not expressly except appellee's counterclaim, it was automatically disposed of, although neither appellee, nor his personal attorneys, was a party to the agreement. Of particular interest in regard to the independent counterclaim of the defendant-employee in the England case is this observation by the Court, 225 S.W.2d at page 369: "The stipulation of settlement expressly excepted the counterclaim of Ernie Davenport for the obvious reason that he was not a party to the settlement and was represented by other counsel." Under the circumstances here, we must hold that the trial judge properly permitted appellee to prosecute his counterclaim. Cf. Pioche Mines Consol. v. Fidelity-Philadelphia Trust Co., 9 Cir., 206 F.2d 336, certiorari denied 346 U.S. 899, 74 S.Ct. 225, 98 L.Ed. 400.

Alternatively, the rather novel contention is advanced by appellant that when the trial court refused to dismiss the counterclaim, appellant should have been permitted to ignore the dismissal of his petition and allowed to try the issues tendered thereby. There was and is no suggestion that the stipulation was induced or procured by fraud, that there was a failure of consideration or that any other reason exists sufficient in law to set it aside. It was intended by appellant as a full settlement of his claim and a dismissal of his lawsuit, it had precisely that effect, and appellant is bound thereby.

As observed at the outset, this litigation had its origin in an automobile collision. The case was submitted to the jury on the theory that appellant was guilty of humanitarian negligence, as that doctrine has been established by Missouri law. Since appellant's principal assignment is focused upon failure of the proof to make a submissible case under the humanitarian doctrine, a review of the evidence in the light most favorable to appellee is in order.

United States Highway No. 61-67 in St. Louis County, Missouri and at the place of occurrence, is made up of four lanes of concrete, each lane being approximately 10 feet wide, with an overall width of 40 feet. Appellee had been operating his automobile, with his wife Bertha F. Johnson as a passenger therein, in a southwardly direction. Desiring to stop for the night at a tourist court which was situated to the east of the highway, appellee pulled off the pavement and onto the shoulder on the west side, which was also the entrance to a service station — he then turned his vehicle so that it was facing the pavement for the purpose of crossing the highway to gain entrance to the tourist court. It was about 6:15 or 6:30 o'clock P.M. Central Standard Time, and although it was "dusk," lights were not required for driving. The weather was clear, pavement dry, visibility good. Before attempting to cross the highway, appellee "glanced" to the south and saw appellant's automobile approaching 700 or 750 feet away, "and I immediately started across the road." When the front of appellee's automobile was approximately 2 feet over the center line of the highway, appellee again "glanced" to his right and saw appellant's automobile 300 or 325 feet away. At that time appellee's automobile was traveling at a speed of 5 miles per hour, the approaching vehicle was straddling the line dividing the two lanes for northbound traffic and traveling at a speed estimated by ap...

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    ...Davis v. Quality Oil Co., Mo.Sup., 1962, 353 S.W.2d 670, 673-674; Noland v. Pastor, 8 Cir., 1951, 191 F.2d 1009, 1012; Rudloff v. Johnson, 8 Cir., 1959, 267 F.2d 708, 713. We emphasize that among these requisites are, first, that the defendant's duty to act does not arise until the plaintif......
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