Slankard v. Thomas

• Decision Date: 31 October 1995
• Docket Number: 19797,Nos. 19712,s. 19712
• Citation: 912 S.W.2d 619
• Parties: Lela Jeaneen SLANKARD, Plaintiff/Appellant, v. John A. THOMAS, Defendant/Cross-claimant/Appellant, and Anita Oakes, Defendant ad litem for Wendell Woosley, Deceased, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 619

912 S.W.2d 619

Lela Jeaneen SLANKARD, Plaintiff/Appellant, v. John A. THOMAS, Defendant/Cross-claimant/Appellant, and Anita Oakes, Defendant ad litem for Wendell Woosley, Deceased, Defendant/Respondent.

Nos. 19712, 19797.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 31, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 22, 1995.

Application to Transfer Denied

Jan. 23, 1996.

Gayle L. Crane and Donald E. Sotta, Joplin, for Appellant Slankard.

Russell A. Ward, Joplin, for Appellant Thomas.

William J. Lasley, Flanigan, McCanse & Lasley, Carthage, for Respondent Oakes.

GARRISON, Judge.

These appeals involve two injury claims arising from an automobile accident on May 26, 1988 in Newton County, Missouri. The accident in question occurred when a westbound pickup truck occupied by Appellant Lela Jeaneen Slankard (Slankard), ¹ and Defendant/Appellant John A. Thomas (Thomas) collided with an eastbound vehicle operated by Wendell Woosley (Woosley). Both Slankard and Thomas were injured, and Woosley died as a result of the collision. Slankard filed suit against both Thomas and Woosley (by his defendant ad litem, Anita Oakes, hereafter referred to as "Oakes" or "Oakes/Woosley") alleging that she was a passenger in the truck operated by Thomas, and that both he and Woosley were negligent in causing the collision. Thomas later filed a cross-claim against Oakes/Woosley seeking to recover damages for his injuries.

Slankard settled her claim against Thomas and executed a release and stipulation for dismissal. Oakes thereafter filed a motion for summary judgment on the theory that the release was a general release which relieved all potential tort-feasors from liability, including Woosley. Slankard appeals, in Case No. 19712, from the trial court's order sustaining that motion.

Thomas proceeded to trial on his claim against Oakes/Woosley. Slankard, called as a witness by Thomas, was cross-examined about the settlement of her claim against Thomas. During closing argument, the attorney for Oakes/Woosley argued that Slankard, not Thomas, had been driving the vehicle they occupied, and that she and Thomas had testified that Thomas was the driver to give Slankard an opportunity to collect against both Thomas and Oakes/Woosley. Following a jury verdict in favor of Oakes/Woosley, Thomas appeals in Case No. 19797, claiming error in connection with such testimony and closing argument.

CASE NO. 19712

Slankard's allegations of error on this appeal relate to the entry of the summary judgment in favor of Oakes/Woosley based on the release which she executed. The propriety of a summary judgment is purely an issue of law which an appellate court reviews de novo on the record submitted. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria used by an appellate court in reviewing the entry of a summary judgment are no different from those which should be employed by the trial court. Id.

In her first point relied on, Slankard contends that the trial court erred in sustaining Oakes/Woosley's motion for summary judgment because, in doing so, it construed the release she signed, in settling with Thomas, as a general release contrary to the provisions of § 537.060. ² That statute provides, in part:

When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide....

The release signed by Slankard is set out, in pertinent part, below. ³ The trial court held, in finding a lack of a genuine issue as to any material fact, that the release was a general release and a complete bar to any claim Slankard had against Oakes/Woosley.

Slankard acknowledges in her brief that it may be argued "that the terms of the Release do provide for release of all tort-feasors" but contends that this is contrary to the intent of the statute. In doing so, she argues that while the release contained "overly broad language," it did not specifically release or mention Oakes/Woosley, there was no contractual relationship between Thomas and Oakes/Woosley, and Oakes took no part in the negotiation process.

Slankard relies exclusively on Elsie v. Firemaster Apparatus, 759 S.W.2d 305 (Mo.App.E.D.1988). In Elsie, the plaintiff sued his employer claiming damages arising from an automobile accident. He also filed a separate suit against the driver of another vehicle involved in the accident and that driver's employer. Plaintiff then settled with his employer, Boswell Oil Company, Inc., and executed a release which stated that he did thereby "release and forever discharge Boswell Oil Company, Inc., its heirs, executors, administrators, successors, insurers and assigns ... from each and every right or claim" which he then had or might thereafter have, and that it was his full intention to forever resolve any and all claims he had against "Boswell Oil Company, Inc." Id. at 307-08. The appellate court noted that pursuant to § 537.060, the release of one tort-feasor does not discharge other tort-feasors unless the terms of the agreement so provide. Id. at 307. The court held, however, that the release in Elsie did not release the other defendants and reversed the entry of a summary judgment in their favor. Id.

In the instant case, the release named not only Thomas and his insurer, specifically, but it also described the persons released as "all other persons, firms, and corporations whomsoever." Similar language appeared in a release signed by the plaintiff in Ellis v. Reisenbichler, 712 S.W.2d 468 (Mo.App.E.D.1986). ⁴ In Ellis, the court held that the release was a "general release and by its express terms releases plaintiff's entire cause of action." Id. at 469. It also acknowledged § 537.060 and its provision that "a release given to one or two or more persons does not discharge any other tort-feasor ... 'unless the terms of the agreement so provide....' " The court held, however, that the release in question did, by its express terms, release the other tort-feasors. Id.

In Rudisill v. Lewis, 796 S.W.2d 124 (Mo.App.W.D.1990), releases executed by plaintiffs, in describing the persons released, named one tort-feasor and his insurer specifically, but also included the following: "and all other persons and organizations who are or might be liable, from all claims for all damages which I sustained...." Id. at 126-27. The court said that the releases "expressly relieve all actual or potential tortfeasors from liability and are therefore not silent as to respondent" and found that § 537.060 did not require a different result because it "does not require the court to ignore a plain, clear divestiture of all claims in a general release." Id. at 128.

The release in the instant case is not silent as to the identity of others within its scope. Thus, § 537.060 was not operative to preserve any claims Slankard may have had against Oakes/Woosley. Rather, the release is general because it specifically applied to "all other persons."

The release in question also recited that Slankard was releasing "any and all claims, demands, obligations, actions, and causes of action, whether known or unknown, and whether accrued or yet to accrue...." It then provided that $70,000 was being paid "in full compromise, settlement, and satisfaction of the aforementioned claims and actions...." It is, therefore, clear that the release not only specifically named "all other persons," which would include Oakes/Woosley, but it also acknowledged satisfaction of all claims arising from the accident in question.

In Rudisill v. Lewis, 796 S.W.2d at 127, the court, citing Liberty v. J.A. Tobin Const. Co., 512 S.W.2d 886, 890 (Mo.App.W.D.1974), acknowledged that "the deciding factor in characterizing a release as general is 'what is released not who is released by the document....' " A party is entitled to only one satisfaction for the same wrong, and receipt of full satisfaction from either tort-feasor for the wrong for which both are liable bars plaintiff's recovery from the other for the same injury. Walihan v. St. Louis-Clayton Orthopedic Group, Inc., 849 S.W.2d 177, 180 (Mo.App.E.D.1993); Liberty v. J.A. Tobin Const. Co., 512 S.W.2d at 889-90. Slankard's first point is denied.

In Slankard's second point, she contends that the trial court erred in entering the summary judgment because, in construing the release as plain and unambiguous, it failed to consider the intent of the parties, the fact that general language in a release is subordinate to that which is specific, and that parol evidence is admissible to explain ambiguous language in a release.

In construing a release, as with any contract, the intention of the parties governs and any question concerning the scope and extent of the release is to be determined by what may fairly be said to be in the parties' contemplation, which in turn is resolved in the light of all the surrounding facts and circumstances under which the parties acted. State ex rel. Normandy Orthopedics, Inc. v. Crandall, 581 S.W.2d 829, 833 (Mo. banc 1979); Montrose Sav. Bank v. Landers, 675 S.W.2d 668, 670-671 (Mo.App.W.D.1984). The intent of the parties, however, is governed by the language used in the release. Troxell v. Welch, 687 S.W.2d 902, 906 (Mo.App.W.D.1985); Adriatic Ins. Co. v. Brewer, 657 S.W.2d 692, 693-94 (Mo.App.E.D.1983); State ex rel. Stutz v. Campbell, 602 S.W.2d 874, 876 (Mo.App.E.D.1980). See also Rudisill v. Lewis, 796 S.W.2d at 126. Plain language forecloses speculation about intent of the parties. Clark v. Booth, 660 S.W.2d 316, 318 (Mo.App.W.D.1983).

Slankard argues that she did not intend to release her claims against Oakes/Woosley. Several Missouri cases have held or indicated, however, that release...