State ex rel. Normandy Orthopedics, Inc. v. Crandall

• Decision Date: 17 May 1979
• Docket Number: No. 60678,60678
• Citation: 581 S.W.2d 829
• Parties: STATE of Missouri ex rel., NORMANDY ORTHOPEDICS, INC., and William F. Luebbert, D.O., and William E. Button, D.O., Relators, v. William H. CRANDALL, Jr., Judge of the Circuit Court, County of St. Louis, Division One, and His Successors as Judges of Said Division, Respondent.
• Court: Missouri Supreme Court

Page 829

581 S.W.2d 829

STATE of Missouri ex rel., NORMANDY ORTHOPEDICS, INC., and William F. Luebbert, D.O., and William E. Button D.O., Relators, v. William H. CRANDALL, Jr., Judge of the Circuit Court, County of St. Louis, Division One, and His Successors as Judges of Said Division, Respondent.

No. 60678.

Supreme Court of Missouri, En Banc.

May 17, 1979.

Rehearing Denied June 19, 1979.

Michael J. Pitzer, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for relators-appellants.

George R. Gerhard, William Kelleher, St. Louis, for respondents.

RENDLEN, Judge.

This is prohibition. The Missouri Court of Appeals, St. Louis (now Eastern) District, transferred the cause under Rule 83.02 after opinion, that we might reexamine the following question: Under what conditions does an injured party's general release of an original tortfeasor operate to bar such party's action against subsequent tortfeasors for alleged malpractice in the treatment of the original injuries?

The facts are not in dispute. A one-car accident occurred on October 29, 1970, in which Salvatore Taormina, riding as a guest in the automobile driven by James LaMantia, sustained a fractured left femur. Relators, osteopathic physicians organized in a professional corporation, treated Taormina for his injuries.

On March 19, 1972, Taormina brought suit against LaMantia alleging that because of defendant's negligence, "plaintiff sustained a fracture . . . of the left femur; . . . (and) was obliged to submit to an open reduction of said fracture in an operative procedure whereby a nail was inserted down the shaft of the femur, . . . (and) he has been caused to become permanently lame, and that his ability to ambulate, walk, work and labor in the future have been seriously impaired." The petition made no express reference to any negligence or otherwise actionable conduct by relators here. On August 22, 1972, that suit was settled. Receiving $9,000, Taormina executed his written release and the action was dismissed with prejudice under a stipulation providing, "Come now the parties in the above entitled cause and hereby expressly stipulate and agree that the same has been fully and satisfactorily compromised and settled, and is hereby dismissed, with prejudice, at the cost of the defendant." As hereinafter discussed, the terms of the petition and stipulation may be pertinent in further proceedings to the issue of intent.

On October 25, 1972, Taormina filed suit against relators alleging that during treatment they negligently inserted an intramedullary nail of improper length. Neither the original, nor an amended pleading filed in February, 1974, contained allegations of negligent treatment rendered between March 19, 1972, the date Taormina filed his original petition against LaMantia, and October 25, 1972, the date of filing his petition alleging relators' malpractice.

Relators, raising the release as a bar, filed their motions to dismiss and for summary judgment to which Taormina responded with affidavits accompanied by a letter stating that when executing the release he had intended to release only LaMantia and the insurer and that the $9,000 received was not in full satisfaction of his damages. Relators moved to strike these affidavits contending they sought to vary the terms of the release in violation of the parol evidence rule, and although that motion was not specifically ruled, the trial court's order of September 13, denying relators' motions to dismiss and for summary judgment effectively disposed of the motion to strike. Relators petitioned for prohibition and the Court of Appeals, though issuing its writ, stated, "We would affirm the judgment but, in view of the state of the law as reflected in Rogers v. Piper, this case is ordered transferred to the Supreme Court under Rule 83.02 for the purpose of reexamining the existing law." We treat the cause as having been filed originally in and the preliminary writ issued by this court. State ex rel. J. D. S. v. Edwards, 574 S.W.2d 405 (Mo. banc 1978).

The general release executed by Taormina appears to be a typical printed form reading in part:

"I. First Party, for himself, or any one claiming through or under him, . . . agrees to release, and does hereby fully and forever release, acquit, and discharge Second Party, his heirs . . . and any and all other persons, firms, and/or corporations whomsoever from any and all liability now accrued or hereafter to accrue on account of any and all claims or causes of action which First Party . . . now has or may hereafter have against Second Party . . . and any and all other persons, firms and/or corporations whomsoever, in any way arising from or out of any and all injuries, losses and damages now known or that may hereafter develop . . . ."

The release also contained the words, "This is a Release in Full."

The contention that an instrument containing such language constitutes a bar to subsequent actions is usually said to rest on the principle that a plaintiff may recover only once for his injuries. ¹ Construing release provisions such as "This is a release in full," and those purporting to comprehend "any and all actions," and "any and all liability now accrued or hereafter to accrue" from one incident, Missouri cases have held such language evidences full satisfaction of plaintiff's claims. See, e. g., Abbott v. City of Senath, 243 S.W. 641 (Mo.1922); Kestner v. Jakobe, 412 S.W.2d 205 (Mo.App.1967). The fact that the releases in those cases named only the tortfeasor who provided the agreed consideration did not alter the results. Id. In New Amsterdam Casualty Co. v. O'Brien, 330 S.W.2d 859 (Mo.1960), it was held that Full satisfaction was shown though the release named only one tortfeasor and recited consideration of one dollar " 'and other good and valuable consideration.' " While none of the cited cases concerned independent successive tortfeasors, others involving such factual situations have reached similar results. In McQueen v. Humphrey, 421 S.W.2d 1 (Mo.1967), a settlement was entered between the minor plaintiff (by her next friend) and "(d)efendants and those who might be liable on their behalf," purporting to cover "the cause of action or claim of the (p)laintiff in full and forever." Plaintiff had not sued the physicians at the time of settlement. The court there ruled that the release precluded a subsequent action for malpractice because there was "nothing in the record to indicate that plaintiff did not consider the settlement as complete satisfaction for her injures, . . ." 421 S.W.2d at 3. Similarly, in Rogers v. Piper, 543 S.W.2d 261 (Mo.App.1976), cited by the Court of Appeals' opinion in the case at bar, the release stated: "RELEASE AND FOREVER DISCHARGE Jack T. Lemmons, his agents and servants, and all other persons, firms and corporations of and from any and all liability, actions, claims, demands or suits whatsoever, which claimants now have or may hereafter have, on account of or arising out of personal injuries or damage to person or property, or impairment of or damage to any right, including loss of time, loss of services of society, and expenses, or other damage sustained by or accruing to the undersigned as the result of an accident, casualty or event which occurred on or about the 26th day of June, 1970, at or near 10300 South 71 Highway in Kansas City, Jackson County, Missouri" and "that the above mentioned sole consideration is accepted in full compromise, settlement, accord and satisfaction of all the aforesaid claims and demands, including all consequences thereof which may hereafter develop as well as those already developed or now apparent." The release further stated, "that this agreement is in compromise and settlement of all claims of every kind." Relying on McQueen, the court noted that nothing was shown to contradict plaintiff's having received full and complete satisfaction in return for the release and that it barred the subsequent malpractice action.

These cases do not squarely rule that such language in a release indicates full satisfaction As a matter of law. The oft-cited decision of Abbott relied heavily on the fact that no extrinsic evidence of the parties' intent or adequacy of consideration had been introduced at trial. 243 S.W. at 642. Similarly the court in O'Brien stated that in view of the third-party plaintiff's election not to reveal at trial the "good and valuable consideration" he had received for the release, "he is now in no position to urge upon this court any factor for consideration in determining the effect of the release other than the instrument itself; and, commendably, he does not." 330 S.W.2d at 865. Kestner noted that no extrinsic evidence existed indicating plaintiffs "claimed or demanded anything less than full satisfaction." 412 S.W.2d at 208. McQueen commented that the plaintiff did not introduce evidence extrinsic to the release instrument seeking to vary its terms. 421 S.W.2d at 3; and the court in Rogers stated, 543 S.W.2d at 265:

Finally Rogers did not avail himself of the right to file affidavits or present any other matter to the court which would be proper under Rule 74.04 in order to show the existence of any fact issue. Absent a showing of any fact issues, the question here presented as to the effect of the release on whether or not Rogers had in fact received full satisfaction for all of his injuries, including the alleged medical malpractice, was a question of law . . . . ²

These cases may be distinguished from that at bar by the fact that plaintiff offered evidence as to partial satisfaction for his injuries and the intended scope of the release. Accordingly, none are overruled except to the extent they may be contrary to our present holding that a release purporting to comprehend any and all claims arising from a particular incident, including claims against unspecified strangers to the agreement, does not...