Young v. Jack Boring's, Inc.

CourtCourt of Appeal of Missouri (US)
Citation540 S.W.2d 887
PartiesLee YOUNG et al., Respondents, v. JACK BORING'S, INC., et al., Appellants. Mo. KCD27132.
Decision Date01 June 1976

Page 887

540 S.W.2d 887
Lee YOUNG et al., Respondents,
JACK BORING'S, INC., et al., Appellants.
Mo. KCD27132.
Missouri Court of Appeals, Kansas City District.
June 1, 1976.
Motion for Rehearing and/or Transfer Denied July 6, 1976.
Application to Transfer Denied Oct. 12, 1976.

Page 889

Laurence R. Tucker, Gordon N. Myerson, Kansas City, for appellants; Morris, Mitchell,

Page 890

Larson, King, Stamper & Bold, Kansas City, of counsel.

Walter R. Simpson, George H. Barr, Kansas City, for respondents; Sheridan, Sanders, Carr, White & Mason, Kansas City, of counsel.


SHANGLER, Presiding Judge.

The plaintiffs Young, husband and wife, had judgment against defendant Jack Boring's Inc., for $8000 actual and $25,000 punitive damages on a pleading for malicious prosecution. The cause of action arose when Boring's employees repossessed from the Youngs a television set under a replevin which issued from the magistrate on the affidavit of the defendant, and which they found later that day, had been taken by mistake. The replevin action was terminated by the Boring's dismissal without prejudice, and this action ensued.

The original petition was in multiple counts. Count III was directed against Constable Tince Walker who falsely returned the writ non est when, in fact, he had served the plaintiffs and removed their property. The constable failed to answer and the plaintiffs took judgment by default against him on Count III of the original petition. This judgment was set aside within the month on stipulation, and the constable pleaded over.

Then, on October 29, 1973--twenty-one months after the original petition and two weeks before the trial--the plaintiffs amended their petition to allege counts for malicious prosecution and loss by the wife of consortium against Boring's and several employees. The pleading did not reiterate the separate cause of action against the constable on which the plaintiffs had by the brought an independent suit. Before the jury was empaneled, the plaintiffs dismissed Count II of the amended petition and proceeded to trial on the claim for malicious prosecution. At submission, only Boring's remained, and the judgment was taken against that defendant alone.

On the morning of the trial, the defendant Boring's moved the dismissal of the petition on the ground that the suit had been fully compromised and settled and that the plaintiffs were bound by that contract to accept $1650 in satisfaction of their claim and to discontinue the litigation. 1 The in canera discussion on the motion discloses that counsel for Boring's informed counsel for the plaintiffs four days earlier of his intention, at the day of trial, to answer the amended petition to raise the issue that the cause of action had been compromised and settled and that he would then also move the dismissal of the petition for that reason.

The plaintiffs argued for the denial of both the motion and the defense on grounds that they were untimely as pleadings and had been, in any event, substantively abandoned by the nineteen-months lapse between the purported settlement agreement and the assertion of that defense in bar of the action. The court concluded, as a matter of law, that the motion was not timely made and the substance of it abandoned, and ordered the accord and satisfaction defense stricken from the answer. 2

Page 891

The defendant Boring's contends that the denial of the motion to dismiss and the deletion of the accord and satisfaction defense from their answer to the amended petition were errors of law and require reversal. The defendant argues here that Boring's was entitled as of right to an answer timely filed under the provisions of Rule 55.33(a):

A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

The amended petition was filed on October 29, 1973, and defendant was not served until November 9, 1973. The answer to the amended petition was filed with the court on the morning of trial, November 12, 1973, and thus within the ten-day prescription of the rule.

The rules of civil procedure intend that a trial court shall allow amendments to pleadings liberally, but such a purpose does not bind a court to such a course. Parsons Construction Co. v. Missouri Public Service Co., 425 S.W.2d 166, 174(13, 14) (Mo.1968). In the case of an amended petition, a party is entitled to make response within the prescription of Rule 55.33(a) unless the court otherwise orders. The questuon here is whether defendant Boring's was entitled as a matter of right to make an answer on the day of trial which for the first time raised the defense of accord and satisfaction. That rule no doubt sanctions response by a defendant to any new matter brought into the litigation by an amendment by the plaintiff. Kroh Brothers Dev. Co. v. State Line Eighty-Nine, Inc., 506 S.W.2d 4, 13(15) (Mo.App.1974). It is clear, however, that where in the imminence of trial an answer is amended to set up a new defense on facts known before, it is within the discretion of the court to strike the defense. Boling v. State Farm Mutual Automobile Ins. Co., 466 S.W.2d 696, 699(4--6) (Mo.1971).

A case closely analogous to the positions of the parties here is Kroh, supra, where the plaintiff amended the petition by striking all reference to an attorney fee. The petition was otherwise unchanged. That same day, the court entered summary judgment for the plaintiff. The defendants contended that the judgment was improperly entered since under (then) Rule 55.53 they had ten days to plead to the amended petition. The court noted that neither defendant during the months of the pendency of the litigation had sought leave to amend the answer and since the amendment introduced no new issue, an answer was not required. See, also, Trotter v. Carter, 353 Mo. 708, 183 S.W.2d 898, 901(1, 2) (1944). The opinion concluded (l.c. 14):

The court below had the right to assume that (defendants) had asserted all of their defenses to Kroh's claim in their answers as required of them under (then) Rule 55.09; Rule 55.10 . . .. This is particularly true since no request had been made for almost four months to file . . . answers.

The circumstances here are comparable. The negotiations for settlement took place in April of 1972, but the defendant did not attempt to raise the issue until November 12, 1973, although the rights in the matter were known or discoverable by the defendant during those months. The amended petition did not in any way change the causes of action pleaded in Counts I and II (malicious prosecution and loss of consortium), but only deleted Count III which pleaded a separate recovery against the constable.

It was a proper exercise of discretion for the trial court to strike the defense of accord and satisfaction and to deny the dismissal motion under these circumstances. It is not necessary to examine the additional ground for decision--that the defendant had abandoned the defense by subsequent

Page 892

conduct in the litigation inconsistent with an intention to rely on the compromise settlement agreement--but only note that the circumstances before the court allowed a plausible application of that principle. See, 15A C.J.S. Compromise & Settlement § 29; Thompson v. Municipal Bond Co., 23 Cal.App.2d 402, 73 P.2d 274, 278(5) (1937).

The malicious prosecution action against Boring's culminates a series of events which began in June of 1969 when the plaintiffs Young purchased a range, refrigerator and television with stand from the defendant. The purchase was financed through the General Electric Credit Corporation (GECC). Two years later, an investigation revealed an internal scheme at Boring's had resulted in numerous fraudulent transactions. After consultation with its records, Boring's officials concluded that the Youngs had received their appliances as part of the fraud, and initiated a replevin action to repossess the merchandise.

The action to replevin the appliances from the Youngs was initiated on December 13, 1971, on behalf on Boring's by the statement and affidavit of office manager Richardson which alleged the wrongful detention of the property by the Youngs and resultant damage, and was assigned to Constable Tince Walker for service and certification of return. Three days later, the constable in the company of Richardson, two other Boring's employees and a police officer, undertook to serve the writ upon the Youngs at their home. The sound of the doorbell roused Ms. Young who, with her husband, was abed; she was confronted with the constable who announced he had a summons to serve on them. She awakened her husband and the constable displayed the writ and his badge to them, and as he pulled back his coat, a weapon was apparent.

Mr. Young invited the constable into his home and all five entered the living room. The constable them advised the Youngs of their purpose to retake the merchandise for Boring's, but Mr. Young protested that he owed no money to Boring's, the Boring's had no right to the property, and that they were making a mistake. Although the Youngs resisted his authority to serve them and seize their property, the constable searched the home for appliances with the serial numbers described in the replevin writ. Ms. Young testified that she offered to show the constable the GECC payment book as proof of ownership, Mr. Young told them he had signed a GECC note for the payment of the merchandise, but the constable refused to consider them. Mr. Young ordered the men out of the house but the police officer threatened him with arrest unless he stepped aside. With this, the Youngs finally acceded to the search and service. Young then attempted to call Boring's but the telephone was busy, so he dressed and...

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