Max v. Spaeth

On Motion for Rehearing or to Transfer to Court en Banc.

PER CURIAM.

Plaintiff contends that the language of the stipulation of dismissal with the provision for dismissal with prejudice should be construed as a settlement of Wyatt’s claim against her only and not a settlement of her claim against him. (Motion shows a payment was made to Wyatt in compromise of his claim.) Plaintiff cites Rudloff v. Johnson, 8 Cir., 267 F.2d 708, in which a plaintiff’s claim against the defendant therein for injuries sustained in a collision of automobiles was compromised by an attorney representing defendant’s insurance carrier after defendant had filed a counterclaim. However, defendant’s counterclaim had been filed by other attorneys and they did not sign the stipulation for settlement. The insurance company attorney who did sign it did not represent defendant on his counterclaim; and it also appeared that neither defendant nor the attorneys representing him on his counterclaim had been consulted with respect to the settlement of' plaintiff’s claim or the dismissal of his petition.

The situation in this case is more like that in England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, 368. Plaintiff therein filed suit for personal injuries sustained in a collision of motor vehicles. Defendant filed a counterclaim for damages to its truck. Defendant settled with plaintiff paying her $500, the stipulation of settlement stating “it is stipulated and agreed between the parties that plaintiff’s petition, cause of action or claim against the defendants shall be and is hereby dismissed, with prejudice, and at the cost of the defendants.” The court, in holding defendant could not proceed on its counterclaim, said: “It must be remembered that there was only one accident — one collision. All the accusations, charges and counterclaims grew out of it. Plaintiff said she was blameless and defendants were wholly responsible. Defendants denied any negligence on their part and charged plaintiff with the entire responsibility for the collision and resultant damages. Under these contentions, only one side could be liable and only one side could recover. Defendant, Yellow Transit Company, by its attorney, offered to pay and did pay $500.00 to plaintiff in settlement of her claim for damages and agreed that defendants pay the costs.” The court held that circumstances of the settlement “were all calculated to and did lead the plaintiff to believe that the entire controversy was being settled. She acted, in dismissing her case, receiving the payment and signing the release, in reliance upon that belief, and reasonably so. Under these circumstances the Yellow Transit Company is now estop-ped to proceed further with their counterclaim.” It should be noted that the language of the stipulation of dismissal in this case (“all matters and things in controversy in the above entitled cause having been adjusted, compromised and finally settled”) is much broader than that used in *5the England case. Furthermore, the case was dismissed “with prejudice to any other action on account of the matters and thing's contained and set forth in plaintiff’s petition.” Plaintiff also cites Clifton v. Caraker, Mo.App., 50 S.W.2d 758, but it involved the release of one of two joint tort fea-sors which is an entirely different situation from liability based on respondeat superior.

Plaintiff’s motion for rehearing or to transfer to the Court en Banc is overruled.