Holoman ex rel. Holoman v. Harris

585 S.W.2d 530, 1979 Mo. App. LEXIS 2433
CourtMissouri Court of Appeals
DecidedJuly 31, 1979
DocketNo. 30061
StatusPublished

This text of 585 S.W.2d 530 (Holoman ex rel. Holoman v. Harris) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holoman ex rel. Holoman v. Harris, 585 S.W.2d 530, 1979 Mo. App. LEXIS 2433 (Mo. Ct. App. 1979).

Opinion

MANFORD, Judge.

Appeal from granting of motion for summary judgment. Trial court designated its judgment as a final and appealable order pursuant to Rule 81.06. Review is made herein pursuant to Rule 73.01.

[532]*532The facts of this case are quite simple. Leroy Holoman, while riding his bicycle, was involved in a collision with two motor vehicles. At the time of the collision, he was 16 years of age. The collision occurred in May of 1974. On February 16, 1976, Leroy Holoman and his father executed a covenant not to sue to the favor of Marvin Harris, receiving $7,000.00 in exchange therefor. Leroy Holoman was 18 years of age at the time of the execution of the covenant not to sue. In July, 1976, this present action was filed against Veronica and Luke Long. Subsequent to the initial filing, the pleadings were amended, joining as defendants James Parker and Marvin Harris.

Separate defendant Marvin Harris pled the covenant not to sue as part of his answer. Defendant Marvin Harris then moved for summary judgment and the trial court sustained said motion, concluding the covenant not to sue was fully effective and hence a bar to recovery by Leroy Holoman as against defendant Marvin Harris.

On appeal, Leroy Holoman contends the trial court erred in holding the covenant not to sue as valid, because of the age of Leroy Holoman. His allegations contend the settlement supported by the covenant was ineffective because it lacked approval as required by §§ 475.135, 475.010 and 507.184, RSMo 19781; that the release of tort claims is not within the meaning and intent of the Legislature in that § 431.055 did not impliedly repeal § 475.135, and finding that if § 431.055 is to be construed broadly as covering contractual transactions, that such construction of § 431.055 is not applicable to the facts herein because § 475.135 is a special law covering settlements and is an exception to the general law.

Although presented separately, those points raised by appellant herein are taken up and disposed of collectively because each bears the same relationship to certain and specific questions.

The questions provoked by this appeal, and in turn related by appellant’s points of error, are as follows:

(a) Is a covenant not to sue a contract?
(b) Is a covenant not to sue a contract within the meaning of § 431.055?
(c) Is § 475.135 a special law not within the meaning of § 431.055 as contended herein?
(d) What was the intent of the legislature relative to the legal capacity of 18 year olds and their execution of covenants not to sue?
(e) Does enactment of § 431.055, by virtue of its being enacted subsequent to § 475.135, supercede § 475.135, or is there an existing conflict between these statutory sections which necessitates judicial clarification?

The first of these questions can be disposed of by a brief reference to 4 COR-BIN, CONTRACTS § 932, p. 745 (1951), wherein the following is found:

“. . .a covenant not to sue one joint obligor is merely a valid contract for breach of which an action for damages will lie.”

Following the determination of the status of a covenant not to sue being a contract, does it follow that such is a contract within § 431.055? § 431.055 reads as follows:

“431.055. PERSONS COMPETENT TO CONTRACT WHEN EIGHTEEN YEARS OF AGE. — The legal age at which a person becomes competent to contract in Missouri is eighteen years and any rule or provision of the common law to the contrary is hereby abrogated.”

The language contained within § 431.055 is unequivocal and it is concluded herein that such language contains the intent of the legislature to include covenants not to sue as a contract within the meaning of the term “contract” as expressed therein.2

[533]*533Proceeding a step further, even if such conclusion be reached relative to § 431.055, is § 475.135 a special law not within the meaning of § 431.055? § 475.135 states the following:

“475.135. CONTRACTS BIND ESTATE, WHEN. — No contract shall bind the estate of any minor, except as provided for in sections 507.182 and 507.184, RSMo, or incompetent unless the same is made by the guardian with the approval of the court or made by the ward with the consent of the guardian and approval of the court.”

This statute uses the term minor without specification to numerical age. This court is faced with the interrelation of §§ 431.055 and 475.135 where on the one hand, specific physical age serves the basis for a definitive legal age and on the other, the mere legal term minor is employed.

If it be concluded that § 475.135 is a special statute outside the purview of the general law, then greater weight by mere judicial inference is ascribed to the term “minor” and the effect would be to nullify the specific physical age set forth in § 431.-055. Such certainty was not the intent of the legislature. The better interpretation appears to be that minor, as used in § 475.135, be construed to mean persons who have not attained the age of 18 years.

For further support for such interpretation, consideration of § 507.115, RSMo 1978 should be undertaken. This section reads as follows:

“507.115. INFANT DEFINED FOR CIVIL SUIT PURPOSES. — As used in sections 507.110 to 507.220, the term ‘infant’ means any person who has not attained the age of eighteen years. All persons of the age of eighteen years or older, not otherwise disqualified, may commence, prosecute, or defend any action in his own name as the real party in interest.”

Further, § 507.184, enacted in 1959, again fails to supply any physical age to the term minor and, the better construction appears to be that the term minor as expressed in § 507.184, is that person who has not attained the age of 18 years. It must follow that §§ 475.135 and 507.184 fall within §§ 431.055 and 507.115 and are not special laws excluding the execution of a covenant not to sue by any legally competent person who has attained the age of 18 years.

Such discussion of legal age necessarily involves the determination of legislative intent.

Just prior to 1974, there existed a fervent national effort to lower the legal or lawful age.3 Our own state responded through action by the Missouri General Assembly. In 1974, the General Assembly passed SB-438, referred to as ACT 70, which can perhaps be best described as the “shotgun” approach to the affixing of the lawful age in Missouri at age 18. This act provided the following:

“ ‘SECTION 1. The age of majority in this state is eighteen years, and all persons having attained that age are entitled to all the privileges, rights and immunities, and subject to all the obligations, liabilities and responsibilities of adulthood and are not subject to any of the disabilities of infancy.
2. This act does not apply to any written instrument, contract, deed or trust indenture, conveyance, note or bank account made or executed before this Act becomes effective, nor shall it apply to or affect the rule of law known as the Rule Against Perpetuities or any conveyance made under the Missouri Uniform Gifts to Minors Act.
3.

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Related

State Ex Rel. McNary v. Stussie
518 S.W.2d 630 (Supreme Court of Missouri, 1974)
State ex rel. Maguire v. Draper
47 Mo. 29 (Supreme Court of Missouri, 1870)
State ex rel. Speck v. Geiger
65 Mo. 306 (Supreme Court of Missouri, 1877)
State ex rel. Attorney General v. Miller
100 Mo. 439 (Supreme Court of Missouri, 1890)

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Bluebook (online)
585 S.W.2d 530, 1979 Mo. App. LEXIS 2433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holoman-ex-rel-holoman-v-harris-moctapp-1979.