State Ex Rel. Normandy Orthopedics, Inc. v. Crandall

581 S.W.2d 829, 1979 Mo. LEXIS 355

• Court: Supreme Court of Missouri
• Decided: May 17, 1979
• Docket: 60678
• Status: Published

Opinions

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 tort-feasors 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 LaMan-tia, sustained a fractured left femur. Rela-tors, 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 intrame-dullary 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. Re-lators 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. Re-lators 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 Taormi-na 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 tort-feasor 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 “[defendants and those who might be liable on their behalf,” purporting to cover “the cause of action or claim of the [pjlaintiff 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 ease 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 necessarily bar subsequent suits against an unspecified third party.³

A leading case in this area is Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944), wherein plaintiff released the original tortfeasor as part of a post-trial settlement and then commenced his malpractice action against the attending physician, who raised in defense the settlement of the original action. The California court ruled that no presumption of full satisfaction would be indulged merely because the plaintiff settled with the original tortfeasor who was exposed to liability for the alleged malpractice as well as the original injuries. It further ruled that the question of full satisfaction was one of fact for the jury’s determination.

In Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556 (1962), the New York court also rejected a presumption of full satisfaction from the release of the original tortfeasor, stating, 236 N.Y. S.2d at 958, 187 N.E.2d at 559, “Irrebuttable presumptions have their place in the law but only where public policy demands that inquiry cease. Where the cause of action is single and the liability of one wrongdoer is identical with that of the other, there may be warrant for erecting such a barrier to suit after settlement. However, where, as here, neither of these elements is present, there is no basis or justification for preventing the plaintiff, by an artificial rule of law, from recovering the full compensation to which she would otherwise be entitled for her injuries.”

The Iowa Supreme Court in Smith v. Conn, 163 N.W.2d 407 (1968), considered a release purporting to release the named tortfeasor, “and all other persons, firms and corporations, from any and all liability whatsoever,” arising from an accident on the second parties’ property, and held that whether the release was given in consideration of full satisfaction of the injuries suffered from the alleged malpractice of a doctor was a question for the trier of fact. The court referenced ten other jurisdictions in which a similar rule had been adopted.

Kansas joined the trend in Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 510 P.2d 145 (1973). The release there at issue ostensibly discharged the named second party “and all other persons, firms or corporations liable or who might be claimed to be liable” for injuries consequent to an automobile accident. The court decided that its precedents had “erroneously treated the parties as joint tort-feasors whose separate independent acts were improperly considered concurrent in time and effect,” and overruled them in favor of the view that satisfaction is a question of fact. 510 P.2d at 149.

We need not further catalog the cases in which this result obtains;⁴ the reasoning is clear. As with any other contract, the lodestar of construction should be “that the intention of the parties shall govern,” Williams v. Riley, 243 S.W.2d 122 (Mo. App.1951), and as to releases in particular, “[A]ny question regarding the scope and extent of a release is to be determined according to what may fairly be said to have been within the contemplation of the parties at the time the release was given, which, in turn, is to be resolved in the light of all the surrounding facts and circumstances under which the parties acted.” Id. . We do no more than put into practice this fundamental principle when we remove whatever legal presumption of full satisfaction may be found in our prior cases interpreting language similar to that in the release before us.

Turning now to the question of placing the burden of showing the parties’ intentions, we start from the principle that in Missouri, accord and satisfaction, release, prior full satisfaction and the like are affirmative defenses to be proved by defendant. Jenkins v. Simmons, 472 S.W.2d 417, 420 (Mo.1971). This burden of persuasion should not shift merely because defendant offered an instrument of release of the sort appearing here and that burden runs to the question of “full satisfaction” and other elements of the defense. In reaching this decision we are persuaded by the value of the Kansas Supreme Court’s holding in Fieser, 510 P.2d at 151: “When a general release discloses on its face that it has been given to named releasees who denied liability but made payment by way of compromise and settlement, then and in that event other alleged wrongdoers who were not parties to the release and made no payment toward satisfaction can fairly be called upon to show that either the release which they rely on was intended to discharge them or that the releasor has received full compensation.” (Emphasis ours.)

Finally, relators argue that parol evidence should not be permitted to establish the intent of the parties or to construe the language of the agreement because such evidence would vary or alter the terms of the instrument. We do not accept that Taormina’s affidavits will “alter and vary” the release. Relators are nowhere listed by name in its provisions and it is they who seek inclusion within its terms on the basis of their interpretation of its language. Plaintiff vigorously advances a different interpretation of that language and each side urges a resolution of the inherent ambiguities in a manner favorable to his position. We have hereinbefore determined to dispel the legal presumptions previously indulged in the law as to language of the sort at issue here, and parol evidence could well be of value in resolving the issue. The contention is denied.

The preliminary writ of prohibition is quashed.

MORGAN, C. J., DONNELLY, J., and SIMEONE, Special Judge, concur. FINCH, Senior Judge, dissents in separate dissenting opinion filed. BARDGETT and SEILER, JJ., dissent and concur in separate dissenting opinion of FINCH, Senior Judge. WELLIVER, J., not participating because not a member of the Court when cause was submitted.

1 . In 1915, the General Assembly modified the common law to allow the release of one joint tortfeasor without, as a matter of law, releasing the other. Laws 1915, p. 268 (now § 537.060, RSMo 1969). The statute has been narrowly construed to require that the release provide “specific and clear limitation of the intended scope of the settlement where such consideration is described as partial, rights reserved as to remaining tortfeasors, or other appropriate language,” Liberty v. J. A. Tobin Construction Co., Inc., 512 S.W.2d 886, 890 (Mo.App.1974), in order that it not be deemed a bar to claims against remaining joint tortfeasors. However, our disposition of this case is not dependent on interpretation or application of § 537.060 because LaMantia and the physicians were not true joint tortfeasors. Their acts were independent and successive, not joint and concurrent. As this Court stated in Staehlin v. Hochdoerfer, 235 S.W. 1060, 1062 (Mo.1921), referring to the original tortfeasor and the subsequently negligent physician,

[Tjhey were not joint tort-feasors; they were acting independently of each other; their several wrongs were committed at different times; and the tort of each, being several when committed did not become joint [merely] because its consequences united with the consequences of the other.

Although this Court in Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 917 (banc 1950), labeled the original tortfeasor and the physician as “joint tortfeasors with respect to the aggravation,” that language did not change the essential holding or principle announced in Staehlin. The Schumacher court continued, “[T]he two injuries are not so legally connected that the satisfaction of, say, the original injury necessarily bars the suit for malpractice against the physician.”

On the other hand, the 1915 abrogation of the common law rule relative to joint tortfeasors “was not designed to affect, and does not affect, the principle that there can be but one satisfaction for the same wrong.” Abbott v. City of Senath, 243 S.W. 641, 642 (Mo.1922).

2 . Staehlin v. Hochdoerfer did not depart from this pattern. The Staehlin court remarked that the intent of the parties in regard to the release “must be gathered from the written releases themselves, considered in connection with the suits they were designed to dispense with,” 235 S.W. at 1062, but here too we do not read that statement as a rule of law, but more in the nature of a comment on evidentiary sources available for the decisional process.

3 . This does not affect the extent of recoverable damages, nor alter the proposition that there may be only one full satisfaction for injuries. As this Court said in Vinson v. East Texas Motor Freight Lines, 280 S.W.2d 124, 133 (Mo. 1955): “When an injured party compromises or settles with one of concurrent or joint tort-fea-sors for a portion of the injuries, the injured person retains his claim . . . against the other tort-feasor and recovery may be had for the balance of the damages for the injury (unless the damage caused by each of concurrent or joint tort-feasors is clearly separable, permitting the definite assignment of responsibility to each).”

4 . See Annot., 39 A.L.R.2d 260 (1971) and 1978 Supp. at 9.