*1 County; District No. 1 of Dallas to School
(2) preliminary rule as to Broad- our Salina absolute; (3) Inc.,
casting, should be made Independent preliminary rule as to
our absolute; (4) pre-
should be made our
liminary as to R.R. Willard should be taken as to
made absolute. No action is Lemons. Wayne
Mr.
MORGAN, J., BARDGETT, C. DONNEL- FINCH,
LY, RENDLEN, SEILER, JJ., and Judge,
Senior concur.
WELLIVER, J., participating be- when a member of the court
cause not
cause was submitted. rel., ex
STATE of Missouri NORMANDY
ORTHOPEDICS, INC., and William F.
Luebbert, D.O., Button, and William E.
D.O., Relators, CRANDALL, Jr., Judge
William H. Court, Louis, County
Circuit of St. Divi One, Judges
sion and His Successors as Division, Respondent.
of Said
No. 60678. Missouri,
Supreme
En Banc.
May 1979.
Rehearing Denied June *2 1972, March brought
On
alleging that
against
because
suit
LaMantia
negligence, “plaintiff sus-
of defendant’s
left fe-
tained a fracture
...
mur;
obliged
.
.
was
to submit
.
[and]
open
an
of said fracture
an
reduction
was in-
procedure whereby a nail
operative
femur,
shaft of the
.
serted down the
perma-
he has
caused
become
been
[and]
nently lame,
ability
his
to ambu-
and that
walk,
late,
work and lаbor in
future
impaired.”
peti-
seriously
have been
neg-
reference to
express
tion made no
conduct
or otherwise actionable
ligence
22,1972,
August
that suit
relators here. On
$9,000,
Receiving
was settled.
his
action
executed
written release
stipu-
prejudice under a
was dismissed with
parties in
providing,
lation
“Come now the
hereby ex-
cause and
the above entitled
stipulate
agree
that the same
pressly
compro-
satisfactorily
fully
has been
settled,
dismissed,
hereby
mised
the cost of the defend-
prejudice,
at
discussed, the
As
terms
ant.”
hereinafter
Pitzer,
Moser,
Keaney,
Michael J.
R. E.
stipulation may
perti-
petition
Marsalek,
Jaeckel,
Cleary,
Kea-
Carpenter,
to the issue of
proceedings
nent in further
Louis,
Brown,
relators-appel-
for
ney &
St.
intent.
lants.
25, 1972, Taormina filed suit
On October
Kelleher,
Gerhard,
George R.
William
St.'
during treat-
alleging that
against relators
Louis, for respondents.
they
inserted an intrame-
negligently
ment
length.
dullary
improper
nail
Neither
RENDLEN, Judge.
pleading filed
original, nor an amended
prohibition.
This
Missouri
February,
allegations
contained
(now Eastern)
Appеals,
Dis-
Louis
St.
between
negligent
rendered
treatment
trict, transferred the cause under Rule 83.02
19, 1972,the
Taormina filed his
March
date
might
opinion,
after
that we
reexamine the
LaMantia,
petition
and Oc-
original
following question:
what conditions
Under
petition
25,1972,
filing
his
tober
the date
injured
general release
party’s
does an
alleging
malpractice.
relators’
operate
bar
original
tortfeasor
bar,
Relators,
raising the release as
against subsequent
tort-
party’s action
treat-
to dismiss and
sum-
alleged
feasors
filed their motions
injuries?
respond-
ment
mary judgment to which Taormina
accompanied by a letter
ed with affidavits
dispute.
The facts
not in
A one-car
are
executing
stating that when
he
29, 1970, in
accident occurred on October
only LaMantia and
had intended to release
Taormina,
guest
riding
Salvatore
$9,000received
that the
the insurer and
driven
James LaMan-
the automobile
damages. Re-
of his
in full
tia,
Rela-
left femur.
sustained a fractured
con-
these affidavits
lators moved to strike
tors,
osteopathic physicians organized
the terms of
tending
sought
professional corporation, treated Taormina
evidence
his
the release in violation
corporations
persons, firms and/or
rule,
although
was not
that motion
whomsoever,
arising from or
ruled,
any way
court’s order of
specifically
the trial
losses
any and
denying relators’ motions to
out of
September
hereaf-
effec-
now known
summary judgment
dismiss and for
”
.
.
develop
Re-
ter
of the motion to strike.
tively disposed
and the
petitioned
prohibition
lators
words, “This
contained
The release also
*3
writ,
though issuing its
Appeals,
Court
is a Releаse in Full.”
stated,
judgment
“We would affirm the
instrument
that an
The contention
but,
law as
in view of the state of the
constitutes a bar
language
containing such
this case is
Rogers
Piper,
reflected in
v.
usually said to rest
subsequent
to
actions
Supreme
ordered transferred to the
may recover
principle
plaintiff
that a
on the
purpose of reexam-
under Rule 83.02 for the
Construing
only
injuries.1
re
once for his
existing
We treat the cause
ining the
law.”
a release in
provisions such as “This is
lease
originally in and the
having
as
been filed
full,”
comprehend
purporting
and those
by this court.
preliminary writ issued
State
actions,”
all
“any
and
and
“any and all
Edwards,
405
ex rel. J. D.
v.
574 S.W.2d
S.
to ac
liability now accrued or hereafter
(Mo.
1978).
banc
incident, Missouri cases
crue” from one
release executed
Taormi-
full sat
language evidences
have held such
form
appears
typical printed
na
to be a
See,
g.,
claims.
e.
plaintiff’s
isfaction of
reading
part:
Senath,
hereafter as cases These apparent.” plaintiff or now The release developed fact that from at bar the stated, agreement is in to partial further “that this offered evidence compromise injuries scope of all claims of and settlement his intended the every McQueen, on none are over Relying Accordingly, kind.” the release. they may be except was to con- ruled to the extent nothing court noted that shown with,” designed dispense depart 235 from suits v. did not Staehlin Hochdoerfer do not read that pattern. S.W. at but here too we The court remarked Staehlin law, regard rule of but more in release statement as a the intent of the to the evidentiary gathered of a comment on sources the written rеleases nature available for “must be from themselves, process. the decisional considered in connection
«33
Supreme Court in
v.
The Iowa
Smith
contrary
present holding
to our
that a re-
(1968),considered
Conn,
N.W.2d 407
comprehend any
all
163
purporting
lease
the named
release
purporting
incident,
arising
particular
from a
claims
persons, firms and
tortfeasor,
other
“and all
against unspecified
including claims
stran-
liability
corporations, from
gers
agreement,
necessarily
to the
does not
whatsoever,” arising from an aсcident
unspecified
suits
subsequent
against
bar
property, and held
parties’
the second
party.3
third
given
in considera-
whether the release
area is
leading
A
case in this
Ash
injuries suf-
tion of full satisfaction
Mortensen,
full satisfaction be found prohibition is preliminary writ of interpreting to that cases similar quashed. in the release before us. plac Turning question now to the J., DONNELLY, J., MORGAN, C. ing showing parties’ the burden of in SIMEONE, Special Judge, concur. tentions, principle we start that in from the FINCH, Judge, sepa- dissents Senior satisfaction, release, Missouri, accord and dissenting opinion filed. rate prior full the like are af satisfaction and proved firmative defenses to be defend JJ., SEILER, dissent BARDGETT 417, Simmons, ant. Jenkins dissenting opinion of separate and concur in (Mo.1971). persuasion This burden FINCH, Judge. Senior not shift defendant merely should because J., WELLIVER, be- participating release of the sort offered instrument of when cause not a member of the Court runs to the appearing here and that burden cause was submitted. and other question of “full satisfaction” reaching elements defense. FINCH, dissenting. Judge, Senior persuaded by decision we are the value respectfully I dissent. holding Supreme the Kansas Court’s Fieser, at 19, 510 P.2d 151: “When on March Taormina sued LaMantia release discloses on its face that it has been 1972, have resulted alleged liabili given to named releasees who denied in an negligence LaMantia acci- from the compro ty payment by way but made dent which occurred October settlement, mise and and in that event then August That case settled alleged wrongdoers who were not $9,000.00 and the case was dismissed payment parties to the release аnd made stipulation pursuant to a prejudice fairly toward satisfaction can be called “fully had been that the case recited *6 which upon to show that either the release and set- satisfactorily compromised and discharge rely on was to they intended executed a release tled.” also that the has received full them or releasor stated, Full.” It “This is a Release in which ours.) compensation.” (Emphasis it LaMantia fully that relieved recited any all now accrued “from and ev Finally, argue that relators any and to accrue account of hereafter permitted idence should not be to establish which First all claims or causes of action the construe the the intent of or to * * * has or (Taormina) now Party the language agreement because such Party against have hereafter Second terms evidence would or alter the * * * way arising (LaMantia) any in accept that the instrument. We do any injuries, losses out of all from or and vary” “alter and Taormina’s affidavits will may here- now that damages and known or by the release. are nowhеre listed Relators * * * develop after provisions they name in its and it is neg- the basis well whose seek inclusion within its terms on It is established that one injuries can be interpretation language. ligence its causes to another their by mal- in vigorously Plaintiff advances a different liable for caused held the medical each side terpretation language practice of that in connection rel. ambigui ex urges a resolution of the inherent of said State treatment Stubbs, [2, position. in manner to his ties favorable Blond v. dispel (Mo.App.1972). petition the We have hereinbefore to determined 4] indulged against he took legal presumptions previously Taormina filed LaMantia injuries to sort at of both he received language cognizance in the law as be reservation or limitation must the treatment which he received “Such therefor, opinion alleging, principal unmistakably as the clearly and expressed neg- that recognizes, because LaMantia’s ‡ ‡ n JJ * * “plaintiff sustained a fracture ligence applying interpreting Instead of so * * * femur; of the left was obli- [and] for dismissal stipulation release gated open submit said to to an reduction of “that a case, opinion holds principal whereby operative procedure fracture in an comprehend any and purporting release a nail was inserted down shaft * * * incident, particular arising all claims from femur he has caused been [and] unspecified stran- including against claims lame, permanently to become and that his necessarily agreement, does gers to the ambulate, walk, ability to work and labor in against unspecified subsequent bаr suits seriously impaired.” the future been words, party.” it holds sought recovery for which he third In other condition injuries plus result persons was the of the actual necessarily a release bars those treatment therefor. specifically named in the release. Under unambiguous principal opinion clear and stipulation preju- for dismissal with language purports in the release which foregoing petition plus dice of the the clear unambiguous persons as a class of the release release unnamed released signed LaMantia for necessarily be effective to bar sub- will not liability growing out of the accident per- those unnamed sequent claims injured, including which Taormina was lia- specifi- who are of the class sons members bility of any aggravation LaMantia for Instead, the release. cally mentioned in injuries arising those out of depend upon will whether are released medical, surgical hospital services subsequent determination as factual rendered in the treatment thereof. That executing the release in- whether the one true, follоws, being submit, it I unnamed thereby to release these tended discharges release also herein. relators will on those persons and the burden unambiguous The clear and language of seeking to be released show that so release states. In addition to executing the one was the intention of goes LaMantia his heirs it on to release. persons, “a11 other corpora- firms and/or any way tions arising whomsoever ruling, principal opinion rec- This as the out and all losses ognizes, contrary to numerous earlier de- damages nоw known or that hereafter state, in this some which it states cisions develop from an auto accident at 1-70 and contrary longer followed. It are no party St. Charles Rock Road wherein first plain well to the established (Taormina) passenger was a an auto driv- language in a shall unambiguous contract (LaMantia) en second party occurring on *7 subject it is given effect that not be day October, or about 29th 1970.” parol evidence. variance on the basis of (emphasis supplied). limiting It no contains not principal opiniоn states that it does qualifying language In any kind. by Taor- accept the idea the affidavits that Liberty Compa- v. J. A. Tobin Construction vary will alter attorney mina and his Inc., ny, (Mo.App.1974), However, does not of the release. it terms court, speaking a settlement wherein a any way language that the demonstrate is not intended to release others and/or releasing persons, “all firms other named, specifically than those said at 890: as to all corporations whomsoever” accomplished only by “This result ambiguous. It does damages losses аnd specific and clear limitation the intend- mean suggest might what those words scope ed of the settlement such where they might refer if do not or to whom partial, consideration is described as they say. speaks of precisely mean what It rights remaining reserved as to tort- true, It is feasors, ambiguities but lists none. appropriate language. other states,
opinion the lodestar of construe- that gave general release which recited that he the intention of is to determine tion others for govern, but it is then parties which shall he rеleased LaMantia a con- language when equally true that had or thereafter liability which claims and the inten- unambiguous tract is clear his arising out of any way might occur from is to be determined tion of damages. If Taormina injuries, losses evidence is not language used and to limit their attorney had wanted and his language. admissable to against LaMantia to claims settlement change by made reserve his claim The effect of wanted to uncertain- opinion doctors, specifi- is to substitute principal they could have against the рlain unambig- meaning as to the ty and in the in the release cally so stated require language and to uous contractual They not do did stipulation for dismissal. to establish the mean- litigation additional 537.060, no reference to § that. There was existing previously ing Under the thereof. permits. reservations it and the RSMo stipulation specifies when a release or Instead, unqualified gen- gave released all others are that LaMantia and all others. Its to Taormina and eral release arising any way any and all from unambiguous. language is cleаr and injuries, losses and from or out of justify a seeks to opinion principal accident in connection with an automobile from that this case different result excep- occurring specified date and cases on the Missouri reached in earlier recited, or limitations are tions or exclusions filed by affidavits basis that fraud or over- is no claim of and there evidence to they offered attorney and his what it instrument means reaching, re- intend to that Taormina did show release. operates as a says and it valid dis- is not a doctors. That lease the principal in the the rule announced Under nothmg to demonstrate There is tinction. the effect uncertainty there is as to opinion stipu- release and be a full purports of an instrument ambiguous and were lation for dismissal persons named general release of certain affidavits as that evidence such corpo- persons, firms and/or plus “all vary the terms alter or inadmissible to effec- the instrument rations.” Whether unambiguous can as- instruments. group the latter tively releases judicial hear- after a seсond only certained rule is sound and existing presently Our of the one the intention ing to determine certainty and provides both adequate. It hearing release. executing the instance, it states If, flexibility. as in group falling within persons those persons named specially that it is corpora- and/or persons, “all other firms liability in any and all and all others that the showing tions” have the burden partic- of a from or out any way arising out to release intended giving one the release accident, what it it means ular automobile by class as well designаted persons those by class as specified those says and releases specifically those named. hand, if it is the other by name. On well as fraud, in this case of There is no claim of those portion to release desired overreaching of Taor- misrepresentation or exist, limi- whom a claim by counsel represented He was mina. spe- made may be or reservation tation in set- represented him suit and then filed reciting. cifically so attorney He and his of the case. tlement and when not be static The law should treatment received cognizant *8 existing rule of law changing reason including placement for his demonstrated, should a court clearly previously As fractured femur. nail in the not blind- changes and should needed make plain- demonstrated, allegations of How- decisis. rule of stare ly follow the When the case so show. petition tiff’s ever, not been demonstrat- such a need had settled, had been all the treatment after case. The in this present is not ed and concluded, stipulated that on deci- and relies opinion cites principal prejudice case should be dismissed adopted states which have sions in other principal stated in the similar to that
rule have so is true that some states
opinion. It many states it also is true that
held but rule, previously in effect
have retained state, unambiguous that a
in this has given
release such tortfeasors
the effect liability for might
who have or injuries received.
damages resulting from (1971). my
Annot., 39 A.L.R.3d sound and
judgment, present our .is
should be retained.
STATE ex rel. UNITED STATES &
FIDELITY GUARANTY
CO., Relator, MEHAN, Judge, of the
Hon. Richard J. City, Louis
Circuit Court St.
Missouri, Respondent.
No. 39736. Appeals,
Missouri District,
Eastern
Division One.
Feb.