explaining that release of employee from personal liability also releases employer and that dismissal with prejudice constitutes adjudication on the merits
How later courts described this case
- explaining that release of employee from personal liability also releases employer and that dismissal with prejudice constitutes adjudication on the merits
- plaintiff's voluntary dismissal of servant with prejudice meant the master could not be held liable
- “[A] judgment in favor of either principal or agent in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against a subsequent right of action against the other. By analogy, it is held that the release of an employee from liability for injuries inflicted while acting for the employer operates as a release of the employer.”
- “[A] verdict in favor of the servant and holding the master guilty of negligence relieves not only the servant but the master from liability.”
Written by the judges who cited it.
The opinion
MORGAN, J.
(dissenting). — I cannot agree with the majority members of the court. Their decision is based upon the premise that the dismissal of Mundee amounted to an adjudication that he was not guilty of
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any negligence. A reading of the record discloses that the dismissal was conditional. There appears to have been no intent upon the part of the attorneys for the plaintiff to dismiss with prejudice. The excerpt from the transcript of the evidence quoted in the opinion discloses that counsel for defendant simply moved for a dismissal. Under the rule pertaining to dismissal, sec. 21-915, sub. (2), Arizona Code Annotated 1939, a dismissal can be had On the plaintiff’s instance only upon the order of the court, and upon such terms and. conditions as the court deems proper. The rule specifically states, “Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.”
The minute entry does show that the dismissal was with prejudice. It seems obvious, however, that both counsel for the plaintiff and the court deemed the dismissal as a conditional one, and it was never intended that the dismissal should operate as an adjudication that Mundee was not guilty of negligence. The action of the trial judge indicates that he was under the impression that the right was reserved to continue the cause of action against the master De-Graff. Had this not been so, immediately upon the dismissal of Mundee with prejudice, the court would also have dismissed against the master. The jurors were instructed that there could he no recovery unless they found negligence on the part of Mundee.
It seems to me that this is a case where the court should make use of the powers given to it under Sec. 21-1832, Arizona Code Annotated 1939. Under that section the court has the right to render such judgment, or order as the court below should have rendered. The defendant for reversal depends entirely on the judgment of the court dismissing Mundee with prejudice. The majority opinion is based upon the same hypothesis. In view of the fact that the defendant relies solely on the dismissal judgment, and the matter
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is directly before us, we have the right, under the provisions of the statute referred to, 21-1832,
supra,
to render such judgment or order as the court below should have rendered. In other words, to limit the effect of the dismissal in accordance with the intention of the plaintiff and the court. This court has the right to require that the proper judgment of dismissal be entered, even though the plaintiff-appellee has not asked for that relief. 27 C. J. S., Dismissal and Nonsuit, p. 256, § 73, “Dismissal and Nonsuit”:
“If the dismissal is absolute where it should be without prejudice, or if it is without prejudice when it should be on the merits, the judgment may be corrected on appeal, even though complainant does not urge the error. ...”
See in support of the foregoing,
Harrison
v.
Farmers’ Loan & Trust Co.,
5 Cir., 94 Fed. 728 ;
Gregory
v.
Boston Safe-Deposit & Trust Co.,
144 U. S. 665 , 12 Sup. Ct. 783, 36 L. Ed. 585 ;
Lacassagne
v.
Chapuis,
144 U. S. 119 , 12 Sup. Ct. 659, 36 L. Ed. 368 ;
Levandowski
v.
Althouse,
136 Mich. 631 , 99 N. W. 786 .
We must assume from the verdict that Mundee was guilty of negligence. The trial court was satisfied with the verdict. Motion for new trial was denied. It seems apparent that if the trial court had not been impressed with the belief that the dismissal was conditional, he would have set aside the judgment under the law. A judgment based upon the verdict of a jury, in a case which has fairly been submitted, should not be lightly set aside, and no technicalities should be allowed to operate to defeat it.
The judgment of dismissal should be corrected in accordance with these views, the verdict of the jury upheld, and the judgment affirmed.