Obrázky stránek
PDF
ePub

A release is a relinquishment of a claim and is essentially a covenant which merely agrees not to enforce a claim against a particular party, but does not prohibit suit against the other; and if the instrument specifically sets out that it is not intended to affect any claim which the party executing the instrument may have against another party to the tort, the agreement will be construed as a covenant not to sue, and not as a release. The Thomas P. Beal (1924; D. C.) 298 Fed. 121.

On an oral compromise with several joint tort-feasors a reservation of the right to proceed against the other joint tort-feasors may be made orally. Scott v. State Fair Asso. (1918) 102 Kan. 653, 171 Pac. 634.

That the sum was received in partial satisfaction, only, has been held sufficient to show an intention not to release the other joint tort-feasors, and therefore not to bar an action against them. J. Rosenbaum Grain Co. v. Mitchell (1912) Tex. Civ. App. —, 142 S. W. 121. Thompson v. Nashville, C. & St. L. R. Co. (1909) 160 Ala. 590, 49 So. 340, holding, under a statute making a release operate according to the intention of the parties, that whether a release which acknowledges the receipt of a sum of money from one tort-feasor and releases him from all damage and responsibility for the accident, without mentioning the other tort-feasor, operates to release the other tort-feasor, presents to the jury the question whether such sum was received in full satisfaction of the injury; if it was not so received, it is only, pro tanto, a bar to an action against the other wrongdoers.

The fact that there has been only a partial satisfaction is emphasized in other cases, holding the other joint tort-feasors not released, and the intention of the parties not to release such other joint tort-feasors is minimized or not mentioned. Only by full satisfaction are the other joint tortfeasors released. Boyles v. Knight (1898) 123 Ala. 289, 26 So. 939; Louisville & E. Mail Co. v. Barnes (1904) 117 Ky. 860, 64 L.R.A. 574, 111 Am. St. Rep. 273, 79 S. W. 261; Covington v.

Westbay (1914) 156 Ky. 839, 162 S. W. 91; Fennell v. Fechter (1918) 181 Ky. 101, 203 S. W. 879 (rule recognized); Louisville Gas & E. Co. v. Beaucond (1920) 188 Ky. 725, 224 S. W. 179; Knapp v. Roche (1884) 94 N. Y. 329; Sloan v. Herrick (1877) 49 Vt. 327.

The court in Louisville & E. Mail Co. v. Barnes (1904) 117 Ky. 860, 64 L.R.A. 574, 111 Am. St. Rep. 273, 79 S. W. 261, states that, if the injured party had accepted the money "in satisfaction of his cause of action or claim for damages, then it would have operated as a release and a bar to any other proceeding against appellant on account thereof. But it is shown by the proof, without contradiction, that it was accepted as only part satisfaction, and a release of the Marsden Company, but not in satisfaction of his cause of action and claim for damages. ... The law ought not to be that a release of one tort-feasor, by his making a partial satisfaction for the wrong done, should operate as a release of the other wrongdoers."

In Bailey v. Delta Electric Light, Power, & Mfg. Co. (1905) 86 Miss. 634, 38 So. 354, a release given to one tort-feasor, upon receiving a partial satisfaction for the injury from him, is held not to release another tort-feasor. It is impossible to tell from the opinion whether the court treats the tort-feasors as joint tort-feasors, or not. It is stated that the declaration states a cause of concurrent negligence, but the legal principles which fix liability upon the two tort-feasors joined in the suit are essentially different; that one was liable by reason of an alleged failure to discharge the duty which the master owed to his servants in providing a safe place to work; while the other was liable, if at all, for the negligent acts of its employees; that the negligence of one was passive, and of the other active, though the negligence of both concurred in inflicting the injury; and that, under this state of facts, the partial satisfaction for the injuries received by the servant made by the master, not intended to be a settlement in full, and not received as, nor in fact being, full compensation, can

not inure to the other person whose concurrent negligence caused the injury complained of. However, in the later case of Waterman-Fouke Lumber Co. v. Miles (1924) 135 Miss. 146, 99 So. 759, the court expressly states the Bailey Case to have held that a release of one joint tort-feasor does not release others, unless the satisfaction received was intended to be, and was, accepted as full compensation; and it was held in the Miles Case that an agreement releasing and forever discharging one joint tort-feasor of and from all claims or demands, action, etc., from any matter, etc., prior to the date thereof and on account of personal injuries resulting from an accident was not a discharge of other tort-feasor, there being no attempt to acquit in consideration of full satisfaction for the injury.

It is held in Boyles v. Knight (1898) 123 Ala. 289, 26 So. 939, that the owner of cotton might maintain an action for its conversion against one guilty thereof, although he had accepted from a joint tort-feasor in the conversion a part of the damages he had sustained by reason of the conversion.

Parties who have committed a joint trespass upon land, cutting and carrying therefrom timber to the value of over $1,000 are not released by a settlement with one of their number upon payment of $200, to the injured person, under an agreement that for the payment of that amount the injured person agreed not to look to or prosecute the tort-feasor with whom the settlement was made, but not with any understanding that the said sum compensated or satisfied the injured person for the trespass. Ellis v. Esson (1880) 50 Wis. 138, 36 Am. Rep. 830, 6 N. W. 518. In reliance upon this case it was held in Pogel v. Meilke (1884) 60 Wis. 248, 18 N. W. 927, that an owner of land, who settled with one of two persons who went fishing upon his land, and who agreed to divide, and did actually divide, the fish which they caught, did not release the other, where there was no proof that the settlement was understood by the parties to be in satisfaction of the whole injury. The landowner in this case had

begun several actions against the parties who trespassed upon his land, apparently not knowing that there was any combination or concert of action between the persons so that he could hold them liable as joint wrongdoers. It is held in Fitzgerald v. Union Stock Yards Co. (1911) 89 Neb. 393, 33 L.R.A. (N.S.) 983, 131 N. W. 612, that a settlement with one joint tortfeasor, acknowledging "full payment, settlement, release, and satisfaction and discharge of all claims and demands of any nature whatsoever,

. against" the tort-feasor with whom the settlement was made, growing out of the injury in question, and reciting, further, "I do hereby release and forever discharge

[the tort-feasor with whom the settlement was made], its lessors, lessees, and controlled companies . . from all debts, suits, causes of action, claims and demands whatsoever," arising from the injuries in question, did not conclusively show that full compensation for the entire injury had been received, and therefore did not necessarily release the other tort-feasor.

In any event, recovery against the other tort-feasors is confined to the excess of the damages incurred, above the amount of the settlement. Storey v. Breedman (1916) 5 Alaska, 468; Covington v. Westbay (1914) 156 Ky. 839, 162 S. W. 91; Knapp v. Roche (1884) 94 N. Y. 329; Gaetjens v. New York (1911) 145 App. Div. 640, 130 N. Y. Supp. 405; Adams Exp. Co. v. Beckwith (1919) 100 Ohio St. 348, 126 N. E. 300; St. Louis, I. M. & S. R. Co. v. Bass (1911) Tex. Civ. App. 140 S. W. 860; J. Rosenbaum Grain Co. v. Mitchell (1911) Tex. Civ. App. 142 S. W. 121; Chamberlin v. Murphy (1868) 41 Vt. 110.

-

[blocks in formation]

In some cases it seems that a partial satisfaction was not urged as a release of all claims. An owner of property is not entitled to recover of those who have made a wrongful levy thereon, the full value of the property, where in accordance with his instructions a part of the property has been turned over to one of the parties jointly liable for the wrongful levy, as the assignee of a mortgage thereon. Bowman v. Davis (1889) 13 Colo. 297, 22 Pac. 507. The court says that when an injured party has voluntarily received satisfaction, or partial satisfaction, for the injury from one tortfeasor, he cannot recover the same again from the others who aided in committing the wrong. That in the case at bar the plaintiff had received the benefit of the credit upon his mortgage note, and could not again recover from any of the defendants, the amount thus credited.

It has been held that an acknowledgment of "full payment and satisfaction of all claims and demands of every kind and description, against" the party released, followed by a statement that the injured party "does hereby release said Bartholomew (the tort-feasor) from all such claims and damages," is an acknowledgment of full satisfaction, and releases the other joint tort-feasor. Fennell v. Fechter (1918) 181 Ky. 101, 203 S. W. 879. Compare with Edens V. Fletcher (1908) 79 Kan. 139, 19 L.R.A. (N.S.) 618, 98 Pac. 784, supra, in which there was an acknowledgment of full satisfaction and payment for all damages and injuries arising out of, or in any manner connected with, the causes of action against the tort-feasor with whom the settlement was made. In the Edens Case, however, there was an express reservation of the right against any and all other defendants.

But satisfaction of a judgment obtained against one tort-feasor releases other joint tort-feasors. Westbrook v. Mize (1896) 35 Kan. 299, 10 Pac. 881; Irwin v. Jetter Brewing Co. (1917) 101 Neb. 409, 163 N. W. 470; Lord v. Tiffany (1885) 98 N. Y. 412, 50 Am. Rep. 689. Although the receipt of a sum of money from the sale of a judg

ment against one tort-feasor does not, in the absence of a release to, or of an accord and satisfaction with, such wrongdoer, discharge or release a joint tort-feasor, except pro tanto, yet such a sale, and the payment of the proceeds of it to the injured person, reduce the damages which he is entitled to recover from the other tortfeasor. Brennan v. Electrical Installation Co. (1905) 120 Ill. App. 461.

c. Statutory rule.

It is made a rule by statute, in some jurisdictions, that receipts, releases, and discharges must be given effect according to the intention of the parties. Under such a Code provision, a release of one joint tort-feasor does not discharge others, where it was not so intended. Smith v. Gayle (1877) 58 Ala. 600; Home Teleph. Co. v. Fields. (1907) 150 Ala. 306, 43 So. 711; Wright v. McCord (1920) 205 Ala. 122, 88 So. 150. And see Thompson v. Nashville, C. & St. L. R. Co. (1909) 160 Ala. 590, 49 So. 340, infra, note 30.

But the consideration paid by one tort-feasor to secure the release inures to the benefit of the other tort-feasors; that is, it is a satisfaction to the amount of the payment. Smith v. Gayle (Ala.) supra.

Other statutes provide that the plaintiff may release either tort-feasor without destroying his claim against the other. The West Virginia statute provides that a release to, or an accord and satisfaction with, one joint trespasser, shall not inure to the benefit of another, and shall be no bar to an action or suit against such other joint trespasser for the same cause of action to which the release or accord and satisfaction relate. Under this statute, it was held in Leisure v. Monongahela Valley Traction Co. (1920) 85 W. Va. 346, 101 S. E. 737, that a release, given to a railroad company by an employee who was injured by coming in contact with an overhead wire while standing on top of a moving car, did not discharge the owner of the wire for liability for his negligence.

The provisions of the Kansas statute are not set out in the opinions in

the cases. It seems, however, to have related only to a liability after judgment. That a compromise and discharge of one tort-feasor after judgment did not discharge the others was held in Missouri, K. & T. R. Co. v. Haber (1896) 56 Kan. 717, 44 Pac. 619. This statute was held applicable in a case of separate actions in Meixell v. Kirkpatrick (1883) 29 Kan. 679, where the plaintiff, who had brought separate actions founded in against two defendants for injuries growing out of the same transaction, and had obtained judgment in each action, was held entitled to compromise his claim against one of the judgment debtors and release him, without discharging the other, except to the amount of the satisfaction received in the compromise.

tort

That a reservation of the right against other debtors, in giving a release to one, prevents the release from discharging all is made the rule by the statute referred to in Irwin v. Scribner (1860) 15 La. Ann. 583, although in that case a statement in the release that it was not the intention of the parties thereto to prejudice or favor the trial against the other defendants, but merely to fix the amount required of the party to whom the release was given, was held not to be an express reservation of the rights of the plaintiff against the other debtor, such as was required by the statute. In Orr v. Hamilton (1884) 36 La. Ann. 790, article 2203 of the Louisiana Civil Code, which declared that a remission or conventional discharge in favor of one of the codebtors in solido discharges all the others, is held to apply to obligations arising ex delicto, as well as to contract obligations.

[blocks in formation]
[blocks in formation]

This statute was, as pointed out in Abbott v. Senath (1922) Mo. 243 S. W. 641, evidently intended to abrogate the rule at common law that a release of one joint tort-feasor operates as a discharge of other tortfeasors; but it does not affect the principle that there can be but one satisfaction for the same wrong, and consequently a release given one joint tort-feasor, which by its terms is "in full payment of all demands" for the injury received, operates as a discharge of other joint tort-feasors, for, being without limitation or reservation, it indicates that the person injured considered that he had effected a complete settlement, and that he thereby acknowledged, and intended to acknowledge, satisfaction in full of his cause of action. This theory, that the statute was not intended to affect a settlement and release given in full of all claims arising out of the injury, was reiterated in Knoles v. Southwestern Bell Teleph. Co. (1924) 218 Mo. App. 235, 265 S. W. 1005, and the decision in the Abbott Case approved. It was held, however, in the Knoles Case, where an employee of a phone company, while working for his employer, was injured by coming into contact with a live wire belonging to an electric light company, and had instituted suit against the light pany, demanding $15,000 dam ages, that a stipulation, entered into after the defendant light company had filed its answer denying liability, rec the sum demanded and the fact that the light company denied liability, wherein the light company agreed to, and did, pay the plaintiff the sum of $2,000, in order to compromise, adjust, and forever settle" the plain tiff's claim, which he acknowledged to be in full of all claims of every kind and

tele

com

iting

character against the light company, did not as a matter of law release the telephone company from liability. The court stated that the release was vitally different from that in the Abbott Case, which, as already pointed out, was, by its terms, in full for all damages arising out of the injury; that is, out of the cause of action. The court states: "But the release in the case at bar is not thus tightly closed and hermetically sealed; on the contrary, it expressed an entirely different thought. The receipt or release involved herein shows on its face that plaintiff was claiming and demanding $15,000 damages, but the traction company was insisting that it was not liable for any damages, and a suit was pending as to this issue; wherefore plaintiff agreed, in compromise of that claim, to accept the sum of $2,000, not, as stated in the Abbott release, in full of all demands arising from his injury, but 'in full of all claims of every kind and character against the said defendant.' It is true that the release theretofore recited that it was made to forever settle the claim, and thereafter said the $2,000 was accepted in full of all his claims and demands, but manifestly this refers to the 'claims of every kind and character against the said defendant,' the only claims the receipt had said it was in full settlement of, and the only claims it was dealing with."

Under a statute giving a city of a certain population the right to compel a joining with it as a codefendant any person jointly liable with it to the plaintiff, a plaintiff who enters into a covenant not to sue a joint tortfeasor thereby bars himself from pursuing the city. Funk v. Kansas City (1912) Mo. App., 208 S. W. 840.

-

A statute providing that all receipts, releases, and discharges in writing, whether of a debt of record or a contract under seal, or otherwise, shall have effect according to the intention of the parties thereto, does not have reference to actions ex delicto, but is confined to actions ex contractu. Smith v. Dixie Park & Amusement Co. (1913) 128 Tenn. 112, 157 S. W. 900.

It has been held that a release given to the legal representatives of a deceased joint tort-feasor does not discharge the surviving tort-feasor, unless an intent to release the survivor is manifest from the release. German American Coffee Co. v. O'Neil (1918) 102 Misc. 165, 169 N. Y. Supp. 421. Two theories are advanced by the court in support of this decision. One is that the legal representatives of the deceased tort-feasor are not jointly liable with the surviving tort-feasor; the other theory rests upon a statute which, in providing for the survival of the right of action for wrong done to property rights or interests of another, provides that an action may be brought by the person injured against the executors or administrators of the wrongdoer, "in the same manner and with the like effect, in all respects, as actions founded upon contracts." In connection with this statute, the court refers to another, relating to the settlement with or release of a joint debtor, which provides that such settlement or release "does not impair the creditor's right of action against any other joint debtor, or his right to take any proceeding against the latter, unless an intent to release or exonerate him appears affirmatively upon the face thereof." The court holds that a release given to the legal representatives of a deceased wrongdoer has the same effect as a release given to a joint debtor in cases arising under contract.

The rule as settled by the court in Gilbert v. Finch (1903) 173 N. Y. 455, 61 L.R.A. 807, 93 Am. St. Rep. 623, 66 N. E. 133, supra, III. b, is stated to be in harmony with the statute of that state in reference to joint debtors. Code Civ. Proc. §§ 1942, 1944.

IV. Covenant not to sue; release construed as covenant.

By the great weight of authority, a covenant not to sue one joint tortfeasor is held not to amount to a release, and therefore such an agreement is held not to discharge the other tort-feasor.

United States. The Thomas P. Beal (1923; D. C.) 298 Fed. 121;

« PředchozíPokračovat »