292 P. 577 | Mont. | 1930
Citing in support of appellant's contention that an agreement not to sue one joint tort-feasor which expressly reserves the right to sue another joint tort-feasor, does not operate as a discharge of the tort-feasor thus expressly excluded: Carey v.Bilby, 129 Fed. 203, 63 C.C.A. 361; Berry v. Pullman Co., 249 Fed. 816, L.R.A. 1918F, 358, 162 C.C.A. 50; Barnett v.Conklin, 268 Fed. 177; The Thomas P. Beal, (1924) 298 Fed. 121; Gamble v. Brown, (1928)
Plaintiff alleged that the Buick car had the right of way, and that defendant negligently and without signal or warning suddenly changed his course, driving directly in the pathway of the approaching Buick, causing the collision. Plaintiff pleaded various city ordinances and the violation thereof by defendant. Defendant denied negligence on his part, himself pleaded city ordinances and the violation thereof by Whalen; alleged, interalia, that Whalen was driving the Buick automobile at an excessive rate of speed and in a careless and imprudent manner; that Whalen was intoxicated; that plaintiff was riding on the front seat with him, and, with full knowledge and appreciation of his negligent and careless acts, made no effort to prevent him from so driving, and did not request him to stop or even to slow down. Defendant also pleaded accord and satisfaction. The affirmative allegations of the answer are denied by the reply.
Upon the trial plaintiff introduced testimony and rested. The only evidence offered by defendant was an agreement entered into between plaintiff on the one part, and Thomas *262 Whalen and the National Cash Register upon the other. Thereupon the court, of its own motion, directed a verdict in favor of defendant, upon which judgment was entered, and from which this appeal is prosecuted.
1. Counsel for defendant insists that the judgment can be[1] sustained for the reason that there is no substantial evidence tending to show that defendant was negligent. Without entering into a discussion of the evidence bearing upon the point, we are of the opinion that there was some substantial testimony tending to show that defendant drove from Harrison Avenue into Rowe Road and directly in front of the approaching automobile driven by Whalen, without giving a signal or warning of any kind. If this is so, he was negligent. It is true that plaintiff's evidence upon the point is not altogether clear, but, taking it altogether, the question presented is one of fact for a jury, not one of law for the court.
We have often said that no cause should ever be withdrawn from[2, 3] the jury unless the conclusion from the facts necessarily follows as a matter of law that no recovery can be had upon any view which reasonably can be drawn from the facts which the evidence tends to establish. (McCabe v. MontanaCentral Ry. Co.,
2. Whether the plaintiff, a guest, was guilty of contributory[4] negligence was also for the jury. The rule is that the negligence of the driver of an automobile is not generally imputed to the passenger; but this does not absolve the passenger *263
from taking such precautions for his own safety as under the particular circumstances are reasonable (Laird v. Berthelote,
Plaintiff was riding on a front seat, a "jump-seat," of[5] Whalen's car. Just before the accident she had turned and was conversing with her friends on the rear seat. She did not observe defendant's car turning to the west until, momentarily glancing to the front, she observed the car's headlights as it turned. The danger was sudden and imminent, and it does not appear that she could then have done anything to avoid the collision. Certainly, on this feature of the case, it cannot be said as a matter of law that contributory negligence can be attributed to her. (Wanner v. Philadelphia Reading R. Co.,
Before reaching Rowe Road, Whalen had been driving from[6] thirty-two to thirty-five miles an hour, which is faster than the ordinance permits, but he had slowed down to avoid a car coming into the avenue from the west, which turned south on the avenue. Even if it should appear that Whalen drove upon the crossing at a greater rate of speed than the ordinance permits and therefore was himself guilty of negligence, it does not follow as a matter of law that plaintiff, his guest, was, for the same reason, guilty of contributory negligence. (Offerman v.Yellow Cab Co.,
3. The plaintiff was seriously injured. For a time she lay at the point of death and undoubtedly she is to a considerable extent crippled for life. The accident happened on July 16, 1927.[7, 8] In June, 1928, plaintiff entered into an agreement with Whalen and National Cash Register Company which reads as follows:
"Whereas, on or about July 16, 1927, the undersigned, Edith Black, while riding in a Buick automobile driven by Thomas Whalen along a public highway in the county of Silver Bow, State of Montana, received injuries as the result of a collision between the automobile in which she was riding and a Chevrolet automobile, then being driven by S.P. Martin; and
"Whereas, the undersigned has heretofore claimed that Thomas Whalen brought about the aforesaid collision as a result of the negligent manner in which he was driving the said Buick automobile which collided with the aforesaid Chevrolet and she has further claimed that at the time of the collision said Whalen was acting as the agent of the National Cash Register Company, a corporation; and
"Whereas, said National Cash Register Company and said Thomas Whalen have each and both denied liability and responsibility for the causing of the injuries to the undersigned; and
"Whereas, the undersigned and said National Cash Register Company and Thomas Whalen have negotiated each with the other looking towards a compromise of the claims of the undersigned against said company and said Whalen and have determined upon an amount to be paid to effect such compromise and upon the other conditions thereof: *265
"Now Therefore, in consideration of the sum of Twelve Hundred Fifty Dollars to the undersigned in hand paid, she agrees for herself and for her successors in interest, executors, administrators and her heirs to discharge all her claims against said National Cash Register Company and said Thomas Whalen and that she will not hereafter institute or prosecute or suffer to be instituted or prosecuted any suit or action to recover of or from National Cash Register Company and/or Thomas Whalen damages or compensation of any kind, character or description for injuries to her person accrued, accruing or hereafter to accrue and/or to her property, for, because of, on account of, or in any manner connected with or growing out of the occurrence of said accident aforesaid: but in this connection it is expressly understood and agreed that the acceptance of the payment aforesaid is made with the express reservation to the undersigned of the right to prosecute any claims which she may have or which she may assert against S.P. Martin because of the manner in which he drove the automobile colliding with the one wherein the undersigned was riding at the time of the aforesaid collision. Edith Black." (Duly acknowledged.)
The trial judge instructed the jury to return a verdict for defendant upon the theory that Whalen, National Cash Register Company, and defendant were joint tort-feasors, and that, as plaintiff has but one cause of action against all persons responsible for her injury and damage, by releasing two of the tort-feasors, she also released the third. Whether the court was correct in this view presents the main question in this case and it is one of first impression in this court.
Preliminary to the main discussion we shall advert to some well-settled principles. If the concurrent negligence of two or more persons causes an injury to a third person, they are jointly and severally liable, and the injured person may sue them jointly or severally, and recover against one or all. (45 C.J. 895;McDonald v. Robinson,
A tendency to break away from this harsh doctrine, which disregards the intention of the parties, deters compromise, and fails to recognize the vital distinction between full and partial satisfaction, was not long in manifesting itself. Taking advantage of the rule that a covenant not to sue one or more joint tort-feasors does not release the others (Clerk Lindsell on Torts, 170; collection of authorities in 50 A.L.R., pp. 1081, 1082), courts began to construe a release containing a reservation of rights as a covenant not to sue, rather than as a technical release. By some this device has been denounced as a subterfuge, but excusable, in order to arrive at substantial justice. This criticism loses much of its force when it is seen that the foundation of the qualification of the rule is the intention of the parties; this is the basis of the decision inDuck v. Mayeu, 2 Q.B. 511, as a result of which the rule in England now is that, where a party purports to release one wrongdoer with a reservation of his right of action against another, this is to be taken as an agreement not to sue rather than as a release. (Clerk Lindsell on Torts, 8th ed., 169.)
The supreme court of Wyoming says: "When the writing expresses an intention to release one joint tort-feasor and also an intention to reserve the right to sue the other, the two intentions are repugnant if the words of release be given their strict technical meaning, but they are not repugnant if the words of release be construed as an agreement not to sue the one with whom the compromise has been made." (Natrona Power Co. v.Clark,
An instrument, qualified as is the one in suit, even if it be termed a "release," shows on its face that it was not the intention of the parties to destroy the injured person's right of action against the other tort-feasors, and negatives the idea that the injured person has received more than part satisfaction. Such an instrument is to be considered according to its intention. It releases the tort-feasor to whom it is executed as if it were in fact an express agreement not to sue, and to *268
that extent releases the other tort-feasors pro tanto only. As sustaining this conclusion, see Adams Express Co. v.Beckwith,
Professor Williston says there appears to be "no reason of technical principle to distinguish the effect of a covenant not to sue or a release of one of several obligors under a joint and several liability in tort with a reservation of rights against the others from the effect of a similar release given to a joint and several contractor, and many decisions, accepting that analogy, permit an action to be maintained subsequently against the other tort-feasors, where one jointly and severally liable with them for the tort has been given a covenant not to sue him or a qualified release." (1 Williston on Contracts, sec. 338a. See 13 Cornell Law Review, 473.) *269
Dean Wigmore says the rule that a release to one of several joint tort-feasors is a discharge to all is merely a "surviving relic of the Cokian period of metaphysics." The real juristic vice of the rule, he says, is the claim that "mere words of release to A must inexorably signify also a release to B and C. Nothing but false logic prevents a complete repudiation of this principle. Some courts * * * have repudiated the hoary fallacy on common law grounds" — citing Kropidlowski v. Pfister V.L.Co.,
Professor Throckmorton approves the modern rule in these words: "And there is now a very respectable body of modern judicial authority in support of the sound and reasonable rule that every instrument in the nature of a release of a joint tort-feasor should be construed so as to carry out the intent of the parties, and, as not having the effect of releasing those tort-feasors not parties to it unless the intent to release them appears from a reasonable interpretation of the entire instrument." (Throckmorton's Cooley on Torts, 1930, sec. 80.)
That the instrument in suit should be construed agreeably to the intentions of the parties is consistent with our statute and the former holdings of this court. (Sec. 7527, Rev. Codes 1921;Ferry Co. v. Forquer,
As each tort-feasor is liable for the entire damage, if one[9] sees fit to secure acquittance for himself by compromise with the injured person, he does no wrong to those who are jointly liable with him. How can they complain if he has paid part of the damage? They are not prejudiced by the settlement, but on the contrary are benefited, for each is entitled to have the amount of any judgment rendered against him reduced by the amount paid by his cotort-feasor. (Adams Express Co. v.Beckwith, supra.)
The law favors compromises. This is especially true in tort[10] actions, not only because they relieve the labors of *270 courts, and avoid expense, but also because, where the parties agree between themselves upon a settlement of the claim, the result reached is frequently a more equitable adjustment than is possible to be had in a court of law. (10 Virginia Law Review, 72.)
The circuit court of appeals, speaking through Judge Thayer, said in Carey v. Bilby, 129 Fed. 203, 206, 63 C.C.A. 361. "We are of opinion that the doctrine enunciated in the cases last cited [Gilbert v. Finch, supra, and others] is supported by the greater weight of authority, and is founded upon the better reasons. It has the merit of giving effect to the intention of the party who executes such an instrument, which should always be done when the intention is manifest and it can be given effect without violating any rule of law, morals, or public policy. Besides, we are not aware of any sufficient reason which should preclude a person who has sustained an injury through the wrongful act of several persons from agreeing with one of the wrongdoers, who desires to avoid litigation, to accept such sum by way of partial compensation for the injury as he may be willing to pay, and to discharge him from further liability without releasing his cause of action as against the other wrongdoers. The law favors compromises generally, and it is not perceived that an arrangement of the kind last mentioned should be regarded with disfavor."
Summing up, the true rule appears to be that, if the injured party has accepted satisfaction in full for the injury suffered by him, the law will not permit him to recover again for the same injury; but he is not so affected until he has received full satisfaction, or that which the law considers such. If he receives part of the damages from one of the wrongdoers, the receipt thereof not being understood to be in full satisfaction of the injury, he does not thereby discharge the others from liability. (Note to Abb v. Northern Pacific Ry. Co., 92 Am. St. Rep. 874, 875, and cases cited; Dwy v. Connecticut Co., supra; Gilbert v. Finch, supra; Walsh v. New York Central *271 H.R. Co., supra; Adams Express Co. v. Beckwith, supra;Natrona Power Co. v. Clark, supra.)
Tanner v. Bowen,
It follows that the judgment must be reversed and the cause remanded for a new trial, and it is so ordered.
ASSOCIATE JUSTICES FORD and ANGSTMAN concur.
ASSOCIATE JUSTICES MATTHEWS and GALEN, being absent, did not hear the argument, and take no part in the foregoing decision.
