OPINION
The complaint in this diversity action alleged that on April 23, 1966, plaintiffs were riding as passengers in a car op
Defendant answered the complaint denying liability, and filed a third-party complaint against Valetta N. Inclan and Larry Inclan, her husband, and owner of the ear in which plaintiffs had been riding, charging them with negligence which caused or contributed to plaintiffs’ injuries.
By their answer, third-party defendants denied the allegations of negligencе and pled a release which in relevant part provides:
“[Plaintiffs] for the sole consideration of Sixteen Thousand Two Hundred Fifty and °%oo Dollars to us in hand paid by Valletta Inclan have released and discharged * * * the said Valletta Inclan * * * and all other persons, firms or corporations from all claims, demands, damages, actions, or causes of action, on account of damage to property, bodily injuries or death, resulting, or to result, from an accident * * * which occurred on or about the 23rd day of April, 1966, by reason of automobile accident on Pa. Rt. 19 in Peters Township, near McGrann Hill entrance, Pennsylvania * *
By answers to defendant’s Requests for Admission of Facts and Genuineness of Documents, plaintiffs asserted that the release was the product of negotiations between their attorney and Mrs. Inclan’s insurance carrier, that the release was executed by them, and that the stated consideration was paid to them.
Defendant has moved fqr summary judgment pursuant to Rule 56 оf the Federal Rules of Civil Procedure, alleging the absence of a genuine issue as to any material fact and asserting a right to a judgment against plaintiffs as a matter of law.
A substantial amount of the argument regarding this Motion concerned the law аpplicable. Plaintiffs urge a reference to the West Virginia law, where they are domiciled and where the release was executed. Defendant argues for a reference to the law of Pennsylvania, where it appears that hе is domiciled
Both parties acknowledge the common law rule that the release of one joint tortfeasor has the effect of discharging all other joint tortfeasors. Both also acknowledge that Section 4 of the Uniform Contribution Among Tortfeasors Act, as enacted by the General Assembly of Pennsylvania, provides : “A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless thе release so provides * * *" 12 P.S. § 2085. However, plaintiffs urge that a different result obtains under a West Virginia statute which provides:
“Liability of Joint Tort Feasors Not Affected by Release to or Accord and Satisfaction with Another. — A release to, or an aсcord and satisfaction with, one or more joint trespassers, or tort feasors, shall not inure to the benefit of another such trespasser, or tort-feasor, and shall be no bar to an action or suit against such other joint*132 trespasser, or tort fеasor, for the same cause of action to which the release or accord and satisfaction relates.” Michie's Code of 1966, § 55-7-12.
Plaintiffs seek to deny defendant the benefit of the release by relying on Mayle v. Criss,
“In view of the manifest law of West Virginia that specific words limit the meaning of general words, and the statutory declaration that a release to one or more joint trespassers shall not inure to the benefit of another such trespasser, it is my judgment that ‘all other persons’ should not be construed to effect the release of [defendant], who was not a party to its execution аnd who paid none of the consideration.”169 F.Supp. 60 .
Reviewing the construction of the release in Mayle v. Criss, we note that the law of West Virginia observes the customary rule of contract construction which requires that the intent of the parties as gathеred from the entire language of the instrument be ascertained. Bowlby-Harman Lumber Co. v. Commodore Services, Inc.,
In Panichella v. Pennsylvania R. Co.,
Reviewing now the Court’s construction of the West Virginia statute in Mayle v. Criss, supra, we can not agree that it denies effect tо the release as it pertains to defendant. In Leisure v. Monongahela Valley Traction Co.,
In each instance the principle, that the release of one joint tortfeasor does not operate tо release other joint tortfeasors, was invoked to answer argument urging a result in accordance with the contrary pre-statutory rule that a release of one tortfeasor releases all joint tortfeasors. The West Virginia decisionаl law has not applied the statute to a release analogous to that at bar.
Section 885(1) of the Restatement of Torts, states “a modification of earlier common law rules.” Restatement, Torts, § 885, comment b. It asserts:
“A valid release of one tortfeasor from liability for a harm, given by*133 the injured person, discharges all others liable for the same harm, unless the parties to the release agreed that the release shall not discharge the others, and, if the release is embodied in a document, unless such agreement appears in the document.” Restatement, Torts, § 885(1).
Section 4 of the Uniform Joint Contribution Among Tortfeasors Act and Section 4 of the Uniform Joint Obligations Act which modify the earlier common law rule, enforce the agreement of the parties to the release regarding its scope. Statutes in Florida, F!a.Stat. § 54.28, F.S.A., and Michigan, Comp.Laws. 691.562, have abolished the common law rule without explicit reference to the effect of a release with a scope broader than the named parties thereto. A Missouri statute, Rev.Stat. § 537.060, is likewise silent. Yet a Missouri court has held that a release acknowledging that the consideration received is in full satisfaction of the releasee’s injuries is effective to discharge the obligations of other joint-tortfeasors. New Amsterdam Casualty Co. v. O’Brien,
In Mayle v. Criss, supra, the Court refused to allow the defendant to benefit from the release, because he “ * * * was not a party to its execution and [he] paid none of the consideration.”
Lastly, there is nothing inconsistent between giving effect to the clear intent of the release at bar and the language of the West Virginia statute. By its terms, the agreement is “a release to all other persons,” the latter term reаsonably including defendant. Cf. Hasselrode v. Gnagey,
For the reasons above-stated, we are unable to construe the governing West Virginia statute in accordance with Mayle v. Criss, supra. On the contrary, we conclude that West Virginia’s legislation establishes a rulе of láw identical in result to Pennsylvania’s.
Plaintiffs also argue that the release may not be given effect to release defendant in the absence of a judicial determination that the Inclans were liable for plaintiffs’ injuries.
Although the earlier precedents are not uniform, cf. Peterson v. Wiggins,
In a number of thesе precedents, the terms of the release are not reported in the opinions. However, from the Court’s treatment, it appears that the party procuring the release was the sole stated beneficiary. Peterson v. Wiggins, supra; Thomas v. Central R. Co. of New Jersey,
In Panichella v. Pennsylvania R. Co.,
On appeal, the judgment for the plaintiff was reversed; the Court holding the release to bar the plaintiff’s claim against the defendant. Although the case was deemed by both Courts to be governed by federal law, it is significant that the jury’s finding that the third-party defendant was not negligent did not bar applying the release to the defendant’s benefit. For federal law also recognizes the doctrine that the release of one who in fact is not liable for an injury to another does not operate to release the culpable tortfeasor. Hume v. American-West African Line, Inc.,
Both Hasselrode v. Gnagey, supra, and Long v. Heinberger,
Although the two lines of cases reviewed appear to conflict, we believe that they arе reconcilable, although the deciding Courts have not sought to accommodate them to each other. The doctrine pertaining to the effect of a release to one who is not liable for an injury was adopted to narrow the scope of the harsh common law rule. See Anno.
No authority has been tendered suggesting that West Virginia’s law is contrary in this regard. Accordingly, in the absence of demonstrable difference between the law of the two jurisdictions, wе shall apply the law of the forum. Cf. Continental Casualty Co. v. Thompson,
An appropriate order will be entered.
ORDER OF COURT
And now, to-wit, this 17 day of April, 1969, it is hereby ordered and directed that the motion of the defendant for Summary Judgment against the plaintiffs be and the same hereby is granted.
Notes
. Defendant admitted the complaint’s aliegation that he was and is a “resident of the State of Pennsylvania.” However, plaintiffs have subsequently argued that defendant is a citizen of Ohio,