Hesketh Gomes v. Canute A. Brodhurst and Anderson Stanley. Canute A. Brodhurst
394 F.2d 465
3rd Cir.
1968
Check Treatment

*2 prop- judge trial that We conclude erly as a covenant document construed the running defendant. named to the Christiansted, Marsh, John D. St. document portions The relevant Croix, (Young, Marsh, V. I. & Isherwood provided: Christiansted, Croix, I., on St. V. * * * * * * brief), defendant-appellant. $9750.00, for “For hereby undersigned covenant does George Foster, Christiansted, N. St. *** * * * from refrain forever Croix, I., appellee. for V. aiding any way prosecuting inor MARIS, Before FREEDMAN and against Anderson claim suit Stan- or * * * COFFIN,* Judges. ley Circuit agents, all successors and per- assigns his, all other and and corporations sons, for whose firms and OPINION THE OF COURT any of them or to or acts whom (hereinafter might liable, referred be COFFIN, Judge. Circuit parties), said account [on to as A before trial of a ac- week ** question] *. accident against plaintiff defendants, two hereby it * “For said consideration one de- executed document favor of * * agreed: all that further Sue”, fendant To entitled Not “Covenant undersigned may rights which the accepted $9,750 him, from on the parties proceed against other complaint eve withdrew his parties expressly re- said hereto are that de- defendant. The other * * served; (Emphasis *.” fendant, appellant case, in this moved original.) production document allege plain- amended his answer to example of an The document compensated. tiff fully had been draftsmanship. adept The reference inappro- example of is one “successors” At trial shown document was language priate language. But the jury to. re- alluded The court appel- difficulty causes fused to allow counsel defendant’s bring himself within lant seizes payment. ask if he had received undertaking. He scope jury plain- The returned a argues agreed that, re- since tiff both defendants suing person “to whom $50,000.1 frain re- amount of then * ** liable”, [Stanley] by $9,750, duced the verdict amount Stanley joint tort-feasor would since as a set Not forth so-called “Covenant (in- appellant liable to contribution To Sue”. * Notwithstanding plaintiff’s desig- “Withdrawal Circuit, sitting by First Of the to, the court of Action” referred above nation. put questions special toas negligence of each defendant. pay (or promise to $9,750 cept person), deed, to no be liable would of his amount) full satisfaction sought class is included in injuries. argues protected. Appellant also clause uses that, reservation since the Affirmed. also in- parties”, “said the words *3 exception reserva- cluded Rehearing Petition for tion. Following appeal, a our on the decision interpretation this the correct Were urging petition rehearing for was filed part— document, prominent most question: further us consider the reserving rights to italicized clause judg- extent, all, if at should the against “parties proceed than said against appellant to re- ment be reduced meaning parties” what- no have —would right flect contribution correct- soever. We think the trial court help question have. To answer this ly interpreted a covenant document as requested we and received additional running only named to the defendant briefs from counsel. rele- Were extrinsic evidence therein. recog- approach the vant, by plaintiff’s with full supplied it would be nition result should attempting we reach ac- action his withdraw long-standing consistent with Stanley only. sys- policy underlying any considerations second the case issue in encouragement tem of contribution: judge whether was error for voluntary settlements, equitable inquire on to have allowed counsel among liability distribution tort- issue whether considered feasors, elimination or minimiza- Stanley settlement with full satisfac as tion of collusion. Appellant places justifiable tion. stress question opinion The first on the Rut is whether a Associate Justice right ledge Austin, D.C.Cir., generally of contribution exists McKenna v. 228, 1943, U.S.App.D.C. 77 F.2d 659. That no such 134 fairly right recognized language; quoted following He at common law has long See, Merryweather g., been clear. e. “Whether is made and settlement Nixan, Eng.Rep. v. 101 1337 merely accepted as full or satisfaction Nor do find we reference to a compromise best for obtainable reported decisional the settler’s crucial is- is the law of ex Islands. After sue, ordinarily fact. If one of however, tended consideration, we agreement’s however the terms leave compelling decided that there is no reason doubt, no room for the decision should deny applying to defer or what we deem be made as a matter of Id. at law.” a rule of reasoned fairness.1 There is longer legitimate sys place a in our case, In this tem, if, indeed, as we have indicated was, there ever for a rule discussing issue, say the first places we of law which the full burden of the document itself no room leaves part restitution one who is judge properly doubt. The ruled responsible plaintiff’s for a loss. Such case, effect facts of this philosophy stems a more ancient plaintiff, law, day as a matter did not ac- easily intermingled which more deciding, recognition 414, In so with full (1931); Minn. 236 183 N.W. 766 limitations, reputable our company. Co., feel we have v. Goldman 292 Mitchell-Fletcher Feltman, 354, (1928); See Knell v. 85 U.S. 141 Pa. A. 231 American App.D.C. 22, (1949); 448, Billingsley, 174 F.2d Best 662 v. Cas. Co. Tenn. 195 Yerkes, v. (1953); 247 Iowa N.W.2d Chicago 77 260 S.W.2d 173 Ellis v. (1956); Co., 60 A.L.R.2d 1354 Hobbs & N.W.R. 167 Wis. N.W. 167 Hurley, (1918); Me. 104 A. 815 Duluth, Ry. McCarthy, M. N.& Co. v. figure and allow compensatory penal considerations. difference, (3d ed. as did the district court Prosser, Torts 47§ adopt pro rata 1964). case. Should we settle- reduction rule2 we would view inquiry whether Our next partial cause ment sale by one tort obtained not to sue covenant action, perhaps less than albeit ac operate to an bar feasor should worth, represent- what it is an amount tion joint contribution ing the fraction. too, question, This tortfeasor. settling No. of Voluntary easily settlements answered. Finally, -. encouraged permit and a rule No. ting circum under such contribution special questions we could order that Not to that end. not work stances would only put to determine *4 would a tortfeasor defendant negligence among joint and any stripped but of to settle incentive judgment against non-settling de- assess positive a incentive he would have percentage on of a of fendants the basis actively participate in his trial and stand the verdict. liability. in to minimize defense order his approaches The re first two we ques- on two our these We state views ject principally they the sys- because leave our interest a to make clear tions open very field of settlement much provides equitable dis- for the tem which arrangement plaintiff collusive a joint between and of fault tribution yet joint and a favored tortfeasor. This encourages out-of-court settlements. where, here, especially so as we held have recognize a maxi- that rule which We against no of contribution exists goals to some one of these must mizes settling the remain tortfeasors.3 Of two other. task extent work Our ing persuaded choices a we them as we can harmonize best system non-settling which taxes tort deciding upon formula to a determine negligence, feasors to extent of their by plaintiff a owed successful amount non-settling a further, equitable. and no is the more tortfeasor. defendant options open to us. system There are several such a The fairness of is evi- might, liable one, consider him aspect We dent. The troublesome in our view irre- full of implementation amount the verdict is whether its will serve by spective any encourage of discourage amount received to prior settlement argument consideration for a covenant to trial. The made is plaintiff, not to from sue. Or we subtract a unable know with representing certainty verdict an amount before verdict the extent of Compare anyone the Uniform Contribution contribution from and who settles Among flatly pro Act of U.L.A. Tortfeasors 9 orders a rata reduction. Austin, (1957), McKenna 77 233 with v. U.S.App.D.C. 228, Among A. 134 F.2d 148 3. The Uniform Tort- Contribution (dictum) (1943) (Supp. Martello L.R. feasors Act 1253 9 U.L.A. 125 Hawley, U.S.App.D.C. 1967), provides 112 300 settlement (holding). (1962) pro 1939 F.2d The 721 shall effect tanto reduction of the a prerequisite against non-settling requires, in a Act amount recoverable settling tortfeasors, attempts con from sulation a tortfeasor to eliminate agree tribution, possibility by requiring a clause settlement of collusion providing ment “for a reduction section 4 that a covenant sue pro given “good re of the rata share of extent faith” order to dis- ® * * tortfeasors, charge settling dam leased We tortfeasors. ages necessarily test, subjective, all think such a recoverable promises spawn litigation subsidiary District tortfeasors.” The of Columbia settling effectively meeting problem does allow a tortfeasor rule without option insulating con himself from it for which was created. See by including stipulation Note, Cases, a tribution such Settlement Joint Tort 18 agreement. Instead forecloses in his Stan.L.Rev. theory comparative discharge into law recovery, be reluctant will See, gence e. tortfeasors. more of several one or 32-1002(4) (1962); g., Ark.Stat.Ann. liability. § find circumstance (1955); comparative weight 246-11 S.D. greater a Hawaii Rev.Laws under § 33.04A03(4) (Supp.1960). pro negligence system a rata Code § In case reduction rule. each announcing judi- Nor a rule such largely negotiates on the basis cially display particular do we think we recovery gross and the of an estimated Supreme Court of Wis- boldness.4 legal liability. negotiating tortfeasor’s important step consin before took juris- Thus, pro in a rata reduction Concededly, Schulze, supra. in Bielski v. diction, negotiating parties will bar- emphasized nat- how the Wisconsin gain high upon depending or low long was, given step ural such a its the likelihood of consider experience with negligence jury finding and de- as between tortfeasor, part alleged possession procedural fendants and its finding effect will practical allowing for mean- devices reducing plaintiff may the amount ingful implementation. Note, also realize on the from non-set- Colum.L.Rev. 380 But do not tling comparative neg- In functioning juries view Wiscon- ligence negotiating jurisdiction parties sin and as so different Islands bargain high depending or low *5 judicial pronouncement of the com- of consider to the extent be parative negligence doctrine, successful alleged negligence. Each tortfeasor’s one, in must be unworkable the other. system presupposes chance, an element of Indeed, comparative the Wisconsin and, given facts, depending on a set of gence statute, Wis.Stat.Ann. 331.045 § speed it more dif- make (1958), limited it as the effect is Schulze, ficult to achieve. Bielski v. See liability defendant’s con- (1962). 16 Wis.2d 114 N.W.2d tributory negligence, does no more than equities balance inherent in a legislate simple partitioning idea of comparative negligence system convince background, then, fault. The relevant of its us ultimate merit. decisional, but as evidenced add that introduction by seventy pages of annotations some comparative doctrine of following of the act.5 the statement a settlement and contribution context certainly cap- Islands is as not novel. The Uniform Act of 1939 judicial developement able of careful recognized to a in an it limited extent procedural the future. And as devic- optional paragraph of section 2 which necessary implementation es dispropor- reads: there “When is such a all-important rule, such a we note that tion of fault tortfeasors special long-standing equal inequitable to render an distribu- familiar tool in the federal workchest. among liability them of the common 49(a). Fed.R.Civ.P. by degrees contribution, the relative joint fault of the shall be applying In rule which we determining pro announced, considered in their rata imposing joint proportion to their shares.” And enacted states have some Keeton, 4. and defendants has not been deemed prerequisite It. Creative Con- applying tinuity Torts, doctrine to Harv.L. Law Rev. tortfeasor defendants. Hawaii Rev. 476-79 (1955); Mitchell v. Laws Branch, 246-11 § prior experience 128, 363 P.2d 969 In with com- 45 Haw. Hawaii parative negligence between necessary negligence, sub- special questions be stated rel. ex of America UNITED STATES jury, case tried to the mitted HILL, Appellant, Edward James degrees jury, to determine devised alleged tortfeasors. of fault of several Superintendent PINTO, Jer- New Warren here, having there been done This Rahway, sey Farm, State Prison dispositions. We alternative are several Jersey. New the action could affirm No. 16722. reducing judgment by the amount Appeals Court United States special settlement, but there is Third Circuit. parties on sanctity in or reliance 20, 1967. on Briefs Nov. Submitted apply to this such a resolution. We could ordering rule, pro case the rata April Decided reduced But the verdict. one half the amount of adopting special

there is no merit gone cases to verdict as have appeal presently process a rule bearing rejected no nec- we have degrees essary relationship of fault

Finally, possibilities there exist several remanding complete for new trial. A

new on all issues would not seem plaintiff-appellee, fair to who has

already establishing prevailed in his free- contributory negligence, his

dom from *6 defendant-appellant’s

damages, and necessary

gence. Nor would seem being damages,

reopen the issue of there

no contention these are excessive. present opinion which our issue damages.

has is the allocation of affected may pre- trial on

While alone problems,

sent think that fair- some compels

ness such a restriction. grant accordingly petition, re- court, judgment

verse the district

and remand cause for a new determining, proper in-

limited to damages structions, proportion of respon-

for which should be held

sible. If is found to be percentage

less the verdict than which diminished bears verdict,

the total correspondingly If shall reduced. increased, more, since it shall not be give appellee more

do so in effect would damages the total

entitled.