299 S.W.2d 229 | Tenn. Ct. App. | 1956
This canse involves an appeal by Paul V. Wyatt as plaintiff in error, who was also plaintiff in the lower court, from a judgment of the Circuit Court of Henry County dismissing- his action there against defendants, J. P. Lassiter, Jr. and William Kleeman, d/b/a Tennessee Absorbent Clay Company. The suit involved, was for personal injuries alleged to have been sustained April 25, 1955, while plaintiff was riding as a passenger in the rear seat of an automobile bieng driven northwardly on State Highway 69 inside the corporate limits' of Paris, Henry County, Tennessee. The declaration is in three counts. Defendants demurred to Count Three, but as plaintiff was on motion allowed to amend by striking this count, same is not now material. The negligence alleged against Lassiter and Kleeman, by Wyatt, in his declaration is that they constructed a framework over the highway which supported a continuous belt-type conveyor which was used to transport dirt, clay, or other material, and from which rows or mounds of hardpacked clay or other material had leaked and fallen from said conveyor onto the surface of the highway, which caused the wreck of the automobile in which plaintiff, Wyatt, was riding. Plaintiff, Wyatt, alleges that his back was broken, and he sues for $70,000 damages. In addition to the demurrer to Count Three, defendants filed a special plea to Counts One and Two of the declaration, in which they say that the plaintiff has settled and released the joint tort-feasor, Robert H. White, and that as a matter of law, this is a complete accord and satisfaction of all claims against these defendants. Without waiving their special plea, defendants also filed a plea of not guilty. In addition,
We deem it unnecessary to copy into this opinion the language of the ‘ ‘ Covenant not to Sue ’ ’, as it, in our opinion, conforms to the requirements of a “ Covenant not to Sue” as distinguished from a “Release”, as set out in Smith v. Dixie Park & Amusement Co., 128 Tenn. 112, 157 S. W. 900. The consideration recited in this “Covenant not to Sue ’ ’ is $5,000. The Order of Court entered in the Benton County case, omitting the caption of same and the Clerk’s certification, is as follows:
“In this entitled cause this day came the parties, plaintiff and defendant, by and through their attorneys of record out of term time, and it appearing that all matters in issue have been compromised upon a covenant not to sue, by consent it is ordered that plaintiff’s suit be, and the same hereby is dismissed, with prejudice, but defendant will pay all costs of the cause for which execution will issue. This voluntary dismissal is with prejudice, to another action against Robert White only. ’ ’
After the plea of defendants, Lassiter and Kleeman, in the Henry County Cirsuit Court, plaintiff, Wyatt, craved oyer of the instrument which is the foundation of defendants ’ special plea, — said special plea being a special plea of release, in the following language:
“Comes the plaintiff by his attorneys and craves oyer of the instrument which is the foundation of defendants’ special plea, said special plea being a special plea of release: or, in the alternative that the*130 defendants fail to produce the said release and make the said instrument a part of the record of their special plea, comes the plaintiff by his attorneys and. moves the Court that said special plea of release be stricken as there exists no ground on which a special plea of release can be based; therefore said special plea is frivolous. ’ ’
Subsequent to the filing of pleas by cross-defendant, Robert H. White, defendants, Lassiter and Kleeman, through their attorneys, filed a “Plea of Former Judgment”, which is as follows:
“The defendants for further and special plea to this suit, say that the plaintiff herein, Paul V. Wyatt, instituted suit against one Robert White in the Circuit Court of Benton County, Tennessee, for damages arising from this same accident and thereafter entered an order in said cause wherein it was recited among other things that ‘All matters in issue have been compromised upon a covenant not to sue, by consent it is ordered that plaintiff’s suite be and the same is hereby dismissed, with prejudice, but defendant will pay all the costs of this cause, for which execution will issue. This voluntary dismissal is with prejudice for another action against Robert White only. ’
“Said order remains unappealed from and un-reversed.
“Wherefore, this defendant pleads that if the judgment in the Circuit Court of Benton County, Tennessee discharged and released the defendant, White, it also discharged and released this defendant in this cause.”
Mr. Derington, attorney for plaintiff Wyatt, then moved the Conrt,
“In regard to the plea just read, we move that yon strike this as it is based on the same transaction— the covenant not to sne. ’ ’
Then follows an extended discussion between the Court, Mr. Derington, Mr. Aaron Brown, Mr. Bichard Dunlap, Mr. Carpenter, and Mr. James W. Van Dyke.
The transcript then recites, “This was all the evidence”, and, “Here the jury is recalled and dismissed.”
The discussion referred to above covers sixteen pages in the transcript of the record, but there is no indication that any of the lawyers referred to were sworn, or that they were undertaking to testify as witnesses. We therefore conclude that no evidence was introduced, and that these sixteen pages embody only the arguments of the attorneys and the oral ruling or rulings of the Court. Statements of fact made by the several attorneys, including especially the statements of Mr. Bichard Dunlap, and Mr. James W. Van Dyke, which may have materially influenced the ruling made by the learned trial judge, must all be considered merely as parts of their respective arguments.
Following these arguments, the learned trial judge, on the authority of Byrd v. Crowder, 166 Tenn. 215, 60 S. W. (2d) 171, ruled that the dismissal with prejudice in the Circuit Court of Benton County, coupled with the ‘ ‘ Covenant not to Sue” here involved, constituted a release to Mr. White, and thereby operated as a release of the
Thereafter, on March 26, 1956, an order was entered, which, omitting the caption of same, is as follows:
“This cause came on to be heard before the Hon. John F. Kizey, Judge, upon the motion of plaintiff, Paul V. Wyatt, to strike the special plea of the cross-defendant, Robert H. White, and likewise to strike the special plea of the defendants, J. P. Lassiter, Jr. and William Kleeman, heretofore filed in this cause, as well as the entire record in the cause, the argument of counsel, from all of which the Court is pleased to overrule the motion of plaintiff, Wyatt, to strike the plea of the defendants and does sustain the plea of the defendants and each of them to the effect that the order entered in the Circuit Court of Benton County, Tennessee, constitutes a bar to the defendant, Robert H. White, and is, therefore, a release of all joint tort-feasors.
‘ ‘ It is, therefore, ordered, adjudged and decreed by the Court that the order entered in the Circuit Court of Benton County, Tennessee and made a part of the record in this cause constitutes a bar to plaintiff’s cause of action against all parties who are defendants or cross-defendants to this suit, and that plaintiff’s*133 cause, including the cross-action instituted in this cause against the cross-defendant, Eobert H. White, be and the same hereby is dismissed at the cost of the plaintiff, for which execution will issue.
“To the foregoing action of the Court in dismissing the plaintiff’s suit, plaintiff excepts and prays an appeal to the next term of the Court of Appeals sitting at Jackson, Tennessee, which appeal is granted by the Court upon the plaintiff executing a bond as prescribed by law within thirty days. Plaintiff is allowed sixty days within which to otherwise perfect his appeal.”
Thereafter, plaintiff Wyatt made a motion for a new trial which was overruled, March 31, 1956.
Plaintiff Wyatt filed a bill of exceptions which embodies the arguments of attorneys and oral rulings of the Court, referred to above,3 and perfected his appeal to this Court.
The plaintiff, Paul V. Wyatt, as appellant in this Court, has filed five assignments of error which are as follows:
“Assignments of Error
“Now comes the plaintiff in error and assigns the following errors:
“I
“Circuit Judge erred in dismissing plaintiff in error, Paul Y. Wyatt’s, cause of action against defendants in error, J. P. Lassiter, Jr. and William Kleeman, d/b/a Tennessee Absorbent Clay Company, and holding that the order of voluntary dismissal entered in Benton County Circuit Court, which was not executed by Paul Y. Wyatt, was a*134 bar to any cause of action plaintiff in error had brought against any defendants in Henry County Circuit Court.
‘ ‘ Transcript page 43
“II
“It was error for the Circuit Judge to permit Attorneys, YanDyke & Dunlap for defendant, Robert White, to state over plaintiff in error’s objections, that such statements were in violation of the parol evidence rule, that the paper writing entitled ‘A Covenant to Sue’ executed by Paul Y. Wyatt and Attorneys, Yan Dyke & Dunlap for Robert White, was intended to be something other than a covenant not to sue.
“Transcript pages 29-31
‘ ‘ Transcript pages, 37, 39
“III
“The Circuit Judge wholly disregarded the rules of pleading and procedure.
“IY
“The Circuit Judge erred in taking judicial knowledge that cross-defendant, Robert White was a tort feasor and a joint tort feasor with defendants in error, Lassiter and Kleeman, without reference to any pleadings or without hearing any proof.
“Transcript pages, 35, 38, 40, 43
“Y
“The Court further erred in treating the parties cross-defendant as being before the Court, where the record discloses no process issued or was served on said parties by virtue of such cross action.”
The leading cases in Tennessee holding that a “Covenant not to Sue” does not bar the right of a plaintiff to sue another wrongdoer involved in the same transaction, are Smith v. Dixie Park and Amusement Co., 128 Tenn. 112, 157 S. W. 900, and Nashville Interurban Co. v. Gregory, 137 Tenn. 422, 193 S. W. 1053. On the other hand, the leading case which holds that a ‘ ‘ Covenant not to Sue” must be treated as a “Release” which bars recovery against a joint tort-feasor where it contains a provision that such covenant “may be pleaded as a defense to any action” which may be brought against the covenantee on the cause of action treated in the covenant, is Byrd v. Crowder, 166 Tenn. 215, 216, 60 S. W. (2d) 171.
In the case of Long v. Kirby-Smith, supra, there was involved, as there is in the instant case, not merely a
‘ ‘ Order
“ ‘Comes the plaintiff, Helena Kirby-Smith, and moves the Court for permission to take a non-suit as to Clyde Owens, individually, and S. T. Nichols.
“ ‘It is, therefore, ordered by the Court that this cause be and the same is hereby dismissed with full prejudice as to Clyde Owens, as Agent and Servant of S. T. Nichols, Clyde Owens, individually, and S. T. Nichols.
“‘/s/ AlanS. Kelly Circuit Judge
“ ‘Approved:
“‘/s/ Frank Hickerson
“ ‘Attorney for Plaintiff
“ ‘/s/ Harry C. Templeton
“ ‘Attorney for Defendants,
“ ‘Clyde Owens and S. T. Nichols.’ ”
The order in the instant case comparable to that quoted above, which was entered in the Circuit Court of Benton County, Tennessee, is quoted in the earlier part of this opinion.
That factor is, in our opinion, equally controlling in the instant case.
But, it is argued in the brief of attorneys for defendants, Lassiter and Kleeman, filed in this Court, that the order under consideration in the Long case, and the order involved in the case at bar, are entirely different in nature and effect, and it is therefore claimed that the decision in Long v. Kirby-Smith is not applicable to the facts of the instant case. Tabulation of such alleged material differences is set out in parallel columns, contrasting the distinctions between the two orders, as follows:
‘ ‘ The respective decrees provided:
The Long Case
(Opinion, [292 S. W. (2d) at page] 218)
(1) Did not purport to settle the issues between the parties, (Opinion, p. 220)
(2) Was not a consent order (Opinion, p. 222)
(3) Was merely a non-suit upon application of plaintiff, (Opinion, p. 218)
*138 (4) Was merely an undertaking to carry out the covenant not to sue, (Opinion, p. 219)
The Case at Bar (Tr. p. 24)
(1) Stated that “all matters in issue have been compromised * * *.”
(2) Was rendered by consent.
(3) Was a dismissal with prejudice to (mother action against the defendant, by consent, and by consent all costs were taxed against the defendant.
(4) The covenant not to sue was not acceptable to defendant, and the consent order as entered, which amounted to a complete settlement and release of Robert White, and was the real basis of the disposition of the litigation.”
We will take up and separately dispose of the four numbered “contrasts” which learned counsel for defendants, Lassiter and Kleeman, insist should produce a different result in the instant case.
First, with reference to the contention that the court order in the Long case did not purport to settle the issues between the parties, whereas the court order in the case at bar stated that “all matters in issue have been compromised * * *.”, the portion of the court order involved in the instant case which is quoted, stops with the word “compromised”, whereas the order, itself, continues with the words, “upon a covenant not to sue”, the language of that covenant not to sue must be examined for the purpose of ascertaining the nature and scope of that compromise and the purpose and intention
“It seems obvious that this writing contains no language which imports an intention on the part of the covenantors to discharge the cause of action or any part thereof, or which could be reasonably construed as effecting that result.”
Also, as was said by Joseph Higgins, S. J., in the case of Price-Bass Co., Inc. v. Owen, 24 Tenn. App. 474, 479, 146 S. W. (2d) 149, 152:
“It seems to us that the essentials of an accord and satisfaction are lacking. Byrd v. Crowder, 166 Tenn. 215, 60 S. W. (2d) 171. There is an increasing tendency in the courts to regard more closely the real intentions of the parties in such cases. See Note 104 A. L. R. p. 863. We observe in passing that much injustice has been wrought from the strict application of the doctrine of accord and satisfaction when applied to tort actions. ’ ’
Second, it is contended that the order in the Long case was not a consent order, whereas the order involved in the instant case was rendered by consent. We think this difference is immaterial. The material factor, as stated above, and as was held in the Long case is that the language, “dismissed with prejudice” must be regarded as surplusage; because, in the absence of a trial of the cause, courts of law in Tennessee have no authority to
“It is true that a consent decree is binding according to its terms upon those who consent, sign, or authorize it. But there is no evidence that plaintiffs signed, consented to, or authorized the entry of this order. Therefore, no verdict can be directed for defendant on this order as a consent decree.”
Also, appellee’s brief asserts a proposition of law in support of this same contention, and cites an authority for same the cases of Clinchfield Stone Co., Inc. v. Stone, 37 Tenn. App. 52, 254 S. W. (2d) 8, 12, 13, and Barettsville Bank and Trust Co. v. Bolton, 182 Tenn. 364, 373, 187 S. W. (2d) 306. The citation of the Clinchfield Stone Co. case is erroneously given as 37 Tenn. App. 52; the correct citation being 36 Tenn. App. 252. Both of these cases deal with chancery court decrees and would, therefore, constitute ample authority for the correctness of the language quoted above from Judge Felts’ opinion, if limited to the effect of consent decrees in a court of equity. If the language quoted from Judge Felts’ opinion be treated as applicable to an order entered in a court of law, it may be disregarded, as dictum. As pointed out above, it is our opinion that the determinative factor in the result reached in Judge Felts’ opinion turned on his ruling that courts of law in Tennessee, as distinguished from courts of equity, in the absence of a trial of the cause, are without authority to provide for dismissals with prejudice, which ruling was predicted on a careful analysis of the authorities there cited.
Fourth, it is the contention that the order in the Long case was merely an undertaking to carry out the covenant not to sue, whereas in the case at bar, “the covenant not to sue was not acceptable to the defendant, and the consent order as entered, which amounted to a complete settlement and release of Robert White, and was the real basis of the disposition of the litigation”, is, in our opinion, without merit. This contention is, we presume, predicated on the statement of Mr. James W. Yan Dyke which is copied into the record at page 39. As pointed out in another part of this opinion, however, there is nothing in the record to indicate that Mr. Yan Dyke was sworn as a witness or that he was undertaking to
“The rule that parole contemporaneous evidence is not admissable to alter or vary the terms of a valid written instrument has refrence only to the parties to the instrument. It cannot affect third parties who, if it were otherwise, might be prejudiced by things contained in the writing contrary to the truth, through carelessness, ignorance, or fraud. A third party is not precluded from proving the truth about a document however the truth may vary from the statements contained in said document.”
The same treatment must be accorded to the statement of Mr. Richard Dunlap, copied into the record at pp. 29-31. As this cause is to be remanded, we think this distinction should be made clear, as sworn testimony may then be offered on this point.
For the same reason, we now refer to the contention of appellant that the trial judge committed error in
“When the plea contains new matter by way of avoidance or setoff, the plaintiff shall reply thereto by demurrer or otherwise; and like proceedings may, if necessary, he continued by way of rejoinder or further pleading until issue is joined.”
We think the plaintiff was entitled to have the pleadings kept open until an issue was joined, and that such right must he afforded him when this cause is remanded.
The contention made by the appellant that, “The Court further erred in treating the parties cross-defendant as being before the court where the record discloses no process issued or was served on said parties by virtue of such cross-action”, is, we think, without merit. Re
For the reasons hereinabove set out, we think this cause must be reversed and remanded to the Circuit Court of Henry County for a new trial to be had in conformity with this opinion. The costs of the appeal are adjudged against the defendants, J. P. Lassiter, Jr. and William Kleeman, d/b/a Tennessee Absorbent Clay Company. The costs of the lower court may await the outcome of the litigation there.