*1 v. AUSTIN. McKENNA al. et No. 7979. Appeals Court

United States of Columbia. District 11, 1943. Feb.

Decided *2 in a collision in which Kenna she of taxicab passenger awas automobile operated by employee. The defendant’s

taxicab was by Independent owned Taxi Owners Association William Dris- and L. coll (herein designated together as Inde- pendent), operated by was their em- and ployee. claim on The husband’s account expenses hospital of medical loss and and of and consortium services. Defendant employee negligent. denied He al- leged that the taxicab was driven careless- ly, speed, excessive and was the at sole injuries. cause of the A further de- plaintiffs was that fense had made full ac- Independent by cord and satisfaction with a release which is claimed ac- to bar this paid compromise tion. The sum $3,000. pleadings this state of defendant summary judgment, which the moved upon Kaplowitz granted, relying Kay, App.D.C. 178, 70 F.2d 782. Reilly, Washington, D. F. of plaintiffs appeal. Mr. The James Leahy E. Messrs. William C., with whom margin.1 set forth in the release is The Sullivan, Washing- both of B. Eugene and ton, first to sue plaintiffs covenant appel- brief, for G, were on D. injuries of or Independent on account lants. from the resulting collision. losses instrument Goldstein, Washington, D. of any Mr. purports Irvin reserve then G, appellee. against defendant and his cause employee action of and recites “is intended STEPHENS, VINSON, and Before complete any and discharge of and is RUTLEDGE, Justices, Associate liability” Independent. all agree whether this question sole RUTLEDGE, Associate discharge Justice. the defendant. operated to ment damages per- generally prevailing on the more He stands rule,2 adopted suit was Plaintiffs’ Kay, by Helen H. Mc- incurred injuries sonal By brought, taken Presents instituted or These bo All Men “Know them, undersigned, undersigned or either consideration That Independent ($3,000.00) Taxi Owners said Thousand of Three the sum by Independ Driscoll, William L. Association and hand us Dollars Association, Inc., covenant. This instrument of this breach Owners Taxi ent Driscoll, as, body maintained and not be corporate, L. shall William acknowledged any hereby action receipt deemed cause whereof sealing undersigned may signing at and before hereby presents, Theodore Austin and Hezekiah Austin covenant do these complete Independent Taxi agree is intended to be and is a but with said discharge any Dris L. on behalf Association William Owners undersigned Independent com Taxi Asso of said Owners coll mence, any Driscoll, prosecute action ciation and William L. or either or maintain any otherwise, law, Inde or and all said both them claims or at pendent growing undersigned out Association of or Taxi Owners anywise of, reason aris connected with aforesaid col or L. Driscoll William * t- * of, lision.” out acciden certain Prosser, (1941) any injuries, losses, or See Torts § account of or on expenses 1108; (1933) 63; undersigned Harper, n. § Torts sustained Oooley, (4th ed.1932) them, any Torts cause other anywise (1927) growing 50 A.L.R. *3 produce injury, single the release of to applicable. say the rule is not Plaintiffs “ipso If discharges one others. facto” not a They urge is the instrument decision, this is the of the the amount effect liability but substantive release from received, damage relation the total its to They rely merely a not sue. covenant done, parties’ to retain intention such a upon authorities which hold rights against wrongdoers other discharge effect not covenant does immaterial, any be- as would difference co-tortfeasors,3 agreement and that an independent tortfeasors. tween Because rights against such which them is reserves say plaintiffs ambiguity its that de Plaintiffs also insist a covenant.4 in controlling case is not Independent not were fendant and one. this They tortfeasors, independently. acted but agree We defendant distinc- say evidence should have taken tion between a “release” a “covenant question a matter of this and decided entirely not sue” is artificial. When agreement. fact before it construed the one his enforcing surrenders means of only proper to be their view the effect against claim another and in does this set- apply the amount given the settlement is dispute litiga- tlement of tion, threatened pro the total dam received to reduce tanto effectually extinguishes he the under- ages. right. Thereafter, right lying all, if it is at in this case and facts remedy. right without We know plaintiff Kay v. are similar in that the highest authority that courts of passenger automobile both was a in an recognized “rights” the existence of such another, settled with which collided with particu- exceptional involving situations sued the wrongdoers, and then one remaining adjustment larly matters international showing the court one. On governmental and of credit.6 Absence of discharged. held the latter compulsion sovereign against means of scope of decision are The basis and may judicial assertion that make ambiguous. appear It does whether it, not against remedy, exist appropriate without other independent were in tortfeasors pos- sanction such cases opinion forth does not set ordinary volved. The sibly in run others. But for the point makes no agreement. private rights private litigation, terms between a hardly of a covenant not to independent distinction right remedy idea of without sue or Everyday between and working hypothesis. law is language There is predicated upon capacity tortfeasors. to do courts’ plaintiff disputes. indicate one something about When whol- paid as full satisfaction the ly the amount surrenders his recourse to courts adversary injury.5 matters, This could be construed as total pivoting he such insulates parties’ discharge upon effectually as when in his claim however, statements, many intention. Other he releases him. words Bargar, 3 5 plaintiff Lumber v. States Co. “It Pacific disclosed that as- Fager Cir., 335, 337; 1926, damages F.2d 9 1 serted a claim 1937, berg Co., cars, 50 Flour v. Phœnix Mills the insur- drivers both and that 1022; 227, carrying company Pa Ariz. 71 P.2d Missouri ance insurance 175, Hunt, 1936, Ark. cific R. 193 Co. v. Acrouri settled the claim McKay Bldg. 74; payment plaintiff 98 S.W.2d Pacific Acrouri 578, P. 156 Or. 68 $500 Materials satisfaction App.D.C. 178, 127. 2d F.2d the claim.” 63 70 4 Carey Bilby, 1904, Cir., Cf., quotation also, 8 129 F. from Gun- 203; D.C.D.Md.1927, Adour, Lee, 1876, 60, 67, 21 F.2d ther v. 45 Md. 24 Am. 861; Colby 858, Walker, dissenting opin- 1934, 504, N.H. 86 Dec. forth set 568, 774, 171 A. Black A.L.R. ion herein. Martin, 1930, 256, 88 Mont. P. 577; Prosser, (1941) Perry States, Torts § Cf. United 1109; Harper, (1933) 330, 360, Torts n. L.Ed. U.S. 55 S.Ct. (1927) 1335; Compania A.L.R. *4 expressly give way person settles, a clause lease reserving before who as the volume recurring pattern litigation Finally, or other indication of and it such show. present in- is legal theory, like intent.8 In this view in tort- giving anomalous merely advantage wholly strument would be a covenant feasors inconsistent liability. with the sue. nature of their adhering Other courts to the distinction principle liability It is a first permit such a clause to overcome refuse to several, many joint, in tort participate however escape express allow words of release and inflicting wrong only to cove- when the formula is limited they separately conjunct whether act inor the extent that nanting not to sue.9 To principle ion.11 With this the rule is at effect to clause they give decline inconsistency Their war. seem essential intention, they parties’ disregard prevalence rule, apparent. The entirely recog- refusing would a court however, shows that is not evident. agree- nize distinction. In this view the explicit recognition, There is occasional question would be a release ment now in Martin, 256, 1930, in Black v. 88 Mont. oper- discharge defendant and would 292 That gen P. 577.12 this not more ation of law. accounts, perhaps, eral re for the rule’s character well as determining tention and for the artificial method of es agreement, we are cape the effect of such an taken in the covenant not to sue. Es potency much unwilling proper, concede so cape notwithstanding par it is does not re- The matter total, forthright mere verbalism. tial. should conveyancing. quire the formalism of fashion. of “cove- “release” or Whether words of in con- foundations the rule are used, be the effect should nant” are By large they fusion. come down distinction, acceptance of the same. Wide reasons, separate fact are two substance, and want of notwithstanding its independent, applicable single and exception with a it intention applying the decisions gen- in different Yet situations. way control, point the to reexamina- they overlap erally con- are made rule and its foundations. tion of the appli- admixture and indiscriminate fused rule, except Neither sustains cation. incongruous. More results are The rule’s single instance to be noted. unjust they often than otherwise are Wrongdoers commonly stated, who do not make rea- unintended. As are; reparation making are dis- (1) single that there is share in sons but 1904, Cir., Bilby, g., among joint [Prosser, Carey 8 v. Torts 7 E. tortfeasors Co., 203; (1941) 1111; (1933) Harper, Shell Oil § F. Greenhalch v. 129 Torts 942; Cir., 1935, repudiated recently 303], v. 78 Cowles court. F.2d in this 10 Co., 1937, Capital Independent Radio, Inc., 22 Cal. Elevator Transit v. 711; 109, U.S.App.D.C. App.2d 187, Armieri St. P.2d F.2d 70 75 126 563, Hospital, 1936, Joseph’s Misc. 159 219. 11 483; Bossong 109; Prosser, (1941) 288 Torts 2 N.Y.S. Wil- Muhleman , 738, liston, 1938, App.Div. 3 N.Y.S.2d 254 Contracts § 338A. 12 Fair, 1937, Safety 181 Okl. Co. v. Louisville Gas & Cab Electric Co. v. Kingshigh Ky. 264, Beaucond, 1920, 725, Farrell 224 74 P.2d 188 S.W. way Bridge 1912, Co., Mo.App.1938, McCabe, 117 S.W. Blackmer 86 Page 85 cf. 2d 693. Vt. A. v. United Co., Cir., Fruit 3 F.2d supra. note See Anderson, 1921, Young 33 Idaho supra. note 2 See 1056; Murphy 196 P. generally prevailing Penniman, Under A. rule 105 Md. Am.St.Rep. contribution will not allowed sibly obligation, discharge where is made to turn single and a correlative action, though assumption prac- intention. tically this therefore one cause of law, persons presumption amounts to a several nexus attaches to unitary in effect merely single second reason becomes obligors; merely way another the first. injury, stating it is caused though and entire persons, whether number the acts of One wonder how the idea of conjunction. From separately or in acting liability law obtained a beachhead in the release of one is concluded the each it torts, more that consolidated discharges the others. obligor position. explanation may be in a conceptions liability transfer consequence follows from Logically this relations in property and contract. regard to wheth- the first reason without Joint obligations roots reparation have their in the old soil fact er the settlement Through them, of ancy estates. and ten to be so re- or is intended common, the common law broke the assumed It results from ceived. out from nexus its accustomed one-man mold.14 divisibility entirety bind- doing mysteries person. In it added the injured of sur vivorship seisin, achieving those of exist or van- must Being entire the *5 degrees unity in severalty varied severalty of entirety, notwithstanding its attach- and ish in unity. obligor. pro Whatever estates were one ment to more than Joint therefore, one, rights obligations, ductive of which and wheth- it as to extinguishes er bar, partook of the nature or other does of their source. settlement judgment, Survivorship gave unity right to and to so all. as to obligation for enforcement discharge. and first independently of the rea- Applied purposes For these all one were son, same second one would dictate was all. for the only when full satisfaction result pattern discharge sage This crux of set the for of injury is made. The transfer metaphysics be amount of estates to the whether law of ob- therefore paid adequate ligations independent property. in fact of the release is With Entirety emergence purpose. for this of contract came an accre- so entirety obligation, joint right of of injury, liability without of tion ideas of property. for the dis- from the no foundation law of would furnish charge, except release is made when the Entirety survivorship right re- of reparation. for total conceptions, main useful both as incidental however, usually ownership applied, property independent- it to of As ly however, Applied obligations, merely a confused of it. premise is reflec- second they proved sepa- entirety injury of inconvenient in the the first. From tion of applications. exist, Until time15 rate Mansfield’s entirety obligation assumed to of later, partners hindered or defeated being When this is the two identified. pleas nonjoinder, of done, creditors notwith- from assum- the same results not ing, end standing each was bound to his last contrary evident and often pay fact, farthing to the debt and be made that the claimant could incontrovertible joined if were accept do so all and served. as satisfac- settlement tended Judgment merged joint obligation injury into sev- entire than for the rather tion merely person liability. with other liability obligors. eral This So of the re- unity severalty of inquiry into the mixture There is no ade- leased.13 scope highly shield paid, holding of a convenient off quacy the amount damages, day judgment and pay- inconvenient injury and amount two, except pos- ment. between the the relation Maitland, History covenant Cf. 1 Pollock As when and (2d English explicit ed.1923) ; Haw reservation 407 contains an against parties Holdsworth, History English it. tortfeasors not Law very present, Smith, Legal this is not When fact Per sonality plaintiff brings in it Yale suit is L.J. 287-89. Schute, evidence that he did intend the self Rice v. Burr. (1770), advantage settlement to be full satisfaction for the it held could discharge nonjoinder partner only rule of taken and also he operated trap hy plea naming has as a for him. abatement the absent one. .664 means, part, liability F.2d from law found other common each courts for harriers.16 American can- avoid these contribution. Where contribution tortfeasors, early stat- not “joint” others.17 Then came the be between added they remained utory revolution.18 relieved further Joint “joint kind. premise The second

joint. obligation became therefore Joint departed supplies only rule, Unity obligation a basis for the but several.” legal does this support application, foundation when the is, its With went the facts scene. complete in that when the settlement is unitary discharge, contract indemnity. obligation. other forms of did take with But the foundation The difficulty how be is in it shall Vestigial superstructure. determined indemnity whether has Entirety remain. the old law corollaries vary been received. This cir will with requiring obligation was the basis for intentions, cumstances. Facts and rather and for uni- joinder secure enforcement presumptions than from the mere fact of tary discharge by judgment or release. settlement, damage should When control. remain obligations That to property is accu measurable fair compromise long after have be- racy and has reasonable relation strange is a survival come several for suit shown, may damage the amount enough in contract. personal conclusive. With other in juries readily value, It more Tortfeasors come less so in tort. reduced to cash severally court, difficulty Ordinarily many greater. into however together. not been brought complete the claimant in secure demnity all, Whether otherwise common law. one or less than unless concert, independently or in the the they nexus judgment proof. act others are Such *6 liability usually them and the settlement between would not be advanta injure geous person settling pre their acts combine to is not to the wrongdoer. The sumption is generally has not been entire. Each bound fact therefore injury. full separately to him and for the full discharge. satisfaction and joint discharge therefore rights has It The rule of would seem conclusive when true never foundation for tortfeasors those ex not released are reserved conception unitary obligation. plicitly appears intention otherwise keep these alive. Whether the set claims ordinarily Nor has it basis with is made tlement as full satis single injury. that in fact out the merely faction or the best obtainable as wrongdoers that no defense for others compromise liability for settler’s causing harm. Each is re aided in issue, ordinarily the crucial one of sponsible for whole. But that does not agreement’s If fact. however terms injured person may mean the have more doubt, for no room leave should be made' as a matter decision satisfaction, except Ipunitive full than law. right profit damages. He has no to make summary, from his harm because several share in support there is no Accordingly when one unitary discharge it. makes causing for rule of no reparation loss,'the for entirety others obligation among tion liability injured discharged from are person, single tortfeasors. There foundation in not, though under our recent rul complete injury, when indem ness of Radio, Inc., George’s Capital v. ing in nity been made. to the has We adhere 187, U.S.App.D.C. 75 repudiate Transit rule in that circumstance. We Outlawry 16 perhaps, was, (1927) having statutes, the earliest tions notes see escape. Lanning, 1875, 1057, 1079; (1930) U. Cf. Hall v. 91 50 A.L.R. A.L.R. 66 160, 161, 271; Blessing 206, 210; (1936) 23 L.Ed. S. A.L.R. 347, McLinden, (1940) N.J.L. 79 A. Eber Obligations L.R.A.,N.S., hart, 312. Joint Uniform Act: escape Existing non treated the return One on Effect Law Corn. equivalent est inventus ry. of outlaw- 640. L.Q. Tappan Bruen, 1809, 5 Mass. See Little, Warren, Corporate Olcott 9 N.H. also Advan Cf. Spitz, tages Incorporation (1929) 32 Am.Dec. Nathanson v. Without c. 151-233; pp. 141, Magruder, 19 R.I. 31 A. 690. Crane and Partnership Willison, (1st ed.1923) *7 Kay. pudiation of the v. rule of judgment however the exceeds When said, dis primary been a reason for settlement, As has operates twice the contribution stifling avoid its carding that rule is to in If settle- of the defendant. favor upon compromise and settlement.20 effects given finality, as think should ment is be we Independent’s compromise given must be done, possible there are at least two liability, all wheth effect to relieve fromit require the defend- One would solutions. ant to through plaintiff directly indirectly er to o'r pay full amount of contribution; persons in similar compro- paid in otherwise deducting the sum after compro likely deprive portion him of a position will not he make This would mise. contribution, amounting right of given if such mises. But the settlement of his necessary equalize payment his finality, the sum deprived would be defendant Modifying contribution, settling wrongdoer’s. right with his of in case the of right to this extent contribution judgment against him exceeds twice of penalty justified sort of might compromise agree be sum an —and causing the refusing settle and for party. ment to which he is not The al delay expense depriv the additional leged is between dilemma therefore might litigation. The effect finality necessary its involved ing the settlement of encourage settle- salutary further right be depriving of defendant his litigation. discourage ments urged that al It is contribution. of Beckwith, Co. v. .James, Express Contribu conditions. Adams modem Of. Prag 126 N.E. Among 100 Ohio St. A Joint Tortfeasors: tion Martin, 1930, 256, 292 88 Mont. Black v. 54 Harv.L.Rev. matic Criticism 577; Young J., 1169; Edgerton, dissenting Anderson, P. Radio, Capital Inc., Transit 196 P. A.L .R. Idaho Bridge page Mo. Kingshighway Co., Co., F.2d at 223. But the de Farrell George’s Radio, Inc., Capital S.W.2d App.1938, cision in compromise view us to the It Transit Co. commits debatable whether encouraged. may be be settlements desirable this situation under these arise. objection rights compromise principal finality to this solution and of in the facts the defendant would lie is not a contribution blend com plete compromise, harmony. others, party to the modification it, should not a required therefore limited extent control over be con- adversely party. it. If be affected these or another But what outweighing regarded preferable siderations are ever modification it is modification, favoring produced by an alterna- total loss those the old rule. by placing tive solution available majority are not unmindful person, plaintiff, injured the burden of stare it is force decisis. But up- the loss which otherwise would fall of on the defendant. not a It doctrine of mortmain. does law, This accom- could be growth exclude does it nor room for plished by fixing the credit at half require highly adherence to a the lat- amount of whenever which, inception, technical its was rule paid in than twice is more the sum ter elementary at war with nature of the settlement. ap to which was substantive in cutting This result down some- would plied; by lip maintained which has been what the total amount claimant’s service, chipped away its being while recovery. But reduction multiplying through substantive though effect accept- result his own act in direct distinctions; equally artificial half of the recoverable ing less than total which has found in our own hold law compro- damages in settlement with the single ambiguous highly and a de viewpoint wrongdoer. From mising cision. acceptance of such a loss would fractional Kaplowitz Kay apply To in the facts preferable incomparably to the entire apply this case would not be to stare wrongdoers who loss of decisis. Here the acted applica- which follows settle do not tion of the is dependently, press jointly; ex- v.; Kaplowitz Kay. rule rights against reservation logic understand difficult released; and, wrongdoers ly, consequent- partial scaling such a down characterizes affirmatively appears the set- recovery unjust and at the same tlement not made or as full approval to the gives total annihilation time of injury. satisfaction for the whole these None of brings recovery the rule that case things certainty can said with about. Kay. be true To assume discuss the of credit need not matters We of them were involved and there- further. we have contribution What and said is applies fore the case rule of here is purpose deciding not for the expansion doctrine, of its not a follow- presentation in advance questions these path. the beaten possible foreclosing other solutions.21 or of opinion But in our the rule had no sound and determination Final consideration *8 for basis been the whatever application, time when these issues be left for applied. which it facts to was We immediately. felt presented But we have anomalous, think is the reasons by argument refer to them forced to stated, unjust which is have been in its untenable, entirely the deci think that

we consequences, should be laid rest. and Radio, Inc., Capital sion Accordingly judgment is reversed serious, places if insur Co. riot Transit and cause is remanded to the District mountable, way repudi in the obstacles proceedings. further Court for cases, Kay. many Kaplowitz v. as ating shown, difficulty Reversed no and remanded. whatever has been dealing Practice, 21 sors: A methods of Uniform For various 1938 Wis.L. James, 391, 8; Larson, matter, Rev. see the A discussions Prob Among Joint Tortfeasors: lem in Contribution: The Tortfeasor Contribution Pragmatic Against Criticism 54 with an Individual A Harv. Defense (1941) Injured Repli 12; James, Party, n. 1940 Wis.L.Rev. L.Rev. Legis. (1941) (1936) 546, 702; Harv.L.Rev. Calif.L.Rev. cation Legis., Gregory, Among Legis. Contribution Joint Tort 1938 Wis.L.Rev. (1941) (1941) A Harv.L. Defense feasors: Col.L.Rev. n. 2-4; 1170, 1172-3, Gregory, Bohlen, ns. Re Rev. Book Review 45 Yale L. joinder J. Harv.L.Rev. Among Gregory, Contribution Tortfea- STEPHENS, summary (dissen judgment Associate was made Rule under Justice Procedure, ting). the Federal Rules of Civil 723c, following per- U.S.C.A. section in the decision of I am unable to concur mitting judgment such a to be entered summary- appeal from a this case. The favor of party against a whom a claim by judgment entered the District Court pleadings, depositions “if asserted and District of Col- the United States for file, together admissions on davits, with the affi- and appellants Helen H. against the umbia any, that, if except show as to the wife, McKenna, Royal husband T. damages, genuine amount of the no there is suit appellants filed plaintiffs below. fact, any issue as to material and that the appellee Thomas Austin moving party entitled to a from in- resulted damages alleged to have a matter law.” The motion asserted H. by appellant Helen juries received that result of the release there was a 1939, through the McKenna on March genuine any issue as to material This fact. opera- appellee in negligence stipulated appellants denied. But at collided a taxicab which tion of ap- copy that the a of which was document N.W., Streets, and S of 24th tersection pended summary judg- the motion Columbia, with another the District of by on December ment was executed them a McKenna was taxicab which Mrs. trial entered the sum- 1940.1 The damages in sum sought passenger. She mary judgment appellee’s in the favor and McKenna, upon allegations $50,000; Mr. appeal then taken. was that, injuries, her he result of as a appellants that contended hospital medical and required to incur been for the reason erroneous he had lost and that expenses for his wife pleadings in trial court under the serv- consortium and lose her and would genuine as to issues stated there were two $5,000. ices, damages in the sum asked put by appellants As material facts. appellants’ appellee’s answer to appellee these were: “Was the a tort- allegations complaint denied the thereof independent concurring feasor or alleged appellee’s that while the also former, ? If the was the instru- carefully operated being taxicab was upon summary judgment which was ment mentioned, place the one in time granted ‘release’ or ‘covenant a a riding was as a Mrs. McKenna sue’?” Independent Taxi passenger, by the owned urge L. if the appellants and one William first Association Owners should, operated hearing Driscoll, negligently them of evi- these issues case, account, and not reason in such man- that on that resolved dence part act failure on the that the torts involved were ner to show any damage concurring rather than appellee, independent collision and “release,” strictly By way of if joint, occurred. even Mrs. McKenna then the that, sue, appellee forth than a covenant not to set rather defense further action, appellee. as to the the commencement of he ineffective prior to even first They from the In- contend if the appellants had further resolved as to Association show dependent Taxi Owners issue should tort-feasor, Driscoll, appellee still L. in full accord and sat- William as to the question of fact would remain the cause of action claim isfaction parties instrument brought, which the intention suit was the sum *9 respect question with to releasing in the $3,000, in and consideration thereof had e., parties i. to whether the appellee, release which a bar to the executed merely to he it a covenant not to tended present suit. After the issues had been Independent Taxi Owners Associ- sue appellee filed joined the a motion for thus Driscoll with a and reservation of ation summary in his own favor and appellee, they or whether upon ground appellants against the that Independent release the Taxi intended referred disclosed release release and Association Driscoll and Owners thereby released joint well. appellee as copy as a of law. A matter appellee seen, however, was attached to if motion and It will that it set in the terms forth in law that the release of one was footnote 1 or of two tort-feasors, majority joint, opinion. The motion whether inde- for more or 1 Strictly, stipulation obviously intention ex- tion admitted but the original. copy of the attached to mo- execution

ecution admit pendent concurring, support the effect to in adjustment has of the rule an therefore, if, others, wrongdoer, with one release the a his release from law, executed all liability, discharges joint the instrument further matter of all the all, wrongdoers, though in the instant case is a release as even is a re- intention, operate merely express served implied, cannot covenant or As- Independent Taxi Owners look to sue the the other for fur- to sociation and Driscoll with right against ther damages reservation or In Ta- compensation.’ appellee, then there nana Trading Trad- Co. v. North American Co., be de- Cir., fact to & genuine issue of material Trans. 220 F. torts, it is said: ‘In termined in the case. cases of the in- jured person one, sue or number , Dis- Among outside authorities all, joint tort-feasors, less than may’ of the or there is divi- trict a distinct of Columbia all; and, sue where there is but one the release question whether sion injury, there can be satisiaction. one but. more tort-feasors one or of two injured person 11 the executes a release rule, declared all. The operates to release joint tort-feasors, operates to 0‘ire it cases answers majority of the others, bar an action for the The division question in the affirmative. reason that the cause action is satis- reasons excellently annotated is therefor laway, App.D.C. fied at longer and no exists.’ [63 by Cal- opinion well stated an pages 178, 179, pages 70 F.2d at 783]” Supreme J., speaking for the C. Kaplowitz v. The terms release in Martin, Montana, in Black Court of they Kay appear opinion, do not in the 292 P. Mont. appear in that do not in the record case. minor- case followed The court Hence it that the cannot be demonstrated modern view. ity or so-called precisely upon case is all fours with the a choice Columbia in the District of But instant case because in the latter the terms majority an in favor so-called express release show an of the of reservation Kaplow cient rule was made in the case of right against Austin. Moreover the Kay, 1934, App.D.C. 70 F.2d itz v. opinion Kaplowitz Kay contains not upon the faith that case 782. It was quotations the statements and forth set ¡case en that the trial court instant following quotation above but also the tlje summary appel judgment in tered the Lee, from Gunther v. Md. 24 Am. Kay ap favor. In lee’s Rep. plaintiff 504: “When ac- has plaintiff Kaplowitz peared cepted satisfaction for the injured in collision an automobile been him, done source whatever Kay the defendant one Acrouri and which were both come, equity he is so affected in far plaintiff assert involved. The conscience, good mit per- that the law will not ap were tort-feasors. ed again him to recover for the same instituting peared suit that before damages.” (Italics (63 supplied) App.D.C. Kay executed an instrument page 178, 782) at page 70 F.2d at But de- com releasing Acrouri and insurance spite this I think that it was made clear payment of pany in consideration of the Kay Kaplowitz v. that it the intention of given judgment was this account On $500. ancient, adopt this court to the so-called Kay upon for the defendant the trial majority, rule aas considered choice. theory that the release of Acrouri and the The decision stood unmodified in this company operated insurance as a matter jurisdiction since 1934 guide as a to liti- Kay appeal to release law also. On gants and to the trial courts on the sub- affirmed, saying: this was ject question. is settled law that: ‘The release “It Kay view of there could tort-feasor, satisfaction be no issue of material fact under the one, judgment against releases all aof ’ pleadings in the instant as to whether case * * * liability. 26 R.C.L. 766. parties intended the release to mere- McLaughlin Monaghan, case of In the ly Independent a covenant sue the not to *10 74, 79, 80, A. 138 it is said: Pa. ‘That 290 Taxi Association and Owners Driscoll of release one valid a right against ap- of a reservation as a release of all operates is undoubted.’ pellee, or whether re- intended to Savings Farmers’ Bank Al- . In v. . . Association Driscoll lease 144, 383, drich, 386, 153 133 Iowa N.W. also, adopt- under the rule appellee because weight authority ‘The is said: of it Kay by Kaplowitz adjustment v. “an country unquestionably ed seems to be this

66Ü persons more operate to the concurrently his release wrongdoer, with one injury another, discharges that in dam- liability, all all further of effect ages re- inseparable. sustained are rendered though a wrongdoers, even City Brown Cambridge, v. implied, of 3 Allen 474. intention, express served Railroad, See v. Feneff Boston & Maine to look to the other for fur- 575, ap- 196 (Italics Mass. 82 N.E. 705. damages compensation.” ther plication law, of rule where the this of supplied) release unconditional, is absolute material Also there could be issue effect, given must be its full cannot instant case pleadings in the fact under by parol be varied evidence introduced to In- negligence as to whether plaintiff show that the intended to reserve dependent Owners Association Taxi whatever she had this de- Au on and that of Driscoll the one hand Rubin, Supply fendant. Boston 214 Co. v. independent joint, or stin on the other was 217, 221, Mass. 101 . . . N.E. 133. [137 con- The concurring, in character. page N.E. supplied] 731]” [Italics that appellants the rule that tention Cherdak, To this effect also: Moss see v. plurality of tort- one of a 1935, 332, 333; 114 A. 176 Mason N.J.L. only applies feasors releases Lavine, 1931, Inc., 472, v. 302 Pa. 153 A. tort- distinguished from tort-feasors 754; 1927, Co., Coleman v. Refining Gulf concurring independent feasors whose 428, 2; Lindsay 172 Ark. 289 S.W.2d v. of, is complained wrong causes Co., 1922, Acme Cement Plaster 220 Mich. An examination not well founded. 367, 275; 190 N.W. Cormier v. Worcester subject cases this discloses on Ry. Co., 1919, 193, St. 234 Mass. Consol. authority is to weight overwhelming of. 549; Ry. 125 N.E. Abb v. Northern Pac. applies in- the ancient rule effect that Co., 1902, 428, 954, 28 Wash. 68 58 P. c., discriminately, types of tort- both i. 293, 864; Am.St.Rep. L.R.A. 92 Denver Vito, 1923, 243 In Muse De feasors. v. Sullivan, 1895, R. R. & G. 302, Co. v. 21 Colo. 384, 730, plaintiff was 137 N.E. Mass. 501; Tompkins Clay-Street 41 P. v. trap door located injured by falling a into Co., 163, 1884, Hill 66 4 P. R. Cal. occupied of a store in the sidewalk front Tort-feasors, Annotation: Release of One em- defendant’s McMaster. compare: 50 A.L.R. 1057. And removing load ployees, who were 1932, Hospital, Feinstone v. Allison 106 basement paper McMaster’s waste 302, 251; McCoy Fla. 143 So. v. Louis door, same left the trap through metal 333, ville R. 146 40 & N. Ala. they absented open unguarded while 1900, Hartigan Dickson, 81 So. v. get soda. drink of themselves to 284, appellants Minn. 83 N.W. 1091. The McMaster, notwith- plaintiff had released rely Husky Refining upon Company v. was, parol over standing which evidence Cir, Barnes, 1941, 715, 9 119 F.2d 134 A. objection, admitted at the defendant’s 1221, 1921, Young Anderson, L.R. v. 33 an intention trial show 522, 1056, Idaho 196 P. others to reserve action Husky and cases cited in the latter. Re responsible. might legally It was who fining Company supports v. Barnes prejudicial held that this was error. appellants’ Young contention. v. Ander Supreme of Massachusetts Court Judicial also, although son does it is weakened said: said fact the re involved was be construed hav lease clear “As a matter construction release, agreement an ing the effect of sue seal is a instrument under acknowledgment The and not satis merely to sue. and not a covenant not injuries received. The law a release faction which the attaches to effect Young wrongdoer cited Anderson are discharging cases Meilke, Pogel following: who release of other tort-feasors Wis. 927; City of Chicago N.W. injury. This rule jointly liable for the Babcock, 1892, 143 Ill. 32 N.E. nature of apparently is based Chandler, 1839, liability, N.H. one and indivisible. Snow their Beck, 1899, Miller v. discharged, Am.Dec. Accordingly, if one of them is 344; Murphy action, 79 N.W. Penni the cause there re- Iowa man, or satisfies 105 Md. A. an action foundation for mains no 583; Pittsburgh Rys. Am.St.Rep. Co. v. applies rule one. This Cir, 1906, torts, called, Chapman, Pogel 145 F. but also strictly so Meilke, Babcock, City Chicago v. negligent rases acts two where *11 case, They tion before point. not the court in the instant in v. Chandler Snow tort-feasors, has or tort-feasors decision no effect to overrule joint not involve modify George’s independent and con Radio case. wrongs whose were inconsistent Beck is curring. Miller v. I departure of think that although the itself. It holds Kaplowitz within from the doctrine case of the joint wrongdoers were not involved supportable. not doctrine of stare not one did of that therefore release decisis is It is founded not formalism. other, since the nevertheless release the past respect in exercise of a sensible entirety and in wrong divisible, an committed was legal judgment tainty upon the need of cer judgment satisfaction of legal The doctrine is relations. one of the against holding was a bar a suit legal of course subordinate to reason Penniman, Murphy the other. justice, require the perpetuation does not given di release to five pernicious error, that a interfere of and does not brought rectors—in a by growth suit a receiver proper with cases. law to enforce their and that of other departure jus precedent But to be corporation directors to a porate the for certain cor grounds. tified on substantial operate losses—did not past to release of be ought decisions a court others, was ground decided lightly swing ought overruled. Courts authority the receiver had no to ex Change from one doubtful rule to another. ecute the release per it was accord of change decision a result of of ingly Rys. Chap Pittsburgh void. saps Co. sonnel in the confidence courts involves man neither objective tort-feasors nor law as an The standard of decision.2 wrongs independ tort-feasors whose were Kaplowitz doctrine of the cannot case ent and concurring but tort-feasors whose be pernicious characterized as error. An negligence, if part there on was undivided court in that case amade choice one, separate of arid expressed distinct. between two conflicting views Columbia, decisions outside District Since at the time the trial of the in- choice not without basis in Kaplowitz Kay. stant case law in reflected the practical justice. reason If the law jurisdiction right- trial court Kaplowitz declared case tainted ly followed it. And since under the rule by “metaphysics estates”—as stated Kaplowitz could, Kay there as demon- by majority in the instant case—it strated, be no issue of fact material either virtue, nevertheless had the before deci appellee as whether the was a or case, George’s sion of the Radio of sim independent tort-feasor, concurring an plicity finality- and also of eliminated —-it to whether it was the intention litigation; and even the latter since case parties to the instrument in suit to Kaplowitz was decided the doctrine of the tort-feasors, .including all of the j litigation, following case reduces settle appellee, merely Independent tort-feasor, possible ment with one to the Driscoll, Taxi Owners Association and the single his fellow suit latter judgment should, summary my opinion, But, wrongdoer for contribution.3 under be affirmed. majority opinion, theory overruled, If I understand case the decision of the ma the fellow jority, repudiates may injured the rule of tort-feasor party, upon be sued and, Kay plurality that, contingent that release of one following of a secured, tort-feasors judgment releases all and holds amount injured party that if the riot suit received there the settler one, compensation exact contribution from the others to compelled arbitrary respond. reduction But standing injured party’s the defendant necessity recovery. decision sequelae leaves These Radio, George’s Inc., Capital problems give suggestions generalized rise which the Transit made, U.S.App.D.C. 126 F.2d view the 219, holding case, majority opinion there fore contribu Radio joint tort-feasors; shadow, tion between examples non-wilful and which concrete for, being question bring give of contribu- below into light. which I subject yet discussion of 2 For a of de been determined Dis- lias parture Am.Jur., from doctrines see 14 trict Columbia that a Courts, seq. buys peace et who without possible single compel 3 I refer to a him suit taken can contribu- that, point below, reason I out tion. *12 by where seeks overruling to accord him the suggests majority opinion Kaplowitz e., Kay, the against the to re- judgment i. party’s injured the tort-feasor, against the cover joint another than twice for less is joint tort-feasor who after the one settlement, one release of for less than full the the amount of compensation paid injury, for to the order settled, will thus he since has in make the himself loss due whole. The the sum the total more than half jured party great large recover will be in cases be allowed jured shall person, damage through wrongdoer injury serious and settle- the amount other from the joint This ment for a a payments. small sum with tort- necessary equalize their pay in feasor unable to more. if set- If the Thus as follows: can illustrated be $3,000 damages is for $3,000 and tlement but the with one for jured party settles adjudged $15,000, injured party an to be $5,000 against judgment a obtains $7,500 will receive tort-feasor, judgment from de- former then the joint other fendant, $10,500, total of get but will Thus latter is to recover from the $500. Moreover, $4,500. none of the payment of the balance accomplish full order to suggestion this majority equal payments assumes ‘injured person proper province is within the tort-feasors, and two one settlement joint Moreover, arbitrarily compel injured party an requisite. this law suits will accept injury less for his than re the court suggestion presupposes that the rule has, by definition, joint injury determined tort between quiring contribution damages. to be worth in pays I think one this doubt- operates favor of who feasors fully province within the legislature, of a judgment taken peace without for his much doubtfully more within that of a court. in Wis against him. It been decided has majority opinion upon Casualty attack (Western & consin that it does logic par- “the which characterizes such a v. Milwaukee General Const. Surety Co. scaling recovery unjust tial 491), down of the 302, 251 N.W. Wis. Kentucky gives approval at same time is a similar decision Burge, Corporation recovery total annihilation of the rule of (Consolidated Coach brings Ky. case S.W.2d [the case] however, rendered, 1086), under a statute about” distorts the foundation the dis- which, expressed restriction to not assert without sent. I do rule of accomplishes perfect jus- case judgment which has ob cases been tained, permits position enforcement of contribution is that My tice. New rules do. wrongdoers. departing In the among District a court is warranted in from statute, merely such precedent there is no and the doing Columbia where in swings imperfect rule to Radio case involved from one another more, imperfect judgment. equally, whom had suffered a if not both of one. is, therefore, here at doubt The law least that, although Tt noted ma- subject. ful on this jority opinion permits, in the event aof if, suggested judgment further that set- than after less twice amount tort-feasor, settlement, equalization payments the in- with one tlement settler, judgment who, jured party against obtains a of the instance under paid supposition, a sum than twice more other in more the amount this has one- than settlement, judgment injured per- such shall half of the total sum due equal son, position a credit to one-half there- taken that a reduced settlement can If treated as (and This be illustrated thus: the once made must be of. final price hardly any escape), one there is settlement tort- for- $3,000 judgment payments equalization feasor taken bids event $7,000, judgment the other a credit of of a for more than twice Thus, $3,500 be allowed. this results amount of settlement. illus- is to But above, $6,500 compensation injured party where the total of trated set- in a $3,000 judicially determined to have tles for tort-feasor $7,000. $5,000 damaged the in the sum of and obtains injured party deprived other, is to Thus the former recover from where, very advantage majority opinion latter But also illus- $500. erly tlement Since $5,000 recover more injury, will presumably judgment, injured party than full compensation $3,000 reducing be deducted received in set cannot prop same will be it been obtained to $2,000; necessary pay equalize whom $500 then to the payments settler. *13 price paid that, above, above, the fact overwhelming point as the trated the I out settlement $3,000 authority applies by weight is the tort-feasor $7,- the rule against Kaplowitz reflected as judgment other in the case taken judgment independent the $3,500, concurring well to with credit tort- and than more as feasors to The other debtor will thus have the tort-feasors. $500 equalize suggested recognize to be able distinction fails that settler but not to the operates, the settler. rule of Kaplowitz the case as payments the suit discharge it in terms therein, stated to suggest not opinion does majority joint wrongdoers adjustment after an fol- contribution for rule what with one and his release from further li- judgment is the event that lowed in the ability “even though is a there reserved settlement— the amount of than the less intention, express implied, or to look where impossible situation means bya the other wrongdoers to further for dam- pay high willing to settler is able a price ages compensation”; and I think it in the suit peace but a somewhat language opin- strains the regards against the other Kaplowitz ion of the case conclude that to slight. that situation damages as the appears it that settlement therefrom the theory the ma- presumably, under the case was that in full satisfaction for defendant opinion, the jority the distinguished whole from the as injured party nothing pay to the would whole claim made one tort- on ac- because credit be allowed to and his insurer.5 wipe out feasor count of the settlement example, Granting Kaplowitz that the amount of the the rule of —for $2,000 and accomplishing perfect the case falls short if the settlement were $1,000. justice, majority whether set it judgment for But aside as does complica- the settler circumstances could substitute these therefor under inequalities which, answer. tions and I exact contribution left without as above out, point attend suggestions made in opinion majority suggested in the It is majority opinion in view of decisis of stare that the doctrine case, is, my view, Radio case in the instant because involved jump, frying pan if not from the into the independently and con- acted wrongdoers fire, pan frying at least from one into an- was an ex- jointly, currently, I think other. enough the court should let well , proceed press reservation of alone, e., standing i. leave the rule released, wrongdoers not against the which, case as I have affirmatively appears that the settle- that it said, simplicity least the virtue of was not made or as full ment finality. In the words of Sir injury,'whereas whole John satisfaction Salmond: wrongdders were Kaplowitz case the in the was in satisfac- joint, tion, principle the settlement .It does “. . not follow that a reservation of there was no simply established once because should be reversed re-, proceed against one not right to it is not perfect and rational n suggested the first distinc- As to ought .leased. It is often more im- be. yet tion, be noted it does not portant that is- that law should certain than whether appear in the instant case ideally perfect. it should be These independently and con- requirements acted great two are to a extent currently, jointly; contention in other, this inconsistent with each and we must case there was an is- aspect of the is that often choose between them. Whenever a material fact to whether departed sue of from, certainty decision is appellee was a tort-feasor or an in- the law is ment, develop- sacrificed to its rational dependent concurring uncertainty tort-feasor. and the evils of the thus assuming, arguendo, wrong- may that the produced But outweigh very- far independ- instant did case act trifling doers benefit be derived from the cor- ently jointly, rather than concurrently doctrine. rection erroneous ignores I suggested distinction think unreversed, precedent, may while it stood opinion plaintiff case $500 in full satisfaction plaintiff thereupon states “It is disclosed claim. A release was ex- damages agaihst plaintiff claim for Acrouri, asserted a ecuted re- ' oars, drivers both company him insurance leasing company carrying suranee and all causes action aris- insurance (Italics Acrouri claim supplied) settled out of the collision.” payment Acrouri error, founded cases shall stand inviolate in numerous on have been counted none the less. error Valu- Communis definitely establishing the law. facit Eldon, jus(1). Lord ‘It said been dealt property able better/ it; important ‘that law should be certain than contracts in reliance on *14 it; every speculate upon improve judge strength of been made on on ments it.’ ”... basis great extent [Salmond have become to a Juris prudence 1930) (8th ed. ground of mutual expectation 194-5] impera- dealings. therefore I think the of the lower court Justice decision, though require tively should be affirmed. very repeal “It be remembered is to different or altera overruling precedent retro tion of a statute.” operation. respect spective In it is notes out of or of action (1930) (1936) aforesaid, collision A.L.R. 104 A.L connected with the presents may pleaded .R. A.L.R. as a these proceeding action other defense quoted appear put the discharges authorities matter joint tortfeasor release of one broadly, negli- more applicable in so that whenever insists it is the others and gence persons or more two combines present facts.

notes 95 A.L.R. Vas Naviera (1930) congado Christina, 66 A.L.R. S.

[1938] S. A.C. 485, (1939) A.L.R. 39 Col.L.Rev. 510. 1306, 1309. strength charged, from gains The distinction no while willing one concerning wrong what the conflict which exists guilty and more bears the whole Compromise stifled, first, by is a release is a covenant loss.10 viting and what and, regard to sue. the matter all wait Some courts for the others to settle second, gathered accept one of intention because claimants cannot lip Giving indemnity whole instrument.7 service less than full when rule, effects they doing discharges Many, avoid its know- all. when this, purpose rights against accept the ing to reserve less later find found, can as have trap. walked into a released The rule short- re- Specific changes generally overcharges be. the claimant terms

See Contracts on notes Cases jurisdic- pp. 311, 313, discussion of cases depart- ternative the settlement furnishes reason not not Whether or it in others. Kaplowitz Kay. deter- from the rule of is to he reparation to full amounts mined, fact of settle- merely from not do not find We the fancied obstacles for- particular ment, facts but bidding persuasive. problem is to tak- satisfaction Partial situation dictate. compromise blend themes and con- compromise en in tribution, maintaining integ- essential wrongdoers does some of one rity possible. of each as far as It is not present In the discharge the others. incapable of solution. We need not deter- Independent ex- case, agreement with decisively, mine matter now since nei- plaintiff’s pressly reserved the question ther the of credit nor one of con- therefore was He against the defendant. immediately tribution is before us. But discharged. not material whether It is refute the that these considera- contention a release or considered the instrument be Kap- tions dictate continued adherence to not to sue. covenant Kay, we may suggest lowitz obvious possible solutions. dis- is sufficient to What been said appeal. pose There however of this agree, We for the al reasons bearing the is- on which has other factor stated, ready final, settlement presented here and which sues now recovery both to forestall further cause, pro- if the further directly in the injured person preclude and to contri ceedings result long bution. So is for plaintiffs. This relates allowance less than twice the amount of the settle ment, Independent has credit amount difficulty. In that no real in which the manner the credit wrongdoer pay case the who settles will made. should be sum more than half total due claim By settling injured person ant. concede that credit Plaintiffs he of contri does surrender implicit this is allowed should be give should not bution settlement it has have said.19 However what we wrongdoer advantage. the other Conse Inc., Radio, suggested that been quently latter he should recover from the Co., permitting Capital contribu Transit equalize their necessary the amount payments. co-tortfeasors, raises dilemma among tion re respect militates in this