Abb v. Northern P. Ry. Co.

• Decision Date: 25 April 1902
• Court: Washington Supreme Court
• Parties: ABB v. NORTHERN PAC. RY. CO.

68 P. 954

28 Wash. 428

ABB v. NORTHERN PAC. RY. CO.

Supreme Court of Washington

April 25, 1902

Appeal from superior court, King county; O. Jacobs, Judge.

Action by Frank Abb against the Northern Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

B. S Grosscup and Struve, Allen, Hughes & McMicken, for appellant.

Hastings & Stedmand, for respondent.

HADLEY J.

This is an action to recover for personal injuries received by respondent in a collision which occurred in the city of Seattle between an outgoing passenger train of appellant and a street car of the Grant Street Electric Railway Company at a crossing of the two railways. Respondent was a passenger upon the street car, and alleges that his injuries were occasioned by the joint carelessness of the persons operating the street car and those operating the railway train. The action was brought against the appellant only. A trial was had before a jury, resulting in a verdict for respondent in the sum of $1,000. A motion for new trial interposed by appellant was denied, and judgment entered against appellant for $1,000 and costs. From said judgment this appeal was taken.

The answer affirmatively alleged that after the collision aforesaid occurred, for and in consideration of the sum of $300, then paid to him by the said Grant Street Electric Railway Company, and a pass delivered to him over its street railway for the period of one year, the respondent did then and there agree with the said street railway company to release, and did fully, finally, and forever release and discharge, the said street railway company and the appellant from any and all damage and claim of damage done to his person or property, and from any and all claims whatsoever growing out of said collision; which said agreement was in words and figures as follows, to wit: 'For and in consideration of the sum of three hundred dollars ($300.00) in hand paid, and a pass over the Grant Street Electric Railway for the period of one year, I, the undersigned, do hereby release and discharge the Grant Street Electric Railway Company from any and all damages done to me in my person or property in the late collision between a car of the Grant Street Electric Railway Company and a train of the Northern Pacific Railroad Company. This agreement is not to be taken or considered as a release of any damages which the undersigned may have against the Northern Pacific Railroad Company.' It is further alleged that by reason of said agreement the appellant is fully released and discharged from all liability in the premises, and that respondent is estopped from maintaining this action. The reply admits the receipt by respondent of $300 and a pass for one year from the street railway company, and also admits that respondent executed the release set out in the answer and delivered the same to said street railway company alleges that said payment and said pass were given to respondent in partial satisfaction, only, of his damages suffered in said collision, as was understood by said street railway company and respondent at the time and that it was not the intention on the part of either respondent or said street railway company to in any manner release or discharge respondent's cause of action or to surrender any claim for damages that he might have against appellant. Under the issue made by the pleadings concerning said payment and release, we are called upon to determine the effect thereof upon the status of appellant in this action. The trial court construed the written release in its legal effect to be a mere covenant on the part of respondent not to sue the street railway company in consideration of the payment of $300 and the issuance to him of a pass for one year, and instructed the jury that it was not a full bar to the action against appellant, but that they should deduct the amount so paid from what they should find the whole damage to be, if they found such whole damage to be greater than the amount paid, and should return a verdict for the balance. It is evident from the pleadings that but one wrong was committed, and that was the joint wrong of the street railway company and the appellant. The two companies jointly committed the tort from which the injuries arose, and there can be no question but that said release and payment fully released and discharged the street railway company, one of the joint wrongdoers, from responding to any further demand for damages. In whatever light the release be viewed, whether as a mere covenant not to sue the street railway company, or as an absolute discharge thereof, there can be no doubt that it could be pleaded in full bar of any action against the street railway company for further damages. It is, and has long been, a generally recognized rule that there is no line of separation between the liability of joint tort feasors. The tort is a thing integral and indivisible, and any claim for injuries arising therefrom runs through and embraces every part of the tort. The liability of one cannot be carried into any portion of the joint tort that is not followed by an equal liability of the other tort feasors. Each is liable for the whole, and the injured party may pursue one separately, or he may pursue all jointly, or any number jointly less than the whole number. This principle is discussed in Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649, and Birkel v. Chandler (Wash.) 66 P. 406. But while they may be thus pursued separately or jointly, yet there can be but one satisfaction. 'In a joint trespass or tort each is considered as sanctioning the acts of all the others, thereby making them his own. Each is therefore liable for the whole damage, as occasioned by himself, and it may be recovered by a suit against him alone. There can be no separate estimate of the injury committed by each, and a recovery accordingly. The difficulty in maintaining the suit against the others is that the law considers that the one who has paid for the injury occasioned by him, and has been discharged. committed the whole trespass and occasioned the whole injury, and that he has therefore satisfied the plaintiff for whole injury which he received.' Gilpatrick v. Hunter (Me.) 71 Am. Dec. 370, 371. In Seither v. Traction Co. (Pa.) 17 A. 338, 4 L. R. A. 54, 11 Am. St. Rep. 905, one who was injured by a collision between two cars of different companies accepted a certain sum in full of all claim for the injuries against one of the companies, and executed a release in which he agreed to prosecute the other company, and reimburse the first out of the amount recovered. The release was held to be a bar to an action for the same injuries against the other company. The opinion says: 'The court below held very properly that this agreement and release was a bar to a recovery in this action. The plaintiff had received one satisfaction. He was not entitled to a second.' In Turner v. Hitchcock, 20 Iowa, 310, 317, 318, Mr. Justice Dillon, in a well-considered opinion, says upon this subject: 'It is also an undisputed principle of the common law that, as a general rule, the release of one joint wrongdoer releases all. The rule and the reason for it are thus stated in a work of high authority: 'If divers commit a trespass, though this be joint or several, at the election of him to whom the wrong is done, yet if he releases to one of them, all are discharged, because his own deed shall be taken most strongly against himself.' Also (which seems to be the better reason) such release is a satisfaction in law which is equal to a satisfaction in fact. Bacon's Abr. tit. 'Release,' B. * * * 'The reason of the rule' that the release of one is the release of all 'seems,' says Bronson, J., with his accustomed clearness and force ([Bronson v. Fitzhugh] 1 Hill, 185, supra), 'to be that the release being taken most strongly against the releasor is conclusive evidence that he has been satisfied for the wrong; and after satisfaction, although it moved from only one of the tort feasors, no foundation remains for an action against any one. A sufficient atonement having been made for the trespass, the whole matter is at an end. It is as though the wrong had never been done.'' In Railroad Co. v. Sullivan (Colo. Sup.) 41 P. 501, it was held that, where two railroad companies were jointly liable for injury to a person, a release by such person of his right of action againt one of the companies also released the other. The following cases are also directly to the same point, and strongly support the same rule: Tompkins v. Railroad Co., 66 Cal. 143, 4 P. 1165; Goss v. Ellison, 136 Mass. 503; Donaldson v. Carmichael (Ga.) 29 S.E. 135.

It is urged that the release in the case at bar amounts to no more than an acknowledgment of partial satisfaction of...