Albert Coldwell v. Philo S. Lang

• Decision Date: 02 May 1933
• Citation: 166 A. 10,105 Vt. 359
• Parties: ALBERT COLDWELL v. PHILO S. LANG
• Court: Vermont Supreme Court

166 A. 10

105 Vt. 359

ALBERT COLDWELL v. PHILO S. LANG

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Negligence---Effect of Release of One or More Joint Tort-feasors---What Constitute Joint Tort-feasors---Application of Rule as to Liability---Release.

1. Release, discharge, or satisfaction of one or more joint tort-feasors, is discharge of them all.

2. Whenever separate and independent acts or negligence of several persons, by concurrence, produce single and indivisible injury which would not have occurred without such concurrence, each is responsible for entire result, and they may be sued jointly or severally, at election of party injured.

3. Rule as to liability of joint tort-feasors held applicable where separate act of one of tort-feasors was intentional wrongful act and act of other was act of negligence, if such acts united in setting in operation single force that produced single and indivisible injury.

4. Where railroad company made full settlement with cattle buyer for loss of cattle which it was transporting for him, by reason of its negligence in sudden stopping of train, causing death of some of cattle and injuries and weakened vitality to others, whereby they contracted disease, held that such settlement operated to release seller from false warranty that animals had been immunized from such disease.

ACTION OF TORT. Plea, general issue, and special plea that plaintiff's cause of action was barred by a settlement between plaintiff and another joint tort-feasor. Trial by jury at the June Term, 1932, Caledonia County Sturtevant, J., presiding. Verdict for the plaintiff, and judgment thereon. The opinion states the case.

Judgment reversed, and judgment for the defendant to recover his costs.

Searles & Graves for the defendant.

Porter Witters & Longmoore for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

THOMPSON

This is an action of fraud in the sale of twenty-four cows and eleven calves by the defendant to the plaintiff on January 18, 1928, and for which the plaintiff paid $ 4,318. There was a trial by jury and a verdict and judgment for the plaintiff. The defendant excepted.

The sale was made at Lyndon, Vermont, where the defendant, a cattle buyer, lives. The plaintiff lives at Auburn Massachusetts, a few miles from the city of Worcester. The cows purchased by the plaintiff had recently freshened, or were to freshen within a few months. They were purchased for the purpose of producing a high quality of milk, and they were satisfactory for that purpose at the time of the sale.

The material allegations in the complaint are that the animals were to be shipped by rail from Lyndon to Worcester; that at that time there was prevalent in Vermont and Massachusetts a certain communicable and infectious disease called hemorrhagic septicaemia, commonly known as shipping fever, to which cows were particularly susceptible during transportation by rail; that such disease, when once contracted, unless checked, spread rapidly from one cow to another, and frequently resulted fatally, and, in some cases in abortion and sterility; that there was then known to the veterinary medical profession a treatment of immunization known as the three section agressin treatment, which, when administered to cows, prevented their contracting such disease; that the defendant, by falsely and fraudulently warranting the cows to have been immunized by such treatment and to be immune to the disease, sold the cows and calves to the plaintiff; that, in fact, at the time of said warranty and sale, the cows had not been immunized by such agressin treatment, and were not immune to the disease, all of which the defendant knew and of which the plaintiff was ignorant; that the plaintiff was induced by such false warranty to buy the cows and calves; that the animals were shipped by rail from Lyndon to Worcester on January 19, 1928; that on January 23, 1928, the cows, by reason of the lack of said immunization treatment, contracted hemorrhagic septicaemia which spread through their numbers, rendering them sick and unproductive and putting the plaintiff to great expense in the care and medical treatment of them; that, as a result of the disease, five of the cows aborted, six became sterile and could not be bred, two died, and the milk given by the surviving cows was unfit for use and was valueless; that the plaintiff lost great profits which otherwise he would have made, and he sustained great loss "in the depreciation and loss in value of the remaining cows due to such sickness, all occasioned as aforesaid."

That these allegations are supported by testimony, although it is contradicted, is not questioned by the defendant in this Court.

The defendant answered in bar of the plaintiff's action, that after the commission of the alleged grievances and wrongs in the declaration mentioned, and before the commencement of this suit, the Boston & Maine Railroad, hereafter called the railroad, paid, and the plaintiff accepted, $ 1,500 in full satisfaction and discharge of the said grievances and wrongs in the declaration mentioned, and on account of the damage to, and the death of, the identical cows purchased by the plaintiff, and that such settlement operates as a release of the defendant. The question is raised by appropriate exceptions to the overruling of the defendant's motions for a directed verdict and to set the verdict aside on the ground that such settlement with the railroad is a bar of this action.

The animals were shipped on a fast freight train from Lyndon on January 19, 1928. In the morning of January 20, which was a very cold day, the train, while traveling at a rapid rate of speed on the Boston & Maine Railroad, came to a sudden stop near Clinton Junction, about ten miles from Worcester, Massachusetts. The sudden stop caused a wooden partition in the car that separated the milch cows from the dry cows and the calves to be broken down, and the animals "were all piled up in one end of the car. " Two or three cows sustained broken ribs, four calves were killed, and all of the animals were bruised and some were otherwise injured.

The animals arrived at Worcester in the forenoon of January 20, and in the afternoon they were carried by truck to the plaintiff's farm in Auburn where they were placed in a cold cement barn. On January 24, some of the cows were sick with hemorrhagic septicaemia, and before February 10, 1928, all of the animals had contracted the disease. Between January 28 and February 10, inclusive, five cows and two calves died from the effects of injuries and the disease, two cows and two calves had been killed because of the disease, some of the cows aborted, and the milk from the surviving cows was not marketable.

When the cows were unloaded at Worcester, the plaintiff notified a representative of the railroad that he was making a claim against it for the damages he sustained by reason of the sudden stopping of the train.

On February 10, 1928, the plaintiff, assisted by Mr. Graves, who was attorney for the defendant, prepared a formal written claim against the railroad. Mr. Graves had nothing to do with the settlement of the claim. After its preparation, all the negotiations with the railroad which resulted in the settlement, were carried on by plaintiff's attorneys, Mirick, Blackmer, Rugg & Whitcomb of Worcester. This claim was presented to the railroad by plaintiff's attorneys on March 29, 1928.

The first paragraph reads as follows:

"To loss and damage on one car of cows and calves * * * * injured and subjected to exposure and loss of vitality with subsequent disease on account of extreme rough handling and negligent shaking up while in transit near Clinton Jct., as itemized below:"

Separate items follow for each of the animals that died or were killed. It is stated in each item that the animal died or was killed on account "of injuries, bruises and disease." There are three items for loss on cows on account "of injuries followed by abortion and disease," one item for loss on a cow on account of "rough handling and disease, " and one item for the amount paid for the services of a veterinary. One of the last items is as follows: "To loss on balance of carload, 14 cows and 11 calves, due to rough handling, disease, debilitated condition and loss of sale value, $ 700." The total amount of damages claimed by the plaintiff was $ 2,587.03. It appears from the record that the disease referred to in the claim was hemorrhagic septicaemia.

On April 18, 1928, the plaintiff's attorneys wrote to the railroad as follows:

"Relative to the claim of Albert C. Coldwell, we are authorized in his behalf to accept the sum of $ 1,500 as settlement in full for any liability that you may be under as a result of his cattle being damaged in shipment from Lyndonville, Vermont, to Worcester."

This letter contains the only statement of the terms of the settlement. On April 26, 1928, plaintiff's attorneys received a check for $ 1,500 from the railroad, which was accepted by the plaintiff.

The plaintiff concedes that the universal rule is that a release, discharge or satisfaction of one or more several joint tort-feasors, i.e., where there is concert of action and unity of purpose, is a discharge of them all, since a party injured by a wrong committed by several can have but one satisfaction for his injury, no more than one who has a debt against several can be entitled to be more than once paid. Sanderson v. Caldwell, 2 Aik. 195, 202; Brown v. Marsh, 7 Vt. 320, 327; Eastman v. Grant, 34 Vt. 387; Chamberlin v. Murphy, 41 Vt. 110, 118.

He contends, however, that the relation of joint tort-feasors did not exist between the defendant and the railroad; that his...