Balick v. Philadelphia Dairy Products Co., Inc.
| Decision Date | 29 March 1932 |
| Citation | 35 Del. 269,162 A. 776 |
| Court | Delaware Superior Court |
| Parties | NATHAN BALICK v. PHILADELPHIA DAIRY PRODUCTS COMPANY, INC., a corporation of the State of Pennsylvania. JENNIE BALICK v. PHILADELPHIA DAIRY PRODUCTS COMPANY, INC., a corporation of the State of Pennsylvania |
Superior Court for New Castle County, March Term, 1932.
Summons Cases, Nos. 154 and 155, January Term, 1931.
Separate actions on the case by Nathan Balick and Jennie Balick for negligence growing out of the collision of the car in which they were both riding with the rear end of a truck belonging to the defendant company and driven by its agent, on August 31, 1930, in Salem County, New Jersey.
The car in question belonged to Nathan Balick, one of the plaintiffs but was then being driven by his son, Jacob Balick, a boy of about eighteen years of age. It appeared from the evidence that the wife of Nathan Balick was then in Atlantic City and that the understanding with her was that her husband and son would bring her home that day; that the son, Jacob Balick liked to drive a car and usually did the driving when he and his father went any place together in the Balick car though the father could also operate such car; that when they got in the car of Nathan Balick on leaving their home in Wilmington without anything being said by either of them Jacob Balick the son, took the wheel and his father sat beside him. Jennie Balick, though a relative, was merely a passenger in such car and had nothing whatever to do with its operation.
The plaintiffs in both of the actions in question claimed that the collision was caused by the negligence of the driver of the defendant's truck in bringing it to a sudden stop without any warning to them and while directly in their path.
The defendant company denied that the truck was stopped but admitted that their driver had slackened its speed in order to avoid hitting a crippled chicken in the road. It also claimed, however, that before doing this the driver of the truck had given due notice of his intention to decrease his speed by holding out his hand; and that there was, therefore, not only no negligence on the part of that company, but that the collision in question was caused either wholly by the negligence of the driver of the Balick car, or, in part, by contributory negligence on his part.
On behalf of Nathan Balick the Court, among other things, was requested to instruct the jury that it was for them to determine whether Jacob Balick was acting as the agent of Nathan Balick in driving his car when the collision in question happened.
On behalf of Jennie Balick the Court was also requested, among other things, to instruct the jury that if the defendant company was negligent, and its negligence was the real or proximate cause of her injuries that, even if she had released Nathan Balick from any responsibility for such injuries, it was for them to determine whether Nathan Balick was also jointly negligent with that company in causing such injuries, and that if he was not a release to him would not affect her right of action against the defendant company. 50 A. L. R. 1093; 53 C. J. 1260; 14 L. R. A. (N. S.) 322, note.
Both of these requests were opposed by the attorney for that company.
The first request was opposed because the undisputed facts clearly showed that Jacob Balick, the son, was acting as the agent of his father, Nathan Balick, in driving the latter's car when the collision in question took place and that there was no issue on that question for the jury to determine.
In opposing the second request the defendant's attorney contended that as Jennie Balick had been paid $ 850.00 and, in consideration of that payment, had released any right of action that she had against Nathan Balick, on account of her alleged injuries, she could not contend that he did not participate in the alleged negligent act on which her action was based and that she had merely compelled him to buy peace from possible litigation. 50 A. L. R. 1096; 53 C. J. 1261; 14 L. R. A. (N. S.) 322, note.
Defendant's attorney further contended that if there was any negligence on which Jennie Balick's action could be based, as Nathan Balick must, therefore, be considered as a joint tort feasor with the defendant company a release to him wholly extinguished her claim against that company.
This was because the plaintiff in a tort action can have but one satisfaction for her injuries and that such a right of action, where based on the negligent act of more than one person, being joint as well as several, a full and unconditional release to or even the receipt of what purports to be full satisfaction from another person jointly liable with the person sued, necessarily operated as an extinguishment of the claim on which the plaintiff's right of action was based. Brown v. City of Cambridge, 3 Allen (85 Mass.) 474; Johnson v. Von Scholley, 218 Mass. 454, 106 N.E. 17; Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267; Cooley on Torts, § 83; Williston on Contracts, pages 628, 646, §§ 333, 338 b; Young v. Anderson, 33 Idaho 522, 196 P. 193, 50 A. L. R. 1057, etc.; 53 C. J. 1255.
Based on this contention, defendant's attorney requested the court to direct the jury to find a verdict for the defendant in the case in which Jennie Balick was the plaintiff.
The specific facts relied on to support this request will appear in the charge of the court.
Verdicts for the defendant in both actions.
Aaron Finger (of Richards, Layton and Finger) and W. Thomas Knowles for plaintiffs.
William S. Potter (of Ward and Gray) for defendant.
OPINION
HARRINGTON, J., in charging the jury, among other things, said:
The defendant has produced and the Court has admitted the following agreement signed by Jennie Balick and Simon Balick, who was apparently her husband:
Because of this agreement I have been requested to direct you to return a verdict for the defendant in the action of Jennie Balick against the defendant company.
This request is based on the contention that the paper in question is not a mere covenant in consideration of the payment to her of $ 850 never to sue Nathan Balick for any part that he may have had in causing her alleged injuries ( , but that such paper is a full and unconditional release to him, under seal, which necessarily operates as a discharge or extinguishment of her whole alleged right of action. If this paper were a release, that under the weight of authority it would have that effect, is now conceded ; and this is true notwithstanding the previous contention of Jennie Balick's attorneys that if the defendant company was negligent and if such negligence was the real or proximate cause of her injuries, that you should be directed to determine whether Nathan Balick was, also, jointly negligent with that company; and if he was not that you should be further directed that a release to him would not defeat Jennie Balick's right of action. [1]
It is apparent, however, that this rule has no application and a release will not extinguish the plaintiff's claim when it is perfectly clear that she had no possible rights whatever on which a claim against the person released could be based. Pickwick v. McCauliff, 193 Mass. 70, 78 N.E. 730, 8 Ann. Cas. 1041; Leddy v. Barney, 139 Mass. 394, 2 N.E. 107; Cormier v. Worcester Consol. St. R. Co., 234 Mass. 193, 125 N.E. 549.
The contention of the defendant company that the paper executed by Jennie Balick is a release is based on the insertion of this clause:
"And that this covenant...
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