Bartholomew v. McCartha

• Citation: 179 S.E.2d 912,255 S.C. 489
• Decision Date: 04 March 1971
• Docket Number: No. 19183,19183
• Court: South Carolina Supreme Court
• Parties: Dick BARTHOLOMEW, Respondent, v. Clyde H. McCARTHA, Donald Ray Shealy, individually and as partner in W. RayShealy and Son, a partnership, and W. Ray Shealy, individually and as partnerin W. Ray Shealy and Son, a partnership, of whom Donald Ray Shealy and W. RayShealy,individually and as partners, are, Appellants.

Page 912

179 S.E.2d 912

255 S.C. 489

Dick BARTHOLOMEW, Respondent, v. Clyde H. McCARTHA, Donald Ray Shealy, individually and as

partner in W. RayShealy and Son, a partnership, and W. Ray

Shealy, individually and as partnerin W. Ray Shealy and Son,

a partnership, of whom Donald Ray Shealy and W.

RayShealy,individually and as partners, are, Appellants.

No. 19183.

Supreme Court of South Carolina.

March 4, 1971.

Bernard Manning, Columbia, Robert D. Schumpert, of Pope & Schumpert, Newberry, for appellants.

E. Maxcy Stone, of Blease, Griffith, Stone & Hightower, Newberry, for respondent.

BRAILSFORD, Justice:

Plaintiff was injured in a collision between an automobile driven by Clyde H. McCartha and a truck driven by W. Ray Shealy. He sued both drivers, charging that the negligence of each contributed to his injury. Thereafter, he accepted $14,000.00 from McCartha, and, in consideration of this payment, executed and delivered unto him an instrument styled 'Covenant Not To Sue'. At the same time he took an order dismissing the complaint as to McCartha, 'with prejudice.' After negotiations for settlement of plaintiff's claim against the defendant Shealy had failed, this defendant sought dismissal of the action against him upon the ground that the legal effect of the release of his codefendant was to release him from liability for plaintiff's injuries. The foundation of this appeal from the circuit court's contrary conclusion is the common-law rule that the release of one of multiple joint tort-feasors, regardless of the intention of the parties, releases all. The only issue on this aspect of the appeal is whether by virtue of this rule the court should have dismissed the action. We have neither adopted nor repudiated the rule relied upon. However, the result which we now reach was clearly foreshadowed in Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969), when we said:

'They invoke the ancient common-law rule that, regardless of the intention of the parties, the release of one joint tort-feasor releases all.

'This technical, often criticized rule, which rests upon the fiction, among others, that a release implies a satisfaction, has been the subject of much litigation in other jurisdictions. Courts and legislatures have been astute to mitigate its impact. The decided trend of modern authority is that the release of one tort-feasor does not release others who wrongfully contributed to plaintiff's injuries unless this was the intention of the parties, or unless plaintiff has, in fact, received full compensation amounting to a satisfaction. Professor Prosser says that by virtue of statutes in some states and court decisions in others, this is the rule now actually applied in some two-thirds of the American jurisdictions. Prosser on Torts, 272 (3d ed.). See also Annotation, 73 A.L.R.2d 403.

'No case in which this court has...