Boucher v. Thomsen

• Decision Date: 11 September 1950
• Docket Number: No. 34,34
• Citation: Boucher v. Thomsen, 328 Mich. 312, 43 N.W.2d 866, 20 A.L.R.2d 1038 (Mich. 1950)
• Parties: , 20 A.L.R.2d 1038 BOUCHER v. THOMSEN et al.
• Court: Michigan Supreme Court

Page 866

43 N.W.2d 866

328 Mich. 312, 20 A.L.R.2d 1038

BOUCHER v. THOMSEN et al.

No. 34.

Supreme Court of Michigan.

Sept. 11, 1950.

Doyle & Doyle, Menominee, for appellant.

Barstow & Barstow and John J. O'Hara, all of Menominee, for appellee, Ralph Franck.

Before the Entire Bench.

CARR, Justice.

Plaintiff administratrix brought suit in circuit court against defendants Thomsen, Plemel and Franck, to recover damages for the alleged negligent killing of her decedent, Ross Boucher. The declaration filed in the cause alleges that on the 24th of June, 1947, defendant Frank was the owner of an automobile which he delivered to defendant Thomsen for servicing and repairing. It was further averred that the rendition of the services required that the automobile be tested by operating it on a public highway or testing ground, that defendant Plemel was an employee of Thomsen, that he operated the vehicle on a public street in the city of Menominee with the knowledge and consent of defendant Franck, and that, while so doing, he was guilty of negligence resulting in the death of Mr. Boucher. Defendant Franck filed an answer to the declaration, denying specifically that servicing and repairing of his car required that it be tested on a public highway or testing ground, and further denying that at the time of the accident the automobile was being operated with his knowledge and consent.

While the case was pending, plaintiff, with the approval of the probate court of the county, gave to Thomsen and Plemel and the Fidelity and Casualty Company of New York, Thomsen's insurer, a covenant not to sue. The instrument in question reads as follows:

'In Consideration of the sum of Nine Hundred ($900.00) to be paid by Volmer Thomsen to Pearl Boucher, General Administratrix of the Estate of Ross Boucher, deceased, and in consideration of the sum of Five Thousand ($5,000.00) Dollars to be paid to said Administratrix by Fidelity and Casualty Company of New York, a corporation, insurers of said Volmer Thomsen, said Administratrix, pursuant to the approval of the Parobate Court for the County of Menominee, Michigan, given in an Order made and entered on the 16th day of August, A.D. 1948, in the Matter of the Estate of Ross Boucher, deceased, hereby covenants with said Franklin Plemel and Volmer Thomsen and Fidelity and Casualty Company of New York, a corporation, that said Administratrix will not further prosecute against said Franklin Plemel or said Volmer Thomsen or said Fidelity and Casualty Company of New York, a corporation, that action pending in the Circuit Court for the County of Menominee, Michigan, wherein said Administratrix is plaintiff and said Volmer Thomsen, Franklin Plemel and Ralph Franck are defendants, which action has been brought by said Administratrix to recover damages in respect of the wrongful death of said Ross Boucher, who died at Menominee, Michigan the 24th day of June, 1947; and in consideration of said payments as aforesaid, said Administratrix further covenants with said Franklin Plemel and said Volmer Thomsen and said Fidelity and Casualty Company of New York, a corporation, that said Administratrix will never sue either said Franklin Plemel or said Volmer Thomsen or said Fidelity and Casualty Company of New York, a corporation, to recover damages occasioned by the wrongful death of said Ross Boucher.

'And it is expressly understood between said Administratrix and said Franklin Plemel and said Volmer Thomsen and said Fidelity and Casualty Company of New York, a corporation, that said Administratrix, notwithstanding this covenant not to sue either said Franklin Plemel or Volmer Thomsen or said Fidelity and Casualty Company of New York, a corporation, reserves wholly and unimpaired her cause of action against the said Ralph Franck.

'Dated at Menominee, Michigan, this 23rd day of August, A. D., 1948.'

Following the execution of the covenant, an order was entered in the case dismissing it as to defendants Thomsen and Plemel, with prejudice and without costs, pursuant to a stipulation between the parties. Thereupon defendant Franck moved to dismiss the action as to him on the ground that the agreement between plaintiff and the other defendants in the case had released him. In support of such claim it was alleged in the motion that in the event of liability on his part to respond in damages to the plaintiff, defendants Thomsen and Plemel would be liable to him. The motion further asked, in event the plaintiff's cause of action was not dismissed, that Thomsen and Plemel be continued as defendants in the cause and held bound by any judgment rendered therein. On the same date that the motion was filed notice to defend the action, previously served by Franck on Thomsen and Plemel, was also filed. To such notice an answer was filed in which Thomsen and Plemel denied any responsibility on their part to defend the action against Franck, and further specifically advising him of the covenant not to sue.

The motion to dismiss the declaration as to defendant Franck was subsequently submitted and granted, it being the opinion of the trial court that under the factual situation the agreement between the plaintiff and defendants Thomsen and Plemel released Franck from liability. The order entered was, however, without prejudice to the right of the plaintiff to proceed against the defendants if she sought and obtained a rescission of the agreement. Thereafter plaintiff filed in the cause an instrument reciting that, if she had any right to rescind the covenant not to sue, she elected not to do so. Her appeal from the order entered rests on the claim that the trial court erroneously construed the agreement above set forth.

The liability of defendant Franck in the case, if there is such, does not rest on any claim that he was himself guilty of negligence resulting in the death of Mr. Boucher, but arises solely by virtue of the statute. ¹ He is not a joint tort-feasor with Thomsen and Plemel. Geib v. Slater, 320 Mich. 316, 31 N.W.2d 65. The provisions of P.A.1941, No. 303, § 2, C.L.2948, § 691.562, Stat.Ann. 1949 Cum.Supp. § 27.1683(2), permitting a party plaintiff to release one joint tort-feasor without impairing the right to proceed against others, is not involved.

The undertaking in the instant case does not purport to be a release of plaintiff's alleged cause of action as to Thomsen and Plemel. It is in terms merely an undertaking that for the consideration named the plaintiff will not sue any of the covenantees to recover damages resulting from the death of her decedent. The right to proceed against defendant Franck is expressly reserved. It is settled by prior decisions of this court, in cases involving joint tort-feasors, that an instrument in this form is not a bar to the prosecution of an action against tort-feasors other than the covenantee or covenantees. Cook v. City Transport Corp., 272 Mich. 91, 261 N.W. 257; Garstka v. Republic Steel Corp., 294 Mich. 387, 293 N.W. 691; Larabell v. Schuknecht, 308 Mich. 419, 14 N.W.2d 50. In Kallas v. Lincoln Mutual Casualty Co., 309 Mich. 626, 16 N.W.2d 99, the right of an insurer of one of the alleged joint tort-feasors to settle its limited liability to the party asserting the cause of action, and to accept a covenant not to sue, was recognized. It is the position of the defendant in the instant case, however, that if liability is established against him by the plaintiff, he has the right to insist on reimbursement from the other defendants, and that in effect his status is that of a surety. In support of the claim attention is called to the language of this court in Village of Portland v. Citizens Telephone Co., 206 Mcih. 632, 173 N.W. 382, and to Karcher v. Burbank, 303 Mass. 303, 21 N.E.2d 542, 124 A.L.R. 1292. See also Geib v. Slater, supra. Assuming the correctness of defendant's position as to the nature of his liability, if any, the question presented is whether plaintiff's covenant not to sue Thomsen, Plemel, or the insurance company, constitutes, because of the basis for the liability asserted against defendant Franck, a release as to him.

On behalf of defendant Franck it is argued that the entire burden of defending the action should not be cast on him. No claim is made, however, that there is any legal method by which he can force Thomsen and Plemel to actually assume the defense. The same situation would obtain if they had remained as parties defendant. Obviously they might have permitted themselves to be defaulted. The suggestion that the covenant not to sue, if sustained, results in a legal injustice to defendant Franck is without merit. Neither may it be said, in view of the language of the covenant, that the parties thereto contemplated that Thomsen and Plemel would necessarily be released from further liability with respect to the subject matter. The instrument did not provide for such a release. It clearly appears that it is merely an undertaking that plaintiff will not sue the covenantees. She did not, either directly or indirectly, covenant against their possible liability to defe...