Carpenter v. W. H. McElwain Co.

• Decision Date: 01 February 1916
• Citation: 97 A. 560,78 N.H. 118
• Parties: CARPENTER v. W. H. McELWAIN CO.
• Court: New Hampshire Supreme Court

97 A. 560

78 N.H. 118

CARPENTER

v. W. H. McELWAIN CO.

Supreme Court of New Hampshire. Hillsborough.

Feb. 1, 1916.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Action by Samuel Carpenter against W. H. McElwain Company. Transferred from superior court for determination of effect of release. Judgment ordered for the defendant.

Case for personal injuries. The declaration alleges that on March 28, 1913, the plaintiff was employed as a teamster by one Totman, who let his teams to the defendant for hire; that the plaintiff under the arrangement was driving one of Totman's teams in performing the work of the defendant, under the direction and control of the latter; that while so engaged it became necessary to cross a ditch by backing his horses and a dray over a bridge which, through the negligence of the defendant, was defective and unsuitable for the use he was ordered to make of it by the defendant, and as a consequence he was injured. After the accident Totman made a settlement with the plaintiff, who gave him a release of all his claims on account of the accident. The release is as follows:

"Settlement in Full for Personal Injury. I, Samuel Carpenter, hereby acknowledge payment to me in hand this day by E. H. Totman of the sum of forty dollars, in full settlement of all my claims and causes of action which I now have or may hereafter have against the said E. H. Totman on account of an accident which occurred to me on or about March 28, 1913, causing injury to me. It is expressly understood and agreed that the said sum is the sole consideration of this release and is in full settlement of all my claims and causes of notion. There are no agreements or understandings between the parties other than expressed and embodied herein.

"In testimony whereof I have hereunto set my hand and seal this 24th day of April, 1913, at Manchester, N. H. Samuel Carpenter. [Seal.]

"The foregoing agreement was read by Samuel Carpenter, who said that he understood it; that he knew that in signing it he was signing away his right to any further claim for injuries therein referred to; that he was satisfied with the settlement; and that he signed it of his own free will. E. H. Totman. C. A. Coughlin."

The question is transferred from the superior court by Branch, J., whether the release is a bar to this action. If it is, there is to be judgment for the defendant; otherwise the case is to stand for trial.

Thorp & Abbott, of Manchester, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester, for defendant.

WALKER, J. While there is much disagreement in the cases as to the effect of a release of one wrongdoer upon the liability of another who participated in the wrong, the principle that a technical release of one joint tortfeasor, which is presumed to be upon a consideration amounting to compensation for the injury, is a bar to a suit against the other for the same wrong, is generally recognized and approved. But like all general principles of legal right, it has been modified and limited in its application to specific cases and many exceptions have been introduced, which have caused no little apparent conflict of authority. This has arisen largely from different views of what is meant by compensation, for it is usually conceded that one who has suffered a single personal injury caused by the concurring negligence of two or more persons is not entitled to more than one compensation. He is not entitled to full damages from each of several wrongdoers for the same injury. In some cases it is substantially held that if the party released is not shown to be in fact responsible for the injury a payment of money by him to the injured party cannot be deemed a compensation, although the latter executed a release to the former upon the distinct understanding that there was a liability, and that the money paid was regartled as full compensation. This result is sought to be justified upon the ground that the release was not in fact a release, but a. mere covenant not to sue the releasee, while the money paid was a mere gratuity. Wardell v. McConnell, 25 Neb. 558, 41 N. W. 548; Thomas v. Railroad, 194 Pa. 511, 45 Atl. 344; Atlantic Dock Co. v. New York, 53 N. Y. 64; Kentucky, etc., Bridge Co. v. Hall, 125 Ind. 220, 25 N. E. 219; Pickwick v. McCauliff, 193 Mass. 70, 78 N. E. 730, 8 Ann. Cas. 1041; Dufur v. Railroad, 75 Vt. 165, 53 Atl. 1068; Missouri, etc., Railway v. McWherter, 59 Kan. 345, 53 Pac. 135.

Other cases hold that it is unimportant whether the releasee is in fact a joint tortfeasor or not; if a claim of liability for the wrong is made against him by the injured party and compensation therefor is made by the former, no further action for the tort is maintainable against others who might have been liable. The plaintiff, it is said, is estopped, after having received compensation from one whom he claimed to be liable for the tort, to seek additional damages from others. Tompkins v. Railroad, 66 Cal. 163, 4 Pac. 1165; Brewer v. Casey, 196 Mass. 384, 82 N. E. 45; Snyder v. Telephone Co., 135 Iowa, 215, 112 N. W. 776, 14 L. R. A. (N. S.) 321; Hartigan v. Dickson, 81 Minn. 284, 83 N. W. 1091; Leddy v. Barney, 139 Mass. 394, 2 N. E. 107; State v. Railways, 126 Md. 300, 93 Atl. 43; Cleveland, etc., Ry. Co. v. Hilligoss, 171 Ind. 417, 86 N. E. 485, 131 Am. St. Rep. 258; Hubbard v. Railroad, 173 Mo. 249, 72 S. W. 1073; Lovejoy v. Murray, 3 Wall. 1, 17, 18 L. Ed. 129; Denver, etc., Railroad v. Sullivan, 21 Colo. 302, 41 Pac. 501; Casey v. Telephone Co., 155 App. Div. 66, 139 N. Y. Supp. 579.

When there is a statement in the release in the nature of a reservation of the right to sue or to hold the other wrongdoers responsible for the tort, it has been held that it does not constitute a bar to a suit against them, for the reason that the compensation received was not intended to cover all the damages suffered by the plaintiff. Gilbert v. Finch, 173 N. Y. 455, 66 N. E. 133, 61 L. R. A. 807, 93 Am. St Rep. 623. Upon this theory the intention of the parties, ascertained from the language of the written contract, is of controlling importance and limits the effect of what might, upon a strict construction, be held to be a full and complete release of the cause of action. The limitation or reservation of the right to look to others for further damages is strong evidence that the damages received were not regarded as full compensation for the injury inflicted. This view is also supported by Kropidlowski v. Leather Co., 149 Wis. 421, 135 N. W. 839, 39 L. R. A. (N. S.) 509; Wilson v. Reed, 3 Johns. (N. Y.) 175; Missouri, etc., Railway v. McWherter, 59 Kan. 345, 53 Pac. 135; City of Louisville v. Nicholls, 158 Ky. 516, 165 S. W. 660; Ellis v. Esson, 50 Wis. 138, 6 N. W. 518, 36 Am. Rep. 830; Hirschfield v. Alsberg, 47 Misc. Rep. 141, 93 N. Y. Supp. 617.

On the other hand some cases hold that as the reservation is inconsistent with the grant in a technical release it must be rejected as of no legal effect. Ayer v. Ashmead, 31 Conn. 447, 83 Am. Dec. 154; Gunther v. Lee, 45 Md. 60, 24 Am. Rep. 504; Seither v. Traction Co., 125 Pa. 397, 17 Atl. 338, 4 L. R. A. 54, 11 Am. St. Rep. 905; McBride v. Scott, 132 Mich. 176, 93 N. W. 243, 61 L. R. A. 445, 102 Am. St. Rep. 416, 1 Ann. Cas. 61; 1 Cooley, Torts (3d Ed.) 234, 235.

Whether, if Totman, to whom the release was given, was a stranger who had no connect ion with the tort, his discharge from liability would constitute a defense in this action in accordance with many of the authorities, is an interesting and perhaps difficult question, which it is not necessary to decide; for it is reasonably plain that under the facts alleged in the declaration and those stated in the contract of settlement, the plaintiff claimed that Totman was liable in an action of negligence for the same injury for which he now seeks to charge the defendant. He was not deemed a stranger, but a participant, in the wrong. As the case is presented it must be assumed that the facts stated in the declaration and in the contract of release are true. Whether Totman was actually guilty of negligence contributing to the plaintiff's injuries cannot be known in the absence of a trial of that issue.

The case must be considered substantially as it would be upon a demurrer to a plea setting up the release as a defense. It does not appear either directly or by reasonable inference that as a matter of law his claim was unfounded or unreasonable, or that Totman was not liable jointly with the defendant for the injury complained of. Totman furnished him with the horses, harnesses, drag, and other necessary tools and appliances for doing the team work which Totman had contracted to do for the defendant. The plaintiff, under the arrangement, was to drive the team furnished him by his employer, in doing the work under the direction of the defendant. The furnishing of the team for use by the plaintiff was not a mere gratuitous bailment (Gagnon v. Dana, 69 N. H. 264, 39 Atl. 982, 41 L. R. A. 389, 76 Am. St. Rep. 170), but a service for which Totman was paid. No reason is apparent why his duty of care in providing a suitable team for the plaintiff to drive while doing the defendant's work was not as great as it was when the plaintiff was engaged in the same service directly for his employer.

A violation or neglect of this duty proximately contributing to the plaintiff's injury would make Totman a tortfeasor in respect to the tort alleged in the plaintiff's declaration against the defendant; and upon this theory both might have been sued jointly or severally. It is not necessary that there should be concerted action on the part of both defendants. If the negligence of each was a proximate cause of the single indivisible injury to the plaintiff, this common liability therefor is established. In 1 Cooley, Torts...