Cook v. City Transp. Corp.

• Decision Date: 03 June 1935
• Docket Number: No. 159.,159.
• Citation: 272 Mich. 91,261 N.W. 257
• Parties: COOK v. CITY TRANSPORT CORPORATION et al.
• Court: Michigan Supreme Court

272 Mich. 91

261 N.W. 257

COOK

v.CITY TRANSPORT CORPORATION et al.

No. 159.

Supreme Court of Michigan.

June 3, 1935.

Action by J. Earl Cook against the City Transport Corporation and C. J. Lindeman. From a judgment in favor of plaintiff against the defendant Lindeman, said defendant appeals.

Affirmed.

POTTER, C. J., and NELSON SHARPE and WIEST, JJ., dissenting.

Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench.

Rodgers & Dunn, of Grand Rapids, for appellant.

Harry F. Hittle, of Lansing, for appellee.

POTTER, Chief Justice (dissenting).

Plaintiff sued defendants, City Transport Corporation and C. J. Lindeman, to recover damages alleged to have been caused by the negligence of the defendants wherebyplaintiff, a passenger on a motorbus of the Lansing Transport Corporation, was injured.

Declaration was filed April 5, 1934. December 6, 1933, plaintiff, in consideration of the sum of $139 paid to him by the City Transport Corporation, defendant, covenanted and agreed ‘for himself, executor, executors, administrator, administrators, and assignees, he, she, they or either of them will never sue, or bring, or cause to be brought any action against the said City Transport Corporation, and/or Arthur Otto, operator, or either or any of them, on account of bodily injuries and property damage, growing out of accident, hereinbefore described,’ being the cause of action sued upon in plaintiff's declaration.

The agreement so signed recites that it is made to avoid litigation and expense, ‘but in such a way that shall not impair or effect (affect) the claim of said J. Earl Cook against any person or corporation, other than the City Transport Corp., and or Arthur Otto, operator, causing or helping to cause said accident and resulting injuries or damage.’ This agreement, when construed as a whole, clearly constitutes an agreement or covenant not to sue one joint tort-feasor; and the question is presented as to whether such a covenant or agreement not to sue one joint tort-feasor amounts to a release which will bar plaintiff from recovery against all joint tort-feasors.

Plaintiff does not controvert the rule established in McBride v. Scott, 132 Mich. 176, 93 N. W. 243,61 L. R. A. 445, 102 Am. St. Rep. 416,1 Ann. Cas. 61;Lindsay v. Acme Cement Plaster Co., 220 Mich. 367, 190 N. W. 275;Moffit v. Endtz, 232 Mich. 2, 204 N. W. 764;MacDonald v. Henry Hornblower & Weeks, 268 Mich. 626, 256 N. W. 572, that a release of one of several joint tort-feasors releases them all; but plaintiff contends a covenant and agreement not to sue is something distinct and different from a release and does not extinguish the cause of action. Nashville Interurban Ry. v. Gregory, 137 Tenn. 422, 193 S. W. 1053. It seems to be conceded the authorities almost universally hold that a covenant or agreement not to sue one of several joint tort-feasors made on a sufficient consideration is not a release (23 R. C. L. 408), contending the rule in Michigan is the rule laid down in 53 C. J. 1263, where it is said: ‘A covenant or agreement not to sue one or less than all joint tort-feasors does not release and will not bar an action against the others, unless shown to have been so intended, and unless a complete satisfaction has been received in return for the covenant or agreement. The rule applies particularly where it is specifically provided that the covenant shall not affect the covenantor's rights as against the other joint tort-feasors, although such a reservation is unnecessary for the preservation of such rights.’

It must be conceded the rule as above quoted from Corpus Juris is the rule established by the great weight of authority. Decisions from courts of last resort of twenty-five states, and from the Supreme Court of the United States and subordinate federal courts, are collected in the notes to the above quotation and sustain the rule established by the text. The reason for this rule is that all joint tort-feasors are jointly and severally liable. The plaintiff may sue one, or any number, or all of them, at his option, and no contributions may be enforced among or between such joint tort-feasors, and there is no reason why, if plaintiff may elect without consideration not to sue one or more of several joint tort-feasors, he may not make such an election upon a valid consideration and by agreement with the one which he covenants not to sue. And, therefore, the right of the plaintiff to continue the action against the other joint tort-feasors than the covenantee is not affected by the execution of a covenant not to sue and dismissal of the pending action as against the covenantee.

Defendant Lindeman contends a tort is individsible though more than one person may have contributed thereto; that it may not be split; that there can be but one recovery for a tort, no matter how many persons may have contributed thereto; and that a settlement and release from liability of one joint tort-feasor is in effect the settlement and release as to all.

The disposition of this case depends upon whether such covenant not to sue does amount to a release. In Robinson et al. v. Godfrey, 2 Mich. 408, the question presented was whether a valid promise not to assert a particular remedy for a specified time would bar an action brought before the time expired. The court, by Justices Wing, Martin, Green, Copeland, Douglass, Johnson, Pratt, and Whipple, by Douglass, J., said: ‘It seems to us very clear, upon principle, that whenever a creditor agrees with his debtor, upon good consideration, that he will never or not for a specified time, pursue against him, either any or all of the remedies which the law gives for the enforcement of a particular demand, the agreement is not collateral to the original contract of indebtment, giving merely a claim for damages in case of its breach, but operates directly upon the contract, and as the case may be, destroys or modifies the legal rights and obligations which grow out of it. The right of the creditor is simply, a right by means of established legal remedies, to recover such damages as the law gives, for breach of contract. The co-relative obligation of the debtor is what the law, through the instrumentality of these remedies, will oblige him to pay or perform. The law applied to the contract, is the measure of each. * * * An agreement never to sue annihilates both. In legal sense, it destroys the contract. It leaves remaining but the...