Drinkard v. William J. Pulte, Inc., Docket No. 13993

• Decision Date: 27 June 1973
• Docket Number: No. 2,Docket No. 13993,2
• Citation: 48 Mich.App. 67,210 N.W.2d 137
• Parties: Robert E. DRINKARD and General Accident, Fire and Life Assurance Corporation, a foreign corporation, Plaintiffs-Appellants, v. WILLIAM J. PULTE, INC., a Michigan corporation, et al., Defendants-Appellees. WILLIAM J. PULTE, INC., a Michigan corporation, Third Party Plaintiff, v. Levi S. SAYLOR, Jr., d/b/a Wilder-Saylor Excavating Company, and Superior Installers and Excavating Company, a Michigan corporation, Third Party Defendants. Levi S. SAYLOR, Jr., d/b/a Wilder-Saylor Excavating Company and Superior Installers and Excavating Company, a Michigan corporation, Fourth Party Plaintiffs, v. Robert E. DRINKARD, Fourth Party Defendant
• Court: Court of Appeal of Michigan — District of US

Page 137

210 N.W.2d 137

48 Mich.App. 67

Robert E. DRINKARD and General Accident, Fire and Life

Assurance Corporation, a foreign corporation, Plaintiffs-Appellants, v. WILLIAM J. PULTE, INC., a Michigan corporation, et al.,

Defendants-Appellees.

WILLIAM J. PULTE, INC., a Michigan corporation, Third Party Plaintiff, v. Levi S. SAYLOR, Jr., d/b/a Wilder-Saylor Excavating Company, and Superior Installers and Excavating Company, a

Michigan corporation, Third Party Defendants.

Levi S. SAYLOR, Jr., d/b/a Wilder-Saylor Excavating Company and Superior Installers and Excavating Company, a Michigan corporation, Fourth Party Plaintiffs, v. Robert E. DRINKARD, Fourth Party Defendant.

Docket No. 13993.

Court of Appeals of Michigan, Division No. 2.

June 27, 1973.

Rehearing Denied Aug. 9, 1973.

Released for Publication Sept. 10, 1973.

Richard G. Eubank, Birmingham, for plaintiffs-appellants.

Roy P. Nelson, Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch, Detroit, for defendants-appellees.

Before J. H. GILLIS, P.J., and McGREGOR and ADAMS, ^* JJ.

McGREGOR, Judge.

This appeal involves the grant of a directed verdict by the trial court in favor of defendants William J. Pulte, Inc., and James T. Lynch, Inc., hereinafter referred to as Pulte and Lynch.

The evidence and exhibits indicate that, at the time the subject accident occurred, on November 30, 1963, defendant James T. Lynch, Inc., was the contract purchaser of a certain plot of land located in Oakland County, known as Bennington Green. Subsequent to the accident, William J. Pulte, Inc., purchased the land contract interest of James T. Lynch, Inc., in said land. The transfer and ownership of Bennington Green was properly recorded.

While the land was being subdivided, James T. Lynch, Inc., entered into a written agreement with Superior Installers and Excavating to install sewers and water lines in the proposed subdivision. Superior, in turn, employed Levi Saylor, Jr., doing business as Wilder-Saylor Excavating Company, as a subcontractor to install said sewers and water lines in Bennington Green. Hubbell, Roth & Clark were engaged by Bloomfield Township as engineers to supervise the installation of said sewers and water lines. Plaintiff Drinkard was an employee of Hubbell, Roth &amp Clark, and in the course of his employment sustained injuries when he was struck by an end loader operated by one Everett Davenport, an employee of Levi Saylor, Jr., doing business as Wilder-Saylor.

In plaintiff's original suit, it was alleged that defendant Pulte, Inc., had hired and contracted with the defendant organization Superior Installers to do certain work in said area. Subsequently this complaint was amended, without incorporation the original complaint, and the amended complaint alleged that the employee who injured plaintiff was acting for and as an agent on behalf of each of the defendants named in the suit. The allegation that Everett Davenport was an employee of defendants Pulte and Lynch was denied in their answer; it was asserted as an affirmative defense that defendants Pulte and Lynch had no control over the activities of the Wilder-Saylor Excavating Company.

Approximately three years after the commencement of the initial suit, plaintiff Drinkard consummated a settlement and released defendant Levi Saylor, Jr., doing business as Wilder-Saylor Excavating Company, from any and all liability arising from the accident upon which the complaint was based. Plaintiff and Levi Saylor further agreed that Levi Saylor and its employee Everett Davenport were to be indemnified by plaintiff as a result of any judgments of negligence arising from plaintiff's complaint or any other complaint arising from plaintiff's injuries or losses. This release was not introduced in evidence.

However, the record indicates that on March 4, 1970, there was a motion for summary judgment by Superior Installers. The motion states:

'That on or about June 13, 1969, plaintiff, Robert E. Drinkard, executed a Release which released Levi S. Saylor d/b/a Wilder-Saylor Excavating Company and Everett Davenport, from any and all liability arising out of an accident occurring on November 31, 1964. (A copy of said release is attached hereto as Exhibit 1).'

On May 4, 1970, a motion for summary judgment was made by Pulte, Inc. This motion contains the same paragraph regarding the release. Also on May 4, 1970, a motion for summary judgment was made by James T. Lynch, Inc., which also contains the above quoted paragraph.

On May 8, 1970, plaintiff's answer to the motions for summary judgment was filed, in which plaintiff stated:

'A release was executed and its effect depends upon its words. Denied that Davenport was released.'

The answer further states:

'Denied that said release as a matter of law bars moving against Pulte.'

In view of the fact that there is no denial of the execution of the release or of its contents, we conclude tht the release is a proper portion of the record in this case and that it may be considered by us in arriving at a decision. While Everett Davenport's name is stricken from the first paragraph of the release, the third paragraph, dealing with indemnification, states:

'I, Robert Edward Drinkard, agree to satisfy any decree, judgment, or award in which there is such a described adjudication, but only as to the released parties, Levi S. Saylor, Jr. d/b/a Wilder-Saylor Excavating Company and Everett R. Davenport * * *.'

Davenport's name appears several other times in the ensuing document. Considering the document as a whole, we think there can be no question but that it constitutes a release not only of Levi S. Saylor, Jr., doing business as Wilder-Saylor Excavating Company, but also of Everett R. Davenport.

Trial of the principal case was had in circuit court. At trial, only James T. Lynch, Inc., and William J. Pulte, Inc., and its named shareholders remained in the lawsuit as named parties defendant. It was essentially plaintiff's theory that defendants Pulte and Lynch were liable to plaintiff for his injuries because they allegedly owned and controlled the construction of the subdivision project in which plaintiff has been injured.

Following the introduction of plaintiff's proofs, defendants Pulte and Lynch moved for a directed verdict. After hearing opposing argument, the court entered a judgment for the defendants based on the grounds that plaintiff had failed to introduce any proofs or evidence which indicated that defendants Pulte and Lynch controlled or supervised the activities of the subcontractors who were performing construction work on land which these defendants allegedly owned.

From this adverse decision, plaintiff appeals.

Virtually plaintiff's whole claim was based on the theory that the subcontractor, Wilder-Saylor, was not an independent contractor, but was rather an agent or employee of the defendants. In our analysis, we assume that plaintiff's contentions are correct in this respect.

The question before us is whether plaintiff's pretrial settlement, releasing Davenport, and the court's dismissal with prejudice, releasing Wilder-Saylor, bars any claim he might have against the remaining defendants. It is clear from a reading of The amended complaint that defendants' liability must be, if at all, predicated upon the Respondeat superior theory incident to the master-servant or principal-agent context. In 76 C.J.S. Release § 50, p. 689, it is stated:

'In a situation where several persons are not actively joint tort-feasors but one person commits the tort and is primarily liable while the liability of the other person is derivative or secondary, as where it arises under the doctrine of respondeat superior, the releasor's acceptance of satisfaction from one, discharges the other as well as in the case of master and servant of principal and agent * * *.'

See also 53 Am.Jur.2d, Master & Servant, § 408, pp. 416--418; 92 A.L.R.2d 533, § 3(b), pp. 539--540.

Before turning to the Michigan authorities on this question, an examination of two cases from other jurisdictions would be helpful. In Mid-Continent Pipeline Co. v. Crauthers, 267 P.2d 568 (Okl.1959), the Supreme Court of Oklahoma stated:

'(5) Under the facts in this case, the only negligence of which the defendant company could possibly be guilty was the negligence of its agents or employees, the Colpitts, whose pumper turned the wrong valve and caused the oil to flow into the watercourse instead of the pipe line. See 57 C.J.S. Master and Servant § 570 a, p. 294, which reads in part as follows:

"Under the doctrine of respondeat superior, a master is liable for injury to the person or property of another proximately resulting from the acts of his servant done within the scope of his employment in the master's service.'

'Therefore, the liability of the defendant pipe line company can arise, if at all, only by virtue of the doctrine of respondeat superior.

'(6, 7) As hereinabove recited, the Colpitts made a settlement with the plaintiff herein, and received a 'Release and Covenant Not to Sue.' Such being the case, defendant pipe line company (the master) cannot be held to answer under the doctrine of respondeat superior. See 35 Am.Jur., Master and Servant § 535, p. 963, wherein the following is found:

"According to the great weight of authority, where both master and servant are liable to a third party for a tort of the servant, a valid release of either master or servant from liability for the tort operates to release the other * * *.'

'The above rule is of course inapplicable where the master is guilty of some independent or concurring act of negligence, but in the instant case no such act was either pleaded or proved.

'Therefore, since the defendant herein is not liable by reason of 52 O.S.1951 § 296, is not guilty of any independent or concurring act of negligence, and cannot be held liable under the doctrine of respondeat superior because the servant was released, it follows that the plaintiff...