Edens v. Fletcher

• Decision Date: 12 December 1908
• Docket Number: 15,716
• Citation: 98 P. 784,79 Kan. 139
• Parties: CARRIE EDENS v. JOHN J. FLETCHER et al
• Court: Kansas Supreme Court

98 P. 784

79 Kan. 139

CARRIE EDENS v. JOHN J. FLETCHER et al

No. 15,716

Supreme Court of Kansas

December 12, 1908

Decided July, 1908.

Error from Wyandotte court of common pleas; WILIAM G. HOLT, judge.

STATEMENT.

THE plaintiff, Carrie Edens, sued John J. Fletcher and twelve other defendants, including the municipality of Kansas City Kan., and the mayor and chief of police of that city, for damages resulting from the intoxication of her husband by liquors sold to him by the defendants at a place where it is alleged they maintained a common nuisance. It is also alleged that the defendant brewing companies furnished the liquors for such unlawful purpose; that the city received a sum each month from its codefendants in consideration of its permission to carry on such business; that the mayor and chief of police participated in this corrupt arrangement; and that thereby, and because of the intoxication of her husband thus caused by the defendants, plaintiff's home had been ruined and she had lost the means of support for herself and family, to her damage in the sum of $ 20,000.

While a motion to set aside the service of summons upon the Val Blatz Brewing Company was pending the plaintiff entered into a stipulation in this and other similar actions, as follows:

"It is hereby stipulated and agreed by and between the parties to the above-entitled causes that the said causes be and the same are dismissed as to the defendants The Val Blatz Brewing Company and John Kremer, the plaintiff hereby acknowledging full satisfaction and payment for all damages and injuries arising out of, or in any manner connected with, the causes of action in the petitions in these causes alleged against said company and said John Kremer. And the plaintiff further acknowledging full satisfaction and payment of any injuries or damages arising out of the matter set out in said petitions against the United States Brewing Company the same as if said brewing company had been made a party in the said petitions and these causes.

"The plaintiff hereby reserving, and not in any manner waiving any rights or causes of action against any of the other defendants."

Thereupon the plaintiff dismissed her action as to the Val Blatz Brewing Company and Kremer without prejudice. The defendant Fletcher then filed the following motion:

"Comes now the defendant John J. Fletcher, in each of the above-named actions, and moves the court to dismiss the said action and each of them for the following reasons, to wit First, because on or about the 15th day of September, A. D 1906, the plaintiff in each of the above-entitled actions made a full accord, settlement and satisfaction with defendants John Kremer and Val Blatz Brewing Company, for all the injuries alleged and set forth in the petitions filed in said actions, and received therefor the full sum of four hundred dollars, and therefore agreed to, and did, dismiss all of said actions against the said John Kremer and the said Val Blatz Brewing Company, and thereby the said accord and satisfaction as to the defendants John Kremer and the Val Blatz Brewing Company did operate as a bar to the further prosecution of each and all of the cases aforesaid."

This motion was heard over the objection of the plaintiff, who contended that the matters referred to therein should be pleaded in defense and could not properly be decided upon a mere motion. The motion was allowed and the action dismissed. The plaintiff excepted, and brings the case here for review.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JOINT WRONG-DOERS--Release of One--Effect. An acknowledgment by the plaintiff of satisfaction against two of several defendants, who are sued as joint wrong-doers, will not release the others, where the instrument offered to show such release shows that it was not intended to have such effect.

2. JOINT WRONG-DOERS--Reservation of Right to Proceed against Others. Where such acknowledgment of satisfaction contains an express reservation of the right to proceed against the other joint wrong-doers, who are codefendants with those released, and other expressions in the instrument are not inconsistent with the retention of such right, the intention of the parties that the instrument should not operate as a release of such codefendants sufficiently appears.

James M. Mason, and E. E. Chesney, for plaintiff in error.

Enright & Screechfield, and Harkless, Crysler & Histed, for defendants in error.

OPINION

BENSON, J.:

The plaintiff alleges that the court erred in hearing the motion over her objection, and in holding that upon the stipulation and the payment therein acknowledged the motion should be allowed. The defendant Fletcher, who alone made the motion and obtained the order of dismissal, contends that the remaining defendants, having been sued as joint wrong-doers with the brewing company and Kremer, were released by the settlement so made with them, upon the principle that the release of one or more of several joint wrong-doers releases all. (Westbrook v. Mize, 35 Kan. 299, 10 P. 881.)

It was said in Railway Co. v. McWherter, 59 Kan. 345, 53 P. 135, 137, that "the soundness of the general rule that a settlement with one of two joint tort-feasors ordinarily discharges both is recognized." (Page 351.) That there are exceptions to, or limitations upon, the application of the rule must also be conceded, for in the case last cited it was held not to apply where the proof did not show that the defendant released was liable for the tort although charged with its commission. It was held in Wardell v. McConnell, 25 Neb. 558, 41 N.W. 548, in an action for damages under the civil liability provisions of the intoxicating liquor laws of that state, that "the rule is that where the damages are uncertain, accord and satisfaction before judgment by one of several joint wrong-doers is satisfaction as to all; but the discharge of a party not shown to be a joint wrong-doer will not operate as a discharge of the other defendants." (Syllabus.) In the opinion it was said:

"In the case at bar, there being no proof that Huber was jointly a wrong-doer in the sale of liquors to J. B. McConnell, the receipt of the money by Mrs. McC. and dismissal of the action as to Huber did not release the plaintiffs in this action. The judgment of the district court is right, and is affirmed." (Page 560.)

A similar result was reached in Thomas v. R. R. Co., 194 Pa. 511, 45 A. 344.

It is also held in many jurisdictions that the rule invoked by the defendants does not apply to cases where the instrument offered as a release contains a reservation of the right to sue the other codefendants. Other courts hold that such reservation does not prevent the application of the principle, and that all joint wrong-doers are discharged from liability by the release of one, because of the supposed indivisibility of a single tort, where there can be no apportionment of the damages among the tort-feasors, and because the reservation is repugnant to the release. A recent and leading case supporting this doctrine, Abb v. Northern Pacific Ry. Co., 28 Wash. 428, is reported in 58 L.R.A. 293, and in 92 Am. St. Rep. 864, 882, with elaborate notes in each reviewing the authorities on this subject. In McBride v. Scott, 132 Mich. 176, 93 N.W. 243, 61 L. R. A. 445, 102 Am. St. Rep. 416, 1 A. & E. Ann. Cas. 61, the same rule is declared.

The decisions to the contrary, while conceding the general rule as stated in Westbrook v. Mize, 35 Kan. 299, 10 P. 881, deny its application to cases where the instrument shows that it was not the intention to release all the wrong-doers, and that such intention appears where the instrument reserves the right to proceed against those who are not by its express terms released. This is the rule finally adopted in New York, after an exhaustive review of the earlier decisions in that state and elsewhere. In Gilbert v. Finch, 173 N.Y. 455, 66 N.E. 133, 61 L. R. A. 807, 93 Am. St. Rep. 623, that court said:

"The instrument given to the Maine incorporators upon the settlement of the plaintiff's suit against them released and discharged them from all further claims or demands, so far as the plaintiff was concerned, but it was expressly provided in the instrument that it should not affect any cause of action on behalf of the receiver against any other person. The purpose of this reservation is very evident. The receiver, doubtless, intended to pursue the defendants for the balance of the claim. The instrument therefore, does not purport, neither was it intended, to be a full and complete settlement of the plaintiff's entire claim. . . . In England the modern authorities appear to be quite uniform upon the question. They are to the effect that, as between joint debtors and joint tort-feasors, a release given to one releases all; but if the instrument contains a reservation of a right to sue the other joint debtor or tort-feasors, it is not a release, but in...