Fitzgerald v. Union Stockyards Co.

• Decision Date: 23 May 1911
• Docket Number: No. 16,360.,16,360.
• Citation: 131 N.W. 612,89 Neb. 393
• Parties: FITZGERALD v. UNION STOCKYARDS CO., LIMITED.
• Court: Nebraska Supreme Court

89 Neb. 393

131 N.W. 612

FITZGERALD

v.UNION STOCKYARDS CO., LIMITED.

No. 16,360.

Supreme Court of Nebraska.

May 23, 1911.

Syllabus by the Court.

Several actions may be brought and several judgments recovered against several wrongdoers, although but one satisfaction can be had.

If one of several joint wrongdoers makes full payment of damages caused by injury done, there can be no further recovery for the same injury.

If one of several joint wrongdoers makes settlement with the injured party and pays him damages which he agrees to receive and does receive as full compensation for all damages sustained, it will release all of the joint wrongdoers.

Settlement with one of several joint wrongdoers and payment of damages is not a defense to an action against another, unless it was agreed between the parties to the settlement that such payment was in full of all damages suffered. If the settlement is in writing, oral evidence is competent to show the intention of the parties thereto in an action against one not a party to the settlement. Affixing a private seal to such writing is without effect.

If the evidence is substantially conflicting upon a material issue, it presents a question for the jury. Evidence in this case is found to be insufficient to justify the court in directing the verdict.

Appeal from District Court, Douglas County; Kennedy, Judge.

Action by Mary Fitzgerald, administratrix of Martin Fitzgerald, revived in the name of Mayme Fitzgerald, administratrix de bonus non, against the Union Stockyards Company, Limited. Judgment for defendant, and plaintiff appeals. Reversed and remanded.Smyth, Smith & Schall, for appellant.

Greene, Breckenridge & Matters, for appellee.

SEDGWICK, J.

Martin Fitzgerald a young man about 23 years of age, was in the employ of the Chicago, Burlington & Quincy Railroad Company as a switchman in the yards at South Omaha. Because of a defect in one of the cars of the company, it was necessary to use a chain in coupling it with the tender of the engine, and Fitzgerald was directed by the foreman to go between the car and the tender for that purpose. While he was so employed, the defendant company drove a train of cars against the train on which he was working, which forced the car and locomotive together, and instantly killed him. His mother, the plaintiff, as administratrix of his estate, brought this action against the defendant for damages caused by his death. The defendant denied that it was negligent, and alleged that this plaintiff and the father of the deceased had brought an action against the Chicago, Burlington & Quincy Railroad Company upon the same cause of action, and that the negligence of the defendant in that action was the cause of the injury complained of, and that the same parties also brought an action against the same railroad company as beneficiaries of the relief department of that company, and that afterwards both of the said actions were settled, and that the railroad company paid the plaintiff $4,400 in full settlement of the damages caused by the death of the said Fitzgerald, and $2,200 in full settlement of the benefits to which they were entitled from the relief fund. Upon the conclusion of the evidence, the court instructed the jury to find a verdict for the defendant. The plaintiff has appealed.

The parties agree that there are three principal questions to be determined in the case: (1) Were the defendant and the railroad company jointly liable for the death of the deceased; that is, were they joint tort-feasors? (2) If they were joint tort-feasors, could the plaintiff settle with and release one of them without releasing the other? (3) If the plaintiff could settle with and release the railroad company from liability and at the same time reserve its right of action against this defendant, is the testimony in the case sufficient to establish that it was the intention and agreement of the parties to settle with and release only the railroad company and reserve a right of action against this defendant? It was also contended by the defendant that in any event the evidence was not sufficient to show that this defendant was negligent, and that that negligence was the proximate cause of the injury complained of.

Upon the first question there is some controversy in the evidence, and we do not find it necessary to discuss this evidence in view of our conclusion upon the second proposition. If both parties are liable for the same injury, they are jointly and severally liable; that is, for the purpose of the case, they are joint tort-feasors. It is conceded in the pleading and briefs that the railroad company was liable. If this defendant was not guilty of negligence which was the proximate cause of the death of young Fitzgerald, then that of itself is a sufficient defense in this action. If it is conceded that the railroad company and this defendant were joint tort-feasors, would the settlement with the railroad company operate as a release of this defendant? While the action of Mr. and Mrs. Fitzgerald as the parents of the deceased was pending against the railroad company, they compromised with the railroad company by an agreement in writing, called a receipt and contract of settlement and release, as follows:

“Burlington Route. Feb., 1908. Audit Number, 253. Department Number, F. B. T. 1468. Chicago, Burlington & Quincy Railroad Company, Lines West of the Missouri River. 2--29--08. To Mary Fitzgerald, as Administratrix of the Estate of Martin J. Fitzgerald, Deceased, Edward A. Fitzgerald and Mary Fitzgerald, Father and Mother of Said Deceased. South Omaha, Nebraska. Paid Voucher. That is to certify that I, Mary Fitzgerald as administratrix of the Estate of Martin J. Fitzgerald, deceased have this day received from the treasury of the Chicago, Burlington & Quincy Railroad Company, the sum of forty-four hundred ($4400.00) Dollars. $4400.00. And this is to certify that we, Edward A. Fitzgerald and Mary Fitzgerald, father and mother of said deceased, have this day received from the Relief Fund of the Relief Department of said Company draft #30984, for twenty-one hundred ($2100.00) dollars same being amount of death benefit due us as beneficiaries of said deceased. And in consideration of the above payments, we, Mary Fitzgerald as such administratrix and Edward A. Fitzgerald and Mary Fitzgerald, as such father and mother, hereby acknowledge full payment, settlement, release and satisfaction and discharge of all claims and demands of any nature whatsoever, which we, or either of us, as such administratrix or as such parent, may have or claim to have either against the Chicago, Burlington & Quincy Railroad Company or its said Relief Department, or both of them, arising from, growing out of, or to grow out of the death of Martin J. Fitzgerald aforesaid, from injuries inflicted upon his person by reason of his being struck, run over and crushed by switching train in yards at South Omaha, Nebraska, on or about October 15th, 1907. Member R. D. Draft No. 1187. Claim No. #F. D. 50, Neb. Approved: F. B. Thomas. Approved: James E. Kelby. Approved: ............. Approved: H. D. Foster, Asst. Auditor.

Contract of Settlement and Release. Whereas, I have agreed upon a settlement of all claims against the Chicago, Burlington & Quincy Railway Company arising from the circumstances set out in the foregoing memorandum, which is made a part of this agreement, and in said settlement have included all damages sustained by me, those not yet ascertained or developed, if any there shall be, as well as those now known, and also have included and settled all other causes of action at this date existing in my behalf against said Company, whether arising upon contract or tort, and whether like or unlike the demand specifically referred to above: Now, in consideration of the payment to me of forty-four hundred dollars ($4400.00) hereby acknowledged and declared to be the full and only consideration moving to me, the receipt of which is hereby acknowledged, I do hereby release and forever discharge the Chicago, Burlington & Quincy R. R. Company, its lessors, lessees and controlled companies, and its and their officers, employés, Relief Department, successors and assigns, of and from all debts, suits, causes of action, claims and demands whatsoever, at law or in equity, which I now have, or to which I may hereafter become entitled on account of the circumstances above set out, including damages not yet ascertained or developed, if any there shall be, as well as those now known, and also of and from all or any other causes or things to this date, whether like or unlike the premises, and whether arising in contract or in tort. In witness whereof I have hereunto set my hand and seal this 29th day of February, 1908. Read to the said Mary Fitzgerald, Admrx., etc., and Edward A. Fitzgerald, and subscribed by him in our presence, this 29th day of February, 1908, Mary her X mark Fitzgerald, as Administratrix of the Estate of Martin J. Fitzgerald, Deceased. Edward A. Fitzgerald, Father. Mary her X mark Fitzgerald, Mother. Witness: Mary Fitzgerald. Witness for Edward A. Fitzgerald, and for mark of Mary Fitzgerald: C. J. Smith.”

This court, so far as we have noticed, has not considered and determined the precise question involved. In Wardell v. McConnell, 25 Neb. 558, 41...