Hamm v. Thompson, 18537
| Decision Date | 06 June 1960 |
| Docket Number | No. 18537,18537 |
| Citation | 143 Colo. 298,353 P.2d 73 |
| Parties | Charles E. HAMM, Plaintiff in Error, v. Jamie THOMPSON and Florence K. Turner and United States Fidelity and Guaranty Company, Defendants in Error. |
| Court | Colorado Supreme Court |
George F. Harsh, Charles D. Bromley, Denver, for plaintiff in error.
Duane O. Littell, James E. Algeo, Morton McGinley, Denver, for defendants in error.
Defendants in error, plaintiffs below, filed a complaint in the district court seeking damages allegedly sustained by plaintiffs when an automobile driven by defendant Hamm collided with a motor vehicle owned by plaintiff Florence Turner and driven by plaintiff Jamie Thompson. The complaint named as defendants, Hamm, and Universal Mutual Casualty Company (hereinafter referred to as Universal Mutual or Company). It was alleged that the negilgence of defendant Hamm caused said collision and that he 'was an agent, employee or servant of defendant Universal Mutual Casualty Company and (was acting) in the course and scope of his agency or employment,' when the accident occurred.
Defendant Hamm answered with a denial of said negligence and set forth certain affirmative defenses, and admitted that he was acting in the scope of his employment as agent of Universal Mutual when the collision occurred. The Company, by answer, denied such agency.
On July 29, 1957 the court ordered that the action be dismissed without prejudice as to Universal Mutual pursuant to a 'Stipulation for Dismissal' filed by plaintiffs and the Company. On that same day plaintiffs admittedly executed and delivered to Universal Mutual for and in consideration of $750, a document entitled 'Covenant not to sue.'
Thereafter defendant Hamm moved to dismiss the complaint and for a directed verdict on the ground that the 'Covenant Not to Sue' was a release of Universal Mutual; that defendant and Universal Mutual are joint tort-feasors, and that a release of one joint tort-feasor is release of all. Therefore, the defendant should be released and the complaint dismissed as a matter of law.
The motions were denied by the trial court and trial had to a jury upon the issues thus joined. A verdict was subsequently returned for the plaintiffs in the sum of $10,600 and judgment was entered on the verdict. Defendant Hamm is here by writ of error seeking reversal of the judgment on the ground that the trial court erred in denying defendant's motion for a directed verdict.
The instrument titled 'Covenant Not to Sue' provides for consideration of $750 to he paid by Universal Mutual and sets forth, in customary terms, plaintiff's agreement not to sue Universal Mutual for any of the matters set forth in the complaint, substantially the same as the instrument considered in Price v. Baker, Colo., 352 P.2d 90. Defendant Hamm argues that the so-called 'Covenant Not to Sue' involved here is a release; that Universal Mutual and defendant are joint tort-feasors, and that a release of one joint tort-feasor releases all.
To support the conclusion that Universal Mutual and defendant are joint tort-feasors, defendant argues that Universal Mutual is vicariously liable for defendant's negligence on the theory of respondeat superior for the reason that defendant was a servant or agent of said company acting in the scope of his employment when the accident occurred. Therefore, the two are joint tort-feasors.
Whether or not Universal Mutual and defendant are joint tort-feasors in the sense that a release of the former acts to release the latter, poses a question which has never been decided in this jurisdiction and consequently cases from other states must be resorted to in arriving at a solution.
A case in point is Losito v. Kruse, 136 Ohio St. 183, 24 N.E.2d 705, 707, 126 A.L.R. 1194, where it was held that a master, who is liable under the doctrine of respondeat superior for injuries caused by his servant's negligence, is a tort-feasor with the servant, and a release of the master is not a release of the servant. The court reasoned:
The law of this jurisdiction, by way of analogy, supports the reasoning of Losito v. Kruse, supra. It is well settled that a master who pays for injuries or damage to another resulting from his servant's tort has a right of indemnification from his servant for the amount so paid. Parrish v. De Remer, 117 Colo. 256, 187 P.2d 597; Otis Elevator Co. v. Maryland Casualty Co., 95 Colo. 99, 33 P.2d 974; See, Spillane v. Wright, 127 Colo. 580, 259 P.2d 1078. It is equally well settled that there is no contribution among conventional tort-feasors in this jurisdiction. Otis Elevator Co. v. Maryland Casualty Co. supra.
The reasoning of Losito v. Kruse, supra, that the 'servant's liability as such is in no way affected by a settlement with the master' because of the common law rule pertaining to indemnification and contribution between master and servant is equally applicable in this jurisdiction where common law principles are the rule of decision. The rule is stated in convincing language in Harper & James, Volume 1, § 10.1, page 700 wherein it is stated in Note 50:
Defendant would have this court apply the concept of 'joint tort-feasors' to the master-servant relationship in cases where the master is liable for the servant's torts only under the doctrine of respondeat superior * * * to the extent that a release of the master is a release of the servant. To do so would enable the sole wrongdoer, the servant, to escape liability altogether, for the...
To continue reading
Request your trial
-
Yates v. New South Pizza, Ltd.
...same effect are numerous. In McCall v. Roper, 685 P.2d 230 (Colo.Ct.App.1984), the Colorado Court of Appeals said: In Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960), the court "[T]he common law rule prohibiting contribution between joint tortfeasors does not apply to a master whose lia......
-
Mountain Mobile Mix, Inc. v. Gifford
...105 (1962). When the comparative negligence statute was enacted, Colorado had no common law right of contribution, see Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960); though, in 1977, the General Assembly adopted the Uniform Contribution Among Tortfeasors Act, sections 13-50.5-101 to 1......
-
Brochner v. Western Ins. Co.
...of Colorado has consistently followed the majority common law rule prohibiting contribution among joint tortfeasors. Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960); see Ringsby Truck Lines, Inc. v. Bradfield, 193 Colo. 151, 563 P.2d 939 (1977). Recognizing that strict application of th......
-
National Farmers Union Property and Cas. Co. v. Frackelton, 82SC31
...to remedy a harsh common law rule. Before the Act was adopted, contribution among joint tortfeasors was not allowed. Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960). Changing rules of tort liability have expanded the number of parties who could be considered joint tortfeasors, while the......
-
Colorado's Contribution Among Tortfeasors Act
...Reparations (no-fault) Act and product strict liability are examples of this attitude of deemphasis of fault. 5. Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960). 6. 101 Eng. Rep. 1337 (K.B. 1799). 7. An intentional tort. 8. Lord Kenyon implied in Merryweather that the decision applied o......
-
Comparative Negligence
...while the conduct of the other was active and proximate. The former was allowed to recover from the latter. But see Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73, where the Colorado court announced the general rule that contribution among conventional joint tort-feasors is not recognized. Th......
-
The Apportionment of Tort Responsibility
...Co., supra, note 28. 48. 187 P.2d 597 (Colo. 1947). 49. Id. at 604. 50. Id. at 605. 51. Publix Cab. Co., supra, note 21 at 867. 52. 353 P.2d 73 (1960). See text accompanying note 30, supra. 53. Jacobson, supra, note 28 at 300. 54. 488 P.2d 208 (1971); 489 P.2d 356 (1971); Bradford, supra, n......
-
Indemmification or Contribution Among Counsel in Legal Malpractice Actions
...Court, 118 Cal.App.3d 226, 173 Cal.Rptr. 261 (1981). See also, Hughes v. Hansley, 599 P.2d 1250 (Utah 1979). 15. Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960); Naiman v. Warren A. Flickinger and Associates, Ltd., 605 P.2d 63 (1979); 42 C.J.S. Indemnity § 20 (1980). 16. "Liability Amon......