Haney v. Cheatham
| Decision Date | 11 April 1941 |
| Docket Number | 28281. |
| Parties | HANEY v. CHEATHAM et al. |
| Court | Washington Supreme Court |
Department 2.
Action by William H. Haney against J. A. Cheatham and the marital community composed of J. A. Cheatham and wife, and J. Dewey Shafer, and F. R. Zahniser and A. E. Warren, a copartnership doing business under the name of Zahniser & Warren, for personal injuries and property damage alleged to have been sustained as result of a collision of plaintiff's automobile with a truck owned by defendants Zahniser & Warren, and operated by defendant Shafer, wherein defendants Zahniser, Warren and Shafer filed counterclaims against plaintiff and sought recovery against defendant Cheatham and the marital community composed of J. A. Cheatham and wife. From an adverse judgment, the plaintiff appeals.
Affirmed.
Appeal from Superior Court, Spokane County; Fred H. Witt, judge.
Williams Williams & Cooney, of Spokane, for appellant.
Graves Kizer & Graves, of Spokane, for respondents.
William H. Haney, by complaint filed February 28, 1940, and amended complaint filed March 23, 1940, instituted an action against J. A. Cheatham and the marital community composed of J. A. Cheatham and wife; F. R. Zahniser and A. E. Warren, a copartnership doing business under the name of Zahniser and Warren, and J. Dewey Shafer, to recover for personal injuries and property damage alleged to have been sustained as a result of the collision of plaintiff's automobile with a truck owned by Zahniser and Warren and operated by J. Dewey Shafer. The two complaints alleged that just prior to the accident the truck of defendants Zahniser and Warren was proceeding north on Division street, an arterial highway in Spokane; that Cheatham was driving west in his automobile on Mission avenue approaching the intersection of that avenue with Division street; that plaintiff Haney was following the truck. It was plaintiff's theory that Cheatham drove into the arterial highway without stopping and yielding right of way to plaintiff's automobile and the truck of Zahniser and Warren which plaintiff was following. Plaintiff alleged that Cheatham 'obstructed the line of travel of plaintiff's automobile and the line of travel of the truck of defendants Zahniser and Warren.' Plaintiff also charged that Shafer, the driver of the truck, was guilty of negligence in that in endeavoring to avoid Cheatham's automobile he swung his truck in front of plaintiff's automobile which collided with the rear end of the truck.
On April 9, 1940, J. A. Cheatham paid to William H. Haney one thousand dollars, in consideration of which Haney executed a release or covenant not to sue which reads as follows:
J. A. Cheatham, and the community composed of J. A. Cheatham and Viola Cheatham, his wife; J. Dewey Shafer; F. R. Zahniser and A. E. Warren, partners doing business as Zahniser & Warren, Defendants.
Covenant Not to Sue.
'Know All Men by These Presents, That I, William H. Haney, the plaintiff above named, of Spokane, Washington, for myself and all my legal representatives, in consideration of the sum of One Thousand ($1,000.00) Dollars, to me in hand paid by J. A. Cheatham and the community composed of J. A. Cheatham and Viola Cheatham, his wife, defendants above named, receipt and sufficiency whereof are hereby acknowledged, do hereby, now and forever, covenant and agree not to sue or molest said defendants, J. A. Cheatham or the community composed of J. A. Cheatham and Viola Cheatham, his wife, upon and as to them only, to forthwith dismiss this or any other suits or proceedings which are now, or hereafter may be, pending upon, and forever refrain from instituting, pressing, collecting or in any way aiding or proceeding upon any and all claims, demands, causes of action, suits, proceedings or adjudications whatsoever, which I ever had, now have or may have against said J. A. Cheatham, or the community composed of J. A. Cheatham and Viola Cheatham, his wife, their estate or any of their legal representatives, for injuries, property damage, loss of services or support, expenses, costs, damages or in any manner whatsoever heretofore or hereafter arising out of any matter, cause or thing whatsoever, from the beginning of the world to and including the date hereof, and including, but without limitation of any of the foregoing, a certain accident, injury or damages claimed by me to have been sustained by me on or about the 17th day of January, 1940, substantially as alleged in the amended complaint herein.
'To obtain payment to me of the aforesaid consideration I do hereby expressly represent and warrant the following statements to be true: That I am now of full legal age; that I have neither made nor suffered any assignment or transfer whatsoever of any part of my said claim and am now sole and absolute legal and equitable owner of all thereof; that I rely solely upon my own judgment, belief and knowledge of the nature, extent and duration of injuries, disabilities and damages sustained by me, by virtue of any and all matters herein, or in said complaint stated whatsoever, and that no statements or representations made by said J. A. Cheatham or the community composed of said J. A. Cheatham and Viola Cheatham, his wife, or their surgeons or agents about said injuries, or otherwise, have influenced, or induced, me to execute or deliver this covenant.
'It is hereby expressly understood and agreed that this instrument is not intended as a release or discharge of, nor as an accord and satisfaction with, any person whomsoever, but only as a covenant not to sue and to the effect that said J. A. Cheatham and the community composed of J. A. Cheatham and Viola Cheatham, hereby by purchase peace and here hereby given peace upon any and all claims and matters whatsoever which have been or may be made against them by me; and that they, in making payment of said consideration for this covenant have done so solely to obtain such peace and do not thereby admit any liability on account of any of said claims or matter, but expressly deny all such liability whatsoever.
'I have executed and delivered this agreement due only to the facts and for the purposes herein receited, and also to the fact that it has been established that there is grave doubt that the defendant, J. A. Cheatham, was in any manner an actor or present at the time of the said accident, and it has been made to appear that even if said J. A. Cheatham was present or was an actor in any sense, it is highly doubtful if any act done or omitted by him was a cause, or a contributing cause, of the injuries received by me.
'The parties hereto authorize the court on the motion of either of them to enter an order of dismissal of this action as to the said defendants, J. A. Cheatham, and the community composed of J. A. Cheatham and Viola Cheatham, his wife, without the taxation of costs.'
Under authority of the foregoing stipulation, on motion of defendants Cheatham, the trial court entered an order June 10, 1940, dismissing the action of Haney against J. A. Cheatham and the community composed of J. A. Cheatham and Viola Cheatham, his wife.
Following the execution of the release or covenant not to sue, plaintiff filed a second amended complaint from which all reference to Cheatham or any third vehicle was omitted and Shafer was charged with negligence solely because, without giving any signal or intention so to do and within a distance of less than fifty feet from the intersection of Division street and Mission avenue, he turned the truck to the left and into the inner lane of travel and abruptly stopped the truck in the path of plaintiff's automobile, as a result of which negligence plaintiff's automobile collided with the truck.
Shafer counterclaimed against Haney and sought recovery against the Cheathams for personal injuries. His employers, Zahniser and Warren, sought recovery in the same manner for damage to the truck. Shafer, Zahniser and Warren, as an affirmative defense to the claim of Haney, pleaded contributory negligence and further defended on the ground that if Shafer were negligent he and Cheatham were joint tort feasors and that the release given to J. A. Cheatham and the marital community composed of Cheatham and wife for a consideration of one thousand dollars released defendants Shafer, Zahniser and Warren from all liability to plaintiff Haney.
The cause was tried to the court sitting with a jury. The jury first returned two verdicts. One was in favor of the plaintiff against Shafer, Zahniser and Warren in which the plaintiff was awarded for personal injuries the sum of one dollar and for 'damage to automobile in the sum of $0.' The second verdict was in favor of defendants Shafer, Zahniser and Warren on cross-complaint; the material portion of that verdict reads as follows:
'* * * find for the defendants and against the cross-defendants Cheatham and wife and assess their damages as follows:
'To J. Dewey Shafer for personal injuries in the sum of ($0) Dollars,
'To Zahniser and Warren, a partnership, for damages to automobile in the sum of $58.93.'
The trial court refused to receive these verdicts on the ground that they were inconsistent. The jury again retired and later returned verdicts as follows: One in favor of the defendants; one in favor of plaintiff Haney on cross-complaint of Shafer, Zahniser and Warren; and one which the jury first returned, in favor of Zahniser and Warren on their cross-complaint for damages to their automobile in the sum of $58.93 and denying recovery to Shafer for personal injuries. That is, as to plaintiff the...
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