Hicklin v. Anders

• Decision Date: 18 February 1953
• Citation: 253 P.2d 897,201 Or. 128
• Parties: HICKLIN v. ANDERS et al.
• Court: Oregon Supreme Court

Page 897

253 P.2d 897

201 Or. 128

HICKLIN v. ANDERS et al.

Supreme Court of Oregon, En Banc.

Submitted Jan. 23, 1953.

Decided Feb. 18, 1953.

Meindl & Mize, Ray Mize and R. E. Kriesien, of Portland, for the motion.

Ray G. Brown, of Portland, contra.

LUSK, Justice.

The case is before the court on motion of respondent, William H. Anders, to dismiss the appeal.

The action was for personal injuries. The appellant, Everett Hicklin, on April 2, 1952, recovered judgment for $15,000 against the respondents, Anders and Elbert G. Mulkey, administrator of the Estate of James Joseph Bannister, deceased, hereinafter called the administrator. (Cleo Bannister was later appointed administratrix in the place of Mulkey.) On motion the court set aside the verdict against Anders and entered judgment in his favor notwithstanding the verdict. From that judgment Hicklin appealed, and the administrator likewise appealed from the judgment against him. Hicklin commenced garnishment proceedings against Anders, the administrator, and Pacific Indemnity Company, the administrator's insurance carrier, and recovered a judgment against the garnishee for $5,084.77. Pacific Indemnity Company took an appeal from that judgment. While these various appeals were pending Hicklin and his attorney, under date of January 12, 1953, executed an instrument designated 'Covenant' by which they covenanted and agreed, in considertion of $4,750, not to proceed further against Pacific Indemnity Company or the administrator on account of Hicklin's injuries

'or on account of said judgment for damages or on account of said judgment in said garnishment proceeding, and that said Everett Hicklin will not issue or cause to be issued or served further execution against either said Pacific Indemnity Company or said estate of James Joseph Bannister, deceased, or anyone on their behalf on account of said matters, and will not otherwise sue said Pacific Indemnity Company or said Cleo Bannister as said administratrix or individually, or said Elbert G. Mulkey as such administrator, for or on account of said injuries or anything arising out of the same or on account of said judgments or either of them.'

The instrument further provided:

'It is specifically understood and agreed, however, that this covenant, in no way restrains, restricts or prohibits said Everett Hicklin or anyone on his behalf from continuing said appeal as against said William H. Anders and proceeding with said action against said William H. Anders, it being expressly understood that it is the intention of said Everett Hicklin to continue with said appeal against said William H. Anders to a final conclusion and to continue with said action against said William H. Anders, both in said Supreme Court and said Circuit Court, and if possible to recover the balance of said judgment as against said William H. Anders and this covenant is not to be construed or treated as a release or accord and satisfaction of any claim or demand which said Everett Hicklin has or claims to have against said William H. Anders.'

Contemporaneously, the garnishment proceedings and the administrator's appeal to this court were dismissed on stipulation of the parties, and Hicklin, by his attorney, executed a satisfaction of the judgment against Pacific Indemnity Company, garnishee, in the sum of $5,084.77. The instrument of satisfaction further provides that Hicklin

'does not satisfy the judgment made and entered herein on or about the 3rd day of April, 1952 in favor of plaintiff and against the above named William H. Anders and Elbert G. Mulkey as such administrator in the amount of $15,000.00 together with certain costs and disbursements, but said Everett Hicklin by his said attorney, does hereby acknowledge receipt upon said $15000.00 judgment so made and entered on or about April 3, 1952, of the sum of $4,750.00 in partial satisfaction only of said judgment for $15,000.00 together with costs and disbursements.'

To support his motion Anders relies on the rule that the release of one or two or more joint tort-feasors releases all. Stires v. Sherwood, 75 Or. 108, 145 P. 645. He concedes that in this state, as in most other jurisdictions, this rule has no application to a covenant not to sue. McKay v. Pacific Bldg. Materials Co., 156 Or. 578, 68 P.2d 127; Murray v. Helfrich, 146 Or. 602, 30 P.2d 1053; Keadle v. Padden, 143 Or. 350, 362, 366, 20 P.2d 403, 22 P.2d 892. But he argues that in this case the suit is an accomplished fact and therefore an agreement not to sue is meaningless; and that the 'Covenant' is in fact an accord and satisfaction which operates as a discharge of the judgment and of both joint tort-feasors, citing 1 Am.Jur. 257, Accord and Satisfaction, §§ 8, 73; Clay v. Hoysradt, 8 Kan. 74; Cooper v. Sagert, 111 Or. 27, 223 P. 943; Restatement, Torts, § 886.

It is sufficient to say of the decisions cited that they are not in point. As to the claim that what the parties did amounted to an accord and satisfaction, precisely the same argument was made in McKay v. Pacific Bldg. Materials Co., supra, with respect to the covenant not to sue involved in that case, and was rejected. The only difference between the two cases is that in the one the agreement was made before judgment and in the other after judgment. In the McKay case payment was made in settlement in order to get rid of an unliquidated claim, and in this case in order to get rid of the consequences of a judgment from which an appeal had been taken and was pending. In both the intention is made clearly to appear that the money was not accepted in satisfaction of the entire claim and that the settlement made with one defendant should not affect the injured party's rights against the other. According to 45 Am.Jur. 702, Release, § 37, 'There appears to have been...