Husky Refining Co. v. Barnes, 9710.

• Citation: 119 F.2d 715,134 ALR 1221
• Decision Date: 07 May 1941
• Docket Number: No. 9710.,9710.
• Parties: HUSKY REFINING CO. v. BARNES et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

134 ALR 1221, 119 F.2d 715 (1941)

HUSKY REFINING CO. v. BARNES et al.

No. 9710.

Circuit Court of Appeals, Ninth Circuit.

May 7, 1941.

O. R. Baum and Ben Peterson, both of Pocatello, Idaho, and W. G. Bissell and Branch Bird, both of Gooding, Idaho, for appellant.

T. D. Jones and Ralph H. Jones, both of Pocatello, Idaho, for appellees.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

This is a suit by the heirs of Lester Barnes to recover damages for his wrongful death. There was a verdict in their favor for $10,000, and from the judgment thereon the defendant appeals.

Barnes was a motorman of a motor coach or train operated by the Union Pacific Railroad Company. He was killed near Rigby, Idaho, in a crossing collision between the motor coach and a gasoline truck operated by appellant. The complaint alleged as the ground for recovery that the truck was negligently driven upon the crossing into the path of the oncoming coach. The answer alleged as a defense that the collision was the consequence, in whole or in part, of the negligence of Barnes in operating the coach and of the railroad company in failing to provide a safe crossing.

The evidence need not be considered in detail. It was in line with the respective theories of the parties as disclosed in their pleadings; and appellant does not challenge the sufficiency of the showing that the driver of its truck was negligent. Its argument for a reversal is bottomed mainly on the claimed release of the railroad company, which company is said to be a joint tortfeasor. Motion for a directed verdict on this ground was denied.

Some time after the accident an instrument denominated a "covenant not to sue" was executed by Barnes' administratrix to the railroad company on behalf of the heirs. By this instrument the administratrix, in consideration of the payment to her of $3,500,¹ did "covenant and agree" that no suit or other litigation for damages for the death of Barnes would be instituted against the railroad company or its employees, "within the contemplation and purpose of the Federal Employers' Liability Act." It provided that should any action be brought "in breach of this covenant" the instrument might be pleaded by the company or its employees as a full and complete defense. Appellant argues that this contract must be construed as a release; that the railroad company was a joint tortfeasor; and that, since the release of one joint tortfeasor releases all, the contract is a bar to the present suit.

We think it unnecessary to consider whether the contract is a release; for the purpose of the decision we may assume that it is. But plainly appellant and the railroad company were not joint tortfeasors. Assuming that the latter was negligent in failing to provide a safe crossing, its negligence was an independent and concurrent thing. Between appellant and the railroad there was no concert of action, common design or duty, joint enterprise, or other relationship such as would make them joint tortfeasors. Young v. Anderson, 33 Idaho 522, 196 P. 193, 50 A.L.R. 1056; Bunker Hill & Sullivan M. & C. Co. v. Polak, 9 Cir., 7 F.2d 583. See 25 Cal. L.Rev. 413, 429, 430; 24 Cal.L.Rev. 891, 892, 893. Where the independent tortuous acts of two persons combine to produce an injury indivisible in its nature, either tortfeasor may be held for the entire damage — not because he is responsible for the act of the other, but because his own act is regarded in law as a cause of the injury. Miller v. Union Pacific R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Washington & G. R. Co. v. Hickey, 166 U.S. 521, 17 S.Ct. 661, 41 L.Ed. 1101; Cordiner v. Los Angeles Traction Co., 5 Cal.App. 400, 91 P. 436; The Koursk 1924 P. 140, 40 T.L.R. 399, 131 L.R. 700; Restatement, Torts, vol. 2, § 430, Comment d; 19 Cal. L.Rev. 630; 25 Cal.L.Rev. 413, 432; 24 Col.L.Rev. 891; 21 Minn.L.Rev. 616. In the case of such independent concurring torts the release of one wrongdoer does not release the other. Young v. Anderson, supra, and cases there cited.

A further point under this head remains to be considered. In the case of Young v. Anderson, supra, the Idaho court, speaking through Judge Rice, said that, whether the tortfeasors be joint or independent, the injured party is entitled to no more than compensation for his injury; and that consideration received from one, for the release of any claim against him, operates to reduce pro tanto the amount recoverable from the other. That, of course, is the rule generally.²

Here the court instructed the jury that the effect of the covenant "is that in the event the jury finds, from the evidence, that the plaintiffs are entitled to recover from the defendant, then, in...