Jenkins v. Southern Pac. Co., 7412.

• Decision Date: 07 January 1937
• Docket Number: No. 7412.,7412.
• Citation: 17 F. Supp. 820
• Court: U.S. District Court — Southern District of California
• Parties: JENKINS et al. v. SOUTHERN PAC. CO. et al.

17 F. Supp. 820

JENKINS et al. v. SOUTHERN PAC. CO. et al.

No. 7412.

District Court. S. D. California, Central Division.

January 7, 1937.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

L. H. Phillips, of Los Angeles, Cal., for plaintiffs.

W. I. Gilbert, of Los Angeles, Cal., for defendants Southern Pac. Co. and Fred M. Dolsen.

Robert Brennan, M. W. Reed, Leo E. Sievert, and H. K. Lockwood, all of Los Angeles, Cal., for defendants Pullman Co., H. J. Hatch, and Edward E. Myers.

Livingston & Livingston and Lawrence Livingston, all of Los Angeles, Cal., for defendant A. J. Kash.

YANKWICH, District Judge (after stating the facts as above).

The second amended complaint, on which the action comes to trial, sets forth two causes of action. The first cause of action is against all the defendants, including the defendant Kash, who committed the assault. And while there is a different violation of duty alleged as to each of the several defendants, the cause of action is based upon the same assault on the deceased. The cause of action is stated jointly against all the defendants, and the death which resulted is traceable to the acts of all.

There is an allegation in paragraph XV, that the action is brought against the Southern Pacific Company under the Federal Employers' Liability Act (chapter 2, section 51 et seq., title 45 U.S.C.A.), but the act around which the cause of action turns is still the assault committed, or allowed to be committed, or contributed to negligently by the defendants, by their doing or failing to do certain things.

The second cause of action is against Kash alone. Such joinder is allowable under the new rules of joinder. California Code of Civil Procedure, §§ 379, 379a, 379b; and see Peters v. Bigelow (1934) 137 Cal. App. 135, 30 P.(2d) 450; Yankwich: Joinder of Parties In the Light of Recent Statutory Changes (1929) 2 So.Cal.Law Review, 315, 337; Comment, Joinder of Parties (1934) 7 So.Cal.Law Review, 470. However, the cause of action is still the same. It charges Kash with the same act of assault.

And while, in the prayer, separate damages are asked, the second cause of action is merely a restatement, as to the defendant Kash, of the same cause of action wherein he is joined with the others, the thought being, I assume, that circumstances might arise showing the several liability of one defendant rather than joint liability of him and the others. There is no negligence charged in the second cause of action, as Kash is charged merely with the doing of a certain act — assault. The first cause of action is based upon the same assault. But the defendants are tied to it by allegations of failure to do certain acts, or failure to prevent the assault. Each party is sought to be held because there was an assault of one man, for which the others became liable.

We have exactly the same situation as in an automobile accident, wherein the driver of an automobile does a negligent act, and that negligence is imputed to the owner of the automobile because he is the owner or has allowed the driver to drive the car. However, it is still the same cause of action. I think, therefore, that there is but one cause of action and that several parties contributed to it in various manners. But what determines the joint, or joint and several liability, is the fact that it arises out of a single state of facts, to which each of the defendants is related, in some manner, some as employers, some as agents or employees, some as common carriers, and some in other or different capacities. The situation is akin to other joint torts, such as libel. The person who composes the libel is liable because he wrote it; the editor of the newspaper which prints the libel is liable because he permitted it to be published, as is also the owner of the newspaper. Still there is one joint or joint and several liability, although each may be held liable upon a different theory of liability.

My summary of the pleading would be that the theory of liability differs as between the several defendants, some being held on one theory, and some on another, but that the cause of action is essentially the same, that is, a tort. A tort indulged in by one person and for which the others are sought to be bound by reason of their failure to prevent it when it was their duty to do so. Ultimately, the assault is the basis of the right of action. And that was, of course, the same in both causes of action.

I do not think there is any disagreement between counsel, or between counsel and the court, as to the principles of law laid down by the cases. The difference is in their application. The cases see Chetwood v. California Nat. Bank (1896) 113 Cal. 414, 45 P. 704, 707; Flynn v. Manson (1912) 19 Cal.App. 400, 126 P. 181; Adams v. Southern Pacific Co. (1928) 204 Cal. 63, 266 P. 541, 57 A.L.R. 1066; Hawber v. Raley (1928) 92 Cal.App. 701, 268 P. 943; Bogardus v. O'Dea (1930) 105 Cal. App. 189, 287 P. 149, 150; Bee v. Cooper (1932) 217 Cal. 96, 17 P.(2d) 740; Kincheloe v. Retail Credit Co. (1935) 4 Cal. (2d) 21, 24, 46 P.(2d) 971; Shea v. San Bernardino (Cal.Sup.1936) 62 P.(2d) 365 lay down certain fundamental principles. They are: Any release, retraxit, or abandonment of the cause of action, made for a consideration, against one joint tort-feasor, will release all others, whether it was the intention of the parties to do so or not. And this although the agreement (as was the case in Flynn v. Manson, supra, and Bee v. Cooper, supra) states that the settlement shall not, in any way, affect the cause of action against any other person than the one mentioned in the instrument. The release must be made with the understanding that it is accepted in full satisfaction. If the damage is severable, payment by one does not release the others. See Wallner v. Barry (1929) 207 Cal. 465, 279 P. 148.

A mere covenant not to sue, which does not contain words amounting to a release of the cause of action, or which negatives such release, is not effective for the purpose of releasing other joint tort-feasors. Hawber v. Raley, supra; Kincheloe v. Retail Credit Co., supra; City of Chicago v. Babcock (1892) 143 Ill. 358, 32 N.E. 271, 272; Johnson v. Pickwick Stages System (1930) 108 Cal.App. 279, 283, 291 P. 611; The Thomas P. Beal (D. C.Wash. 1924) 298 F. 121, 122; Carey v. Bilby (C.C.A.8, 1904) 129 F. 203, 206.

The question, therefore, in this, as in every case, is whether the particular instrument was one of release, or merely a covenant not to sue.

In Bee v. Cooper, supra, which I tried, and which was an action for misappropriation or unlawful expenditures of moneys, against several corporate directors, pending the action, the plaintiff accepted a sum of money from some of the directors, and agreed to dismiss the action as to them. It was argued that the agreement was merely an agreement not to sue. But the court sustained me in holding that the instrument disclosed very definitely that it was the intention of the parties thereto to settle fully, compromise, and dismiss the cause of action sued on, as to certain defendants. The dismissal, the court held, was on the merits and was intended to settle the differences and obligations between the parties, growing out of the cause of action set forth in the complaint.

Ordinarily, a mere dismissal against one of several defendants, or the dismissal of a cause of action against one or several joint tort-feasors will not release the others. See Johnson v. Pickwick Stages System, supra. The reason why we require more is that where the right of action arises out of the acts of several persons, or several persons are related to the same act, or several persons are joint tort-feasors, the plaintiff has the choice of determining which of the joint actors or tort-feasors he shall sue. He may sue all; he may sue some; or he may sue one of them only. If he does not sue all, the other defendants cannot complain. However, if there is a dismissal, as to one or more, in the form of a retraxit, it affects the cause of action as to the others. If it is made under circumstances which indicate clearly that it was the intention to settle fully and compromise the entire controversy, then it applies to, and releases, all joint tort-feasors, whether sued or not.

The line of demarcation is sometimes very thin. Yet, I believe, that the cases furnish illustrations of contracts which, although the parties themselves sought to denominate "Covenants not to Sue," were held, nevertheless, in the light of the circumstances under which they were made, of their purported meaning, and of what was actually done, to be releases. And this although the word "release" was never actually used in the text.

The best statement of the law in California is contained in Chetwood v. California National Bank, supra, in which a judgment was involved, awarded against several persons, and arising out of a tort. Some of the persons paid a sum of money and the cause was dismissed as to them. The question with which the court was confronted was whether the payment was made upon the judgment, as the release was, doubtless, in consideration of that payment.

The Supreme Court of California, Mr. Justice Henshaw writing the opinion, made this statement:

"Where a joint action is brought against two or more for trespass done, and all are held liable, the judgment must be for joint damages. All legal consequences of a joint judgment must follow. Each is liable for all the damage which the plaintiff has sustained, without regard to their different degrees of culpability, and a release to one discharges all.

"The plaintiff in this case, by accepting $27,500 from the two defendants for and on account of the joint trespass of the three, and by releasing them, has released his claim against the third. In Urton v. Price, 57 Cal. 270, an action for personal injuries occasioned by the explosion of chemicals was brought against Price, the demonstrator at a lecture. The charge...