Lone Star State Life Ins. Co. v. Foster
| Decision Date | 27 June 1952 |
| Docket Number | No. 15360,15360 |
| Parties | LONE STAR STATE LIFE INS. CO. v. FOSTER et al. |
| Court | Texas Court of Appeals |
Dexter W. Scurlock, Fort Worth, for appellant.
G. R. Lipscomb, Fort Worth, for appellee, John E. Foster.
Chas. J. Murray and M. Hendricks Brown, Fort Worth, for appellee, George W. Jary.
This is an appeal by the appellant, Lone Star State Life Insurance Company, from a summary judgment rendered in favor of appellees Foster and Jary. The original petition was filed in the district court of Tarrant County in July, 1950, setting out thirty-six separate and distinct alleged misappropriations or withdrawals by three individuals of funds belonging to the appellant in the aggregate sum of $69,852. It is alleged in the petition that two or all three of the defendants are jointly and severally liable on each and all of the alleged acts of wrongdoing.
On February 5, 1952, the appellees Foster and Jary filed a motion for summary judgment on the ground that the third defendant had been released by the plaintiff and that the release had the effect of releasing all the defendants. On February 13, 1952, the appellant filed a supplemental petition showing that the appellees Jary and Foster were entitled to a credit of $4,050 collected from the third defendant and asked judgment against Foster and Jary for the original amount sued for less such credit; and on February 21, 1952, appellant filed a sworn reply to appellees' motion for summary judgment contenting that the release showed on its face that it released only one defendant and that a right was reserved to prosecute the cause of action against Jary and Foster.
The release agreement in question was executed on August 1, 1950, after the suit was filed, and recited that in consideration of the sum of $4,050 to it paid by Taylor, appellant released all claims, liabilities, causes of action and damages-in any manner based upon or growing out of the participation of the said Taylor in the organization and promotion of said corporation. The agreement further recites that the said Taylor did not admit liability in connection with the claims but made the settlement for the purpose of compromising a disputed claim to avoid court costs, etc. The concluding paragraph of the agreement reads: 'It is further agreed that cause No. 58466-A is to be dismissed as against Taylor with prejudice to the rights of plaintiff of refile the same and at plaintiff's cost.'
On August 2, 1950, the appellant moved the court to dismiss the same styled and numbered cause as to the defendant Taylor on the ground that all matters in controversy in the suit as between plaintiff and defendant Taylor had been fully settled and compromised; and on the same date the court entered its order dismissing the 'above styled cause' as to the defendant Taylor.
On February 22, 1952, the trial court entered summary judgment for the appellees Foster and Jary on a finding the 'the legal effect * * * of the release * * * in favor of another defendant in this cause was to release and discharge the other two named defendants from claims asserted against each of them in such petition * * *.'
The appellant contends the court erred in holding that the release to defendant Taylor had the effect of releasing the other two defendants in the original suit.
It is well settled that a release has the effect of releasing all tort-feasors jointly or severally liable upon the cause of action unless it clearly appears from the terms of the instrument that the amount thereunder shall only partially satisfy the claim, coupled with a reserve of the privilege of pursuing other tort-feasors. It is equally clear that where payment is made to one in settlement of the claim for damages against it only and it is understood that the other tort-feasor is not to be released from liability, but the right is reserved to demand of that other damages, he is responsible for such damages as may exceed the amount paid. St. Louis, I. M. & S. R. Co. v. Bass, Tex.Civ.App., 140 S.W. 860. The intention of the parties is to be gathered from the entire instrument and in such inquiry that construction will be adopted which gives effect to each and every part of the instrument where that is possible. Pennington v. Bevering, Sup., 17 S.W.2d 772, 773.
In construing the release agreement from its four corners, we find that the parties used the words, ...
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