Masterson v. Berlin St. Ry

• Decision Date: 06 December 1927
• Citation: 139 A. 753
• Parties: MASTERSON v. BERLIN ST. RY. et al. FRASER v. BERLIN ST. RY.
• Court: New Hampshire Supreme Court

139 A. 753

MASTERSON

v. BERLIN ST. RY. et al.

FRASER

v. BERLIN ST. RY.

Supreme Court of New Hampshire. Coos.

Dec. 6, 1927.

[Copyrighted material omitted.]

Transferred from Superior Court, Coos County; Sawyer, Judge.

Joint actions by Pauline Masterson, administratrix, against the Berlin Street Railway and another, and by James A. Fraser against the Berlin Street Railway. The actions were continued on terms, and to the imposition of terms the Berlin Street Railway excepts. Transferred in advance of retrial. Order imposing terms set aside, exceptions relating to pleadings overruled, and exceptions relating to evidence sustained.

Actions for negligence in the collision between a car of the railway and an automobile driven by Praser, and in which the plaintiff's intestate was a passenger.

In the action of the administratrix, Praser was a codefendant. He had liability insurance, and after the action was entered the insurance company, with his consent, paid $500 for her covenant to proceed no further against him in the action, to bring no further action against him, and to indemnify him against any liability on account of the intestate's death. Any claim against the railway for the death was expressly reserved. Entry of neither party as to Fraser was made on the docket, and an amendment of the declaration alleging only the railway's negligence was allowed, subject to exception. Exception was also taken to the overruling of the railway's plea that the settlement with Praser discharged its liability.

A jury trial of the two actions together was begun, and a preliminary ruling made that no evidence in any way of the claim of Eraser's negligence as made in the action of the administratrix or of the settlement made in his behalf would be received and that any offer of any such evidence would result in an order of mistrial on terms. To this ruling the railway excepted in each action, and moved for a continuance of the actions on the ground that the ruling prevented a fair trial. The actions were continued on terms, and to the imposition of terms the railway excepted.

Transferred in advance of a retrial.

Murchie & Murchie and Alexander Murchie, all of Concord, for plaintiffs.

Jesse F. Libby, of Gorham, and Edmund Sullivan, of Berlin, for the railway.

ALLEN, J. When one is injured by joint wrongdoers, a settlement with one of them is presumptively in full satisfaction for the injury. The amount paid presumably represents the injured party's claim or estimate of the extent of his damages. And a release given to one wrongdoer in satisfaction of an injury is to be construed as showing payment in full for the damage done. Carpenter v. W. H. McElwain Co., 78 N. H. 118, 97 A. 560. Authorities are not needed to support the statement that in such case the other parties are thereby released, since the injured party may have no more than satisfaction for the injury. But if the settlement with one is not intended as full satisfaction, the others are released only to the extent of the amount paid. The parol evidence rule bars evidence of an intention contrary to that shown by a written release. Carpenter v. W. H. McElwain Co., supra. If the release is oral and its terms when found show that full compensation was intended, the resulting release of the other wrongdoers follows as in the case of a written release given in full satisfaction. But when a release, either written or oral, does not imply full satisfaction for the injury, the amount paid for it discharges the other wrongdoers only to the extent of such amount. While an injured party may have only one full compensation for his injury, there is no reason why he should not have that compensation. And there is no policy of the law to prevent him from obtaining part of the compensation from one of the wrongdoers and the balance from the others.

In overruling the railway's plea, the court correctly construed the agreement between the administratrix and Fraser as showing a settlement with Fraser by which he was released on part payment of the estimated damage done by the injury. Covenants not to sue or not further to maintain an action already brought are usually so construed. Snow v. Chandler, 10 N. H. 92, 34 Am. Dec. 140; eases cited in Carpenter v. W. H. McElwain Co., supra. And the limited effect of the covenant is emphasized when the releasor's rights against others are expressly reserved. Carpenter v. W. H. McElwain Co., supra, page 120 (97 A. 560). Further, while the wrong here alleged is generally called and embraced as a joint wrong, it was one of concurrent negligence of parties acting separately on their own account, and not in co-operation. One was not liable for the negligence of the other. While they were sued jointly, they might have been sued separately and separate judgments obtained, in which case a satisfaction of one judgment would satisfy the other only to its amount. Hyde v. Noble, 13 N. H. 494, 38 Am. Dec. 508. Obviously the claim against one might be much stronger and better supported than that against the other. The difference in proof of the negligence of each party, when the injury results from the independent wrongs of a number of parties, reinforces the argument for the usual construction of settlement agreements phrased as this one was.

The exception to the allowance of the amendment to the declaration must also be overruled. Since amendment might be made by striking out Fraser's name from the writ as a defendant (Smith v. Brown, 14 N. H. 67), permission to amend the declaration so that it would conform with the result of a remaining sole defendant was not necessarily an injustice, if it could be found otherwise. The railway's claim of right to present the unamended writ in evidence is not affected by the amendment, and the validity of that claim depends upon other considerations.

The exceptions to the ruling excluding evidence of the claim by the administratrix of Eraser's negligence are to be treated separately in respect to the two actions. Whether or not the actions are to be retried together, the competency of the evidence is to be considered in respect to each plaintiff.

In Fraser's action, the claim of his negligence made in the writ in the other action is not admissible as evidence of his liability. It is hearsay, and its incorporation in the writ does not clothe it with admissibility. While the settlement of a claim may be shown if it implies an admission of liability, it may not, if it is only a "purchase of peace." Colburn v. Groton, 66 N. H. 151, 160, 28 A. 95. 2 L. R. A. 763....