Matheson v. O'kane
| Decision Date | 28 February 1912 |
| Citation | 97 N.E. 638,211 Mass. 91 |
| Parties | MATHESON v. O'KANE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The writ ran against the defendants jointly. All the defendants appeared and answered severally by general denial.
In October court, 1910, plaintiff, through counsel, filed discontinuances as against defendants Horgan and Townsend trustee, and thereafter defendant O'Kane propounded certain interrogatories to plaintiff, which by the court's direction were answered. From these it appeared that about October 13, 1909, the United States Casualty Company gave plaintiff's attorneys a draft payable to their order for $300, and about August 25, 1909, the Employers' Liability Assurance Corporation gave to them $200, in consideration of which plaintiff executed the following instrument:
Whereupon plaintiff filed a discontinuance against Townsend, trustee, without costs, which provided that it should not be considered as a waiver of any of plaintiff's rights against the other defendants.
Whereupon defendant O'Kane amended his answer so as to allege that since the action was commenced, plaintiff had accepted and received from defendants Townsend and Horgan certain sums of money or other valuable things in full accord and satisfaction of the injury, accident, cause of action and claim, has discontinued her suit against them, and that the acceptance of the aforesaid in accord and satisfaction as aforesaid is a bar to the action against the defendant.
The verdict was directed in favor of defendant O'Kane, and the case was reported to the Supreme Judicial Court. New trial ordered.
Boutwell & Hastings and F. P. Miller, for plaintiff.
Dolan & Dolan and D. E. Hall, for defendant O'Kane.
DE COURCY, J.
The judge of the superior court ruled that as the plaintiff's claim was unliquidated the taking of money and the giving of the papers under seal to the defendants Horgan and Townsend was a bar to any recovery against the defendant O'Kane. The correctness of this ruling is now presented for our determination.
The long-established doctrine that a release of one of several joint tort-feasors operates to discharge all is not applicable here because no release was given by the plaintiff. Bac. Abr. tit. Release (B); Brown v Cambridge, 3 Allen, 474; Aldrich v. Parnell, 147 Mass. 409, 18 N.E. 170. It is equally true that a satisfaction from one discharges all, as the plaintiff has only a single cause of action and is entitled to but one satisfaction in damages. Cooke v. Jennor, Hob 66; Brewer v. Casey, 196 Mass. 384, 82 N.E. 45. The claim argued by the defendant, however, that the plaintiff accepted the money from the other defendants in full satisfaction for her injuries, and thereby discharged her cause of action, does not seem to be raised by the report. The ruling made does not refer to such alleged accord and satisfaction. And when the plaintiff attempted to show that there was no intention to release her claim, the judge excluded the evidence, not on account of the form of the question objected to but on the broad ground that 'the paper speaks for itself.' Even if we assume that this contention is fairly open to the defendant, the question whether the plaintiff accepted the money of the other defendants in full satisfaction of all injuries caused by the accident was one of fact for the jury on the evidence.
The main question in this case is whether the covenants not to sue, given by the plaintiff to two of the three joint tort-feasors, operate as a defense in favor of the defendant O'Kane, who was not a party to the covenants and contributed no part of the consideration therefor. The point in dispute never has been decided in this commonwealth.
The rule of law that a release which discharges the liability of one joint tort-feasor releases the others seems to be based upon the nature of their liability, which is one and indivisible and is necessarily destroyed by the discharge of one. In like manner after satisfaction, although it moved from only one of the wrongdoers, no foundation remains for an action against any one. 11 Ann. Cas. 397, note; 25 Harvard Law Rev. 203.
This basis for the rule does not exist in the case of a covenant not to sue one of several jointly liable. Here the liability is not discharged, and the plaintiff's right of action is retained against all the wrongdoers. For a breach of his covenant not to sue he becomes liable for the damages suffered by the one to whom the covenant was given. It is true that a covenant not to sue an individual debtor may be pleaded in bar to the original cause of action. But this exception was early established in order to avoid circuity of action, as otherwise the court would be burdened with cross-actions for the same damages, one on the original liability and the other on the covenant not to sue. Hodges v. Smith, Cro. Eliz. 623; Lacy v. Kynaston, 12 Mod. 548; Foster v. Purdy, 5 Metc. 442.
The great weight of authority supports the doctrine that a covenant not to sue one of several joint tort-feasors does not operate as a release of the others from liability. Texarkana Telephone Co. v. Pemberton, 86 Ark. 329, 111 S.W. 257; Chicago v. Babcock, 143 Ill. 358, 32 N.E. 271; Chicago & Alton Railway v. Averill, 224 Ill. 516, 79 N.E. 654; Drinkwater v. Jordan, 46 Me. 432; Musolf v. Duluth Edison Electric Co., 108 Minn. 369, 122 N.W. 499, 24 L. R. A. (N. S.) 451; Arnett v. Missouri Pacific Railway, 64 Mo.App. 368; Snow v. Chandler, 10 N.H. 92, 34 Am. Dec. 140; Line & Nelson v. Nelson & Smalley, 38 N. J. Law, 358; Irvine v. Milbank, 56 N.Y. 635; Id., 15 Abb. Prac. (N. S.) 378; Robertson v. Tramel, 98 Tex. 364, 83 S.W. 1098; Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 752; Ellis v. Esson, 50 Wis. 138, 6 N.W. 518, 36 Am. Rep. 830. This distinction between a release and a covenant not to sue has long been recognized in this commonwealth in actions of contract. Shed v. Pierce, 17 Mass. 623; Draper v. Weld, 13 Gray, 585; Kenworthy v. Sawyer, 125 Mass. 28. Generally speaking, it would seem that in this respect the same principle should apply alike to actions ex contractu and those ex delicto, and some of the courts have expressly so held. Duck v. Mayeu, [1892] 2 Q. B. 511; Snow v. Chandler, 10 N.H. 92, 34 Am. Dec. 140.
The confusion and apparent conflict of authorities has not arisen...
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