Monjay v. Evergreen School Dist. No. 114

• Decision Date: 11 June 1975
• Docket Number: No. 1183--II,1183--II
• Citation: 13 Wn.App. 654,537 P.2d 825
• Parties: Geneva A. MONJAY, Respondent, v. EVERGREEN SCHOOL DISTRICT NO. 114, Appellant, General Motor Corporation and Ed Randall Chevrolet Company, Defendants.
• Court: Washington Court of Appeals

Page 654

13 Wn.App. 654

537 P.2d 825

Geneva A. MONJAY, Respondent, v. EVERGREEN SCHOOL DISTRICT NO. 114, Appellant General Motor Corporation and Ed Randall Chevrolet Company Defendants.

No. 1183--II.

Court of Appeals of Washington, Division 2.

June 11, 1975.

Review Denied Sept. 23, 1975.

William N. Church, Brian D. Leahy, Vancouver, for appellant.

Duane Lansverk, Landerholm, Memovich, Lansverk, Whitesides, Marsh, Morse & Wilkinson, Vancouver, for respondent.

PEARSON, Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff, Geneva Monjay, when the defendant's school bus struck her car.

Prior to trial, plaintiff entered into a covenant not to sue with General Motors Corporation and Ed Randall Chevrolet, the manufacturer and dealer of the school bus, respectively. Pursuant to that covenant, General Motors and Ed Randall Chevrolet agreed to pay the plaintiff $33,333 at the conclusion of the trial against the defendant school district. Plaintiff agreed to dismiss the covenanting defendants from the action, and agreed further that should she obtain a judgment against the school district, she would reimburse General Motors and Ed Randall Chevrolet in the amount recovered by her from the school district, to a maximum of $33,333. Plaintiff was also given the option of settling with the school district, and an alternative reimbursement formula was set out in the agreement. That formula provided that should plaintiff and the school district settle for less than $16,666, then General Motors and Ed Randall Chevrolet would match the amount of the settlement. Plaintiff should therefore have to settle for at least $11,111 in order to obtain compensation for her injuries in the amount of $33,333. If she could not procure such a settlement, then she would be compelled to litigate. She could not simply dismiss her case against the school district. ¹

The case proceeded to trial against Evergreen School District and a directed verdict was entered in plaintiff's favor. The jury assessed damages at $32,152.50.

On appeal, the school district argues that (1) the question We agree with the school district's first contention, and we partially agree with its second argument. We will first consider the propriety of the directed verdict.

of its negligence was one for the jury; or alternatively, (2) that the conditional reimbursement clause in the covenant not to sue should be stricken for reasons of policy, and that the amount which plaintiff received from General Motors and Ed Randall Chevrolet should be [537 P.2d 827] credited against the amount of the judgment entered against it, so that it owes plaintiff nothing.

The school district's defense to this action is that the accident was caused by a failure of the power braking system which had occurred despite the fact that it had adhered to a reasonable program of servicing and inspection. The driver of the bus testified that she had checked the brakes prior to leaving the garage. Some time prior to the accident, General Motors had serviced the brake system as part of a recall campaign. It also recalled buses of the same design subsequent to the accident, to lengthen the vacuum assist hose. Additionally, the bus was regularly serviced every 2000 miles.

The bus driver stated that the accident occurred when she attempted to stop at a stop sign and the brakes suddenly gave out. She depressed the brake pedal several times, and it went all the way to the floor. She testified that just prior to the accident she had driven several blocks and had experienced no difficulty. This was the first time the driver had driven this particular bus.

Mr. Al Koons, the shop foreman for the school district, and an experienced mechanic, visited the scene shortly after the accident occurred. He found the vacuum assist hose disconnected from the power vacuum unit and the left front brake line severed. It was established at trial that the left front brake line became severed as a result of the accident. But it is the defendant's theory that the disconnected vacuum assist hose was the cause of the accident.

This case falls squarely within the rule announced in Goldfarb v. Wright, 1 Wash.App. 759, 463 P.2d 669 (1970).

There it was held that plaintiff has made a prima facie case when it is shown that the defendant failed to heed a traffic signal. If the defendant asserts brake failure as a defense, he has the burden of proving the reasons for the brake failure, so as to enable the jury to determine whether or not the defect was reasonably discoverable. A bare allegation or statement of brake failure is insufficient. See Curtis v. Blacklaw, 66 Wash.2d 484, 403 P.2d 358 (1965).

A directed verdict could only be held proper in this case if, after viewing the evidence in a light most favorable to the defendant, it can be said that there is no substantial evidence showing the cause of the brake failure. See Shasky v. Burden, 78 Wash.2d 193, 470 P.2d 544 (1970); Amsbury v. Cowles Publishing Co., 76 Wash.2d 733, 458 P.2d 882 (1969); Martin v. Huston, 11 Wash.App. 294, 522 P.2d 192 (1974); Goldfarb v. Wright, supra.

Plaintiff argues that there was no substantial evidence that the disconnection of the vacuum assist hose was the cause of the brake failure, explaining that the failure of the power braking system would not cause a total brake failure because the mechanical braking system would still function. Witness Koons testified that the power failure would not cause the brake pedal to go all the way to the floor. Thus contends the plaintiff, the defendant's theory is wholly inconsistent with the driver's testimony that the brake pedal went all the way to the floor when she tried to stop.

But plaintiff overlooks Koons's statements that a driver who has never experienced a power brake failure might, in a crisis situation, have the sensation of the brake pedal going to the floor without a response. Koons testified that in his experience as a garage mechanic, he had customers who informed him that their brakes had totally failed when in fact only the power system had failed. He added that there would be a 75 percent loss of braking power with the failure of the power assist, and that the only way to stop a bus under such circumstances would be by 'jumping' on the brake pedal.

In view of Koons's explanation of the inconsistency of defendant's theory with the driver's testimony, we find that there was substantial evidence that the brake failure resulted from a failure of the power assist which was caused by the disconnected vacuum assist hose. Accordingly, we hold the trial court erred in entering the directed verdict.

Defendant's second argument in this appeal is that the amount of plaintiff's judgment in this case should be diminished by the amount paid to the plaintiff by General Motors and Ed Randall Chevrolet pursuant to the covenant not to sue.

The pertinent provisions of this agreement stated:

General Motors Corporation and Ed Randall Chevrolet Company agree to guarantee Monjay a recovery in her lawsuit arising out of the automobile-bus collision on April 17, 1970 of at least $33,333.34 (each guaranteeing 1/2 of said sum). General Motors Corporation and Ed Randall Chevrolet Company agree to pay said sum to Monjay Upon conclusion of the trial against Evergreen School District.

If Monjay takes her case against Evergreen School District to trial and wins, Monjay agrees to repay General Motors Corporation and Ed Randall Chevrolet Company an amount equal to the recovery from Evergreen School District up to a total of $33,333.34 (to be paid within 15 days of payment from Evergreen School District), less out-of-pocket trial costs incurred by Monjay and less increased attorney's fees incurred by Monjay as a result of going to trial.

(Italics ours.) Another clause in the agreement declared that a release of Evergreen School District was not intended.

It is of course axiomatic that a plaintiff cannot have a multiple recovery for a single wrong. Thus, if payment received by the plaintiff from one tort-feasor constitutes the full satisfaction of the obligation, he cannot thereafter proceed against the other tort-feasors. ²

A covenant not to sue will be treated as a release of all tort-feasors if reasonably compensatory consideration has been paid by one or more tort-feasors to the plaintiff. Mills v. Inter Island Tel. Co., 68 Wash.2d 820, 829, 416 P.2d 115 (1966); Hargreaves v. American Flyers Airline Corp., 6 Wash.App. 508, 494 P.2d 229 (1972). And in Christianson v. Fayette R. Plumb, Inc., 7 Wash.App. 409, 499 P.2d 72 (1972) it was held that amounts paid by one joint tort-feasor pursuant to a covenant not to sue diminish the amount of plaintiff's claim against the remaining tort-feasors. It should be noted, however, that as yet there exists no right of contribution among joint tort-feasors in this state.

Deutsch v. West Coast Mach. Co., 80 Wash.2d 707, 497 P.2d 1311 (1972); Rufener v. Scott, 46 Wash.2d 240, 280 P.2d 253 (1955); Duncan v. Judge, 43 Wash.2d 836, 264 P.2d 865 (1953).

Defendant argues that fully compensatory consideration has been paid on plaintiff's claim, pursuant to the terms of the covenant. In order to reach that conclusion, it would be necessary for us to strike the conditional repayment clause for reasons of policy, but uphold the remainder of the agreement so that plaintiff would be entitled to retain, without obligation, the $33,333 paid pursuant to the agreement. Although we agree with the school district's argument that the conditional repayment clause should be stricken on policy grounds, it does not necessarily follow that the school district should be able to totally shift liability back to General Motors and Ed Randall Chevrolet.

The few cases which have considered the validity of an agreement of this type (sometimes called loan agreements or loan receipts) have reached differing results. ³ We are particularly impressed, however,...