Moore v. Missouri Pacific R.R., 88-320

Citation299 Ark. 232,773 S.W.2d 78
Decision Date26 June 1989
Docket NumberNo. 88-320,88-320
Parties, 6 A.L.R.5th 1188 W. Lee MOORE and Shirley Barnett, as Surviving Heirs of Winnie Ruth Thomas, Appellants, v. MISSOURI PACIFIC RAILROAD and John C. Peterson, Jr., Appellees.
CourtSupreme Court of Arkansas

Grisham A. Phillips, Benton, for appellants.

Friday, Eldredge & Clark, by Herschel H. Friday, Frederick S. Ursery and James C. Baker, Jr., Little Rock, for appellees.

HOLT, Chief Justice.

This appeal involves an issue of first impression in Arkansas: Whether a general release discharging "any and all persons, associations and corporations, whether herein named or referred to or not" is effective to release potential joint tortfeasors not named or specifically identified in the release. The trial court granted summary judgment on the basis that a general release is effective to release such parties. It erred in doing so. Accordingly, we reverse and remand.

On September 13, 1984, an automobile-train collision occurred in Benton, Arkansas. The driver of the car, Mary A. Richardson, was killed instantly. A passenger in the car, Winnie Ruth Thomas, was severely injured. On or about September 25, 1984, an insurance adjustor for Richardson's liability carrier, Sentry Insurance, approached appellant W. Lee Moore, Thomas' son, at the hospital where Winnie Thomas was a patient and told him that Mary Richardson had $25,000.00 in insurance and that "it was the most they could get so they might as well go ahead and settle." On October 2, 1984, Thomas executed a power of attorney to Lee Moore, and on October 24, 1984, Moore, on behalf of Thomas and without benefit of counsel, released Mary Richardson for the sum of $25,000.00. The release contained the following language:

That Winnie Ruth Thomas of 513 River St., Benton, Ark., for and in consideration of the sum of Twenty Five Thousand Dollars, ($25,000.00), the receipt and sufficiency of which is hereby acknowledged, does hereby remise, release and forever discharge Mary A. Richardson (handwritten), 1200 W. Pine # 33, Benton, Ark., his successors and assigns, and/or his, her, their heirs, executors and administrators, and also any and all other persons, associations and corporations, whether herein named or referred to or not, and who, together with the above named, may be jointly or severally liable to the Undersigned, of and from any and all, and all manner of, actions and causes of action, rights, suits, covenants, contracts, agreements, judgments, claims and demands whatsoever in law or equity, including claims and contribution, arising from and by reason of any and all Known and Unknown, Foreseen and Unforeseen bodily and personal injuries or death, damage to property, and the consequences thereof, which heretofore have been, and which hereafter may be sustained by the Undersigned or by any and all other persons, associations and corporations, whether herein named or referred to or not, and especially from all liability arising out of an occurrence that happened on or about this the 13 day of September, 1984, at or near State Highway 183 and State Highway # 35 in Benton, Ark. [Emphasis added.]

Winnie Thomas died on or about May 15, 1985. Thereafter, appellants Lee Moore and Shirley Barnett, as surviving heirs of Winnie Thomas, filed suit against appellees Missouri Pacific Railroad and John C. Peterson, Jr., the engineer of the train, claiming that Thomas' injuries and death were caused by (1) the negligence of Missouri Pacific in failing to maintain the railroad crossing and (2) the negligence of Peterson, as agent of Missouri Pacific, in failing to keep a proper lookout, in failing to give a proper warning, in operating a locomotive at an excessive rate of speed, and in failing to keep his train under proper control.

On November 24, 1986, Missouri Pacific and Peterson filed a motion for summary judgment on the ground that the release executed by Thomas and Moore on behalf of Mary Richardson inured to the benefit of Missouri Pacific and Peterson. In response, Moore and Barnett filed an affidavit signed by Moore stating that it was not his intention to release any party from liability other than Mary Richardson. In addition, they filed an affidavit signed by Jerri Delamar, a reading teacher, stating that it was her opinion that Lee Moore is "capable of reading on no higher than a fourth grade level." The trial court granted the motion. From this order, Moore and Barnett appeal.

For reversal, they contend that the trial court erred in granting summary judgment on the basis that the general release executed by Moore on behalf of Mary Richardson and "any and all persons, associations and corporations, whether herein named or referred to or not" was effective to discharge Missouri Pacific and Peterson. For the reasons stated below, we agree.

The determinative issue before us is as follows: Whether a release discharging "any and all persons, associations and corporations, whether herein named or referred to or not" is effective to release potential joint tortfeasors not named or specifically identified in the release.

At common law a release of one tortfeasor automatically released all other tortfeasors jointly liable for the wrong. Magnolia Petroleum Co. v. McFall, 178 Ark. 596, 12 S.W.2d 15 (1928). See also Jones v. Chism, 73 Ark. 14, 83 S.W. 315 (1904). The rationale for this doctrine was that where there has been a release of one tortfeasor, the cause of action is satisfied and no longer exists. Magnolia, supra.

In 1941 Arkansas changed this common law rule with the adoption of section four of the Uniform Contribution Among Joint Tortfeasors Act, currently codified as Ark.Code Ann. § 16-61-204 (1987). This provision provides as follows:

A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. [Emphasis added.]

Section four of the Uniform Act is now law in twenty states besides Arkansas. 1 See Uniform Contribution Among Joint Tortfeasors Act, 12 U.L.A. 71 (Supp.1989); Note, Contracts, Parol Evidence in Release Forms: The Problem of "Boilerplate" Language, 6 Miss.C.L.Rev. 189 (1986). At least twelve jurisdictions have enacted statutes with language substantially similar to that in Ark.Code Ann. § 16-61-204. 2 Two states have enacted statutes based on the Uniform Act, but these statutes do not have equivalents of the Act's section four pertaining to releases. 3

Courts interpreting statutes virtually identical to Ark.Code Ann. § 16-61-204 have taken three separate approaches in determining whether a release which in essence discharges the world at large is effective to release joint tortfeasors not named or specifically identified in the release.

A number of these courts have taken the position that a general release discharging all other parties who might be liable for damages in addition to a named tortfeasor is sufficient to release a joint tortfeasor not named or specifically identified in the release. Morison v. General Motors Corp., 428 F.2d 952 (5th Cir.1970) (applying Ark.Stat.Ann. § 34-1004 (Repl.1962), currently Ark.Code Ann. § 16-61-204 (1987)); Douglas v. United States Tobacco Co., 670 F.2d 791 (8th Cir.1982) (applying Ark.Stat.Ann. § 34-1004 (Repl.1962)); Auer v. Kawasaki Motors Corp., USA, 830 F.2d 535 (4th Cir.1987) (applying Md.Ann.Code art. 50, § 19 (Repl.1986)); Doganieri v. United States, 520 F.Supp. 1093 (N.D.W.Va.1981) (applying W.Va.Code Ann. § 55-7-12 (Repl.1981)); Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961); Johnson v. City of Las Cruces, 86 N.M. 196, 521 P.2d 1037 (Ct.App.1974). See also Mussett v. Baker Material Handling Corp., 844 F.2d 760 (10th Cir.1988) (applying Okla.Stat.Ann. tit. 12, § 832 (1988)); State Farm Mut. Auto Ins. Co. v. Reynolds, 676 F.Supp. 106 (W.D.Va.1987) (applying Va.Code Ann. § 8.01-35.1(A)(1) (Supp.1987)); Liberty v. J.A. Tobin Construction Co., Inc., 512 S.W.2d 886 (Mo.App.1974). This position has been called the "flat bar" rule. See McInnis v. Harley-Davidson Motor Co., Inc., 625 F.Supp. 943 (D.R.I.1986).

Other courts have adopted the "intent" rule. Pursuant to this rule, a boilerplate discharge of the world at large does not have the effect of automatically releasing unnamed tortfeasors; instead, the release will serve that purpose if and to the extent that the parties so intended. McInnis, supra (applying R.I.Gen.Laws § 10-6-7 (1985)); Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla.1980); Flanagan v. State of Florida Dept. of Transportation, 532 So.2d 714 (Fla.Dist.Ct.App.1988). See also Manos v. Trans World Airlines, Inc., 295 F.Supp. 1166 (N.D.Ill.1968) (applying Cal.Civ.Proc.Code § 877(a) (West 1957) and Arizona law)); Sellon v. General Motors Corp., 521 F.Supp. 978 (D.Del.1981) (applying Del.Code Ann. tit. 10, § 6304 (1974)); Hower v. Whitmak Associates, 371 Pa.Super.Ct. 443, 538 A.2d 524 (1988); Blanchfield v. Com. Dept. of Trans., 100 Pa.Commw. 62, 513 A.2d 1156 (1986); Evans v. Tillett Bros. Const. Co., Inc., 545 S.W.2d 8 (Tenn.App.1976). To glean the intent of the parties, these courts look beyond the four corners of the releasing instrument.

The remaining courts have taken the "specific identity" path. These courts conclude that the release of one tortfeasor does not discharge other tortfeasors unless the latter are named in the release or are otherwise specifically identifiable from the face of the instrument. Beck v. Cianchetti, 1 Ohio St.3d 231, 439 N.E.2d 417 (1982); Alsup v. Firestone Tire & Rubber Co., 101 Ill.2d 196, 77 Ill.Dec. 738, 461 N.E.2d 361 (1984); Young v. State, 455 P.2d 889 (Alaska 1969); Alaska Airline Inc. v. Sweat, 568 P.2d 916 (Alaska 197...

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