Morison v. General Motors Corporation

• Decision Date: 11 June 1970
• Docket Number: No. 28625.,28625.
• Citation: 428 F.2d 952
• Parties: James S. MORISON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Delaware Corp., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

428 F.2d 952 (1970)

James S. MORISON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, a Delaware Corp., Defendant-Appellee.

No. 28625.

United States Court of Appeals, Fifth Circuit.

June 11, 1970.

Larry Klein, West Palm Beach, Fla., for appellant.

Sam Daniels, Dixon, Bradford, Williams, McKay & Kimbrell, Charles A. Kimbrell, Miami, Fla., for appellee.

Before TUTTLE and CLARK, Circuit Judges, and EDENFIELD, District Judge.

TUTTLE, Circuit Judge:

This is an appeal from a summary judgment for the Defendant, General Motors, based on a release given by the Plaintiff-Appellant to a joint tort feasor following an automobile accident in which Morison suffered serious physical injuries.

The original claim by Morison was against Wilma C. Roach, who was the owner and driver of the automobile in which he was a passenger at the time of the collision of the automobile with the abutment of a bridge in Arkansas. Thereafter, State Farm Insurance Company, the public liability insuror for Wilma Roach, negotiated a settlement for damages with Morison and his attorney. The sum of $10,000 was paid to Morison, who then signed a release which specifically named Wilma Roach and Acel Clark, a witness, "their heirs, executors and administrators, agents and assigns and all other persons, firms or corporations liable or who might be claimed to be liable * * * for any and all claims, demands, damages, actions, courses of action, or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred," etc.¹ (Emphasis added.)

Some time later the injured passenger, Morison, filed suit in Florida against General Motors, his complaint alleging five counts of liability: I Negligence; II Strict Liability in Tort; III Breach of Express and Implied Warranties; IV Wanton and Wilful Misconduct and V Fraud and Misrepresentation. As to the first four counts he expressly alleged that the "collision was the proximate result of Defendant's negligence, * * * either solely or concurrently with the negligence of the driver" and that "his injuries were proximately caused by the sole negligence, carelessness, recklessness, wilfulness and/or wantonness of Defendant GM, as hereinafter more specifically described, or in the alternative, Defendant's negligence concurred with that of the driver * * * to proximately cause the Plaintiff's injuries."

The appellant does not seriously contend that this suit was not against a "joint tortfeasor." He poses this question in his brief: "Does an `All Persons, Firms or Corporations' Release Bar an Action Against a Joint Tort-Feasor Who Paid No Consideration for and Was Not Named in the Release?" Although the brief makes the bald statement that "There was also an issue of fact as to whether General Motors was the sole tortfeasor," Appellant clearly overlooks the following definition in the Uniform Joint Tort Feasors Act:

"* * * two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them."

In response to a motion for summary judgment filed by Defendant, plaintiff and his "settling" counsel both filed affidavits asserting that they did not intend to release General Motors and that they did not negotiate any settlement with General Motors, and that General Motors paid no consideration for this release.

Both parties argue that the case is to be decided by Arkansas law. At the time of the injury and the release, Arkansas had adopted the Uniform Contribution Among Tort Feasors Act. The principal paragraph of this Act relied upon by Defendant provides as follows:

"34-1004. Release of one tortfeasor. — Effect on injured person\'s claim. — A release by the injured person of one joint tortfeasors, 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." Ark.Stats.1947, Sec. 34-1004.

There are no Arkansas cases or Federal Court cases announcing Arkansas law construing the words, "unless the release so provides" which deal with a release of "all other persons, firms or corporations liable, etc." The nearest case to this one before us and the one claimed by the injured party to expound the Arkansas law released only the named persons and then stated that the settlement was * * * "of any and all claims, actions, or causes of actions accruing to the Plaintiffs and arising out of the accident complained of." All-bright Bros. Contrs., Inc. for Use and Benefit of Nat. Sur. Corp. v. Hull-Dobbs Co., 6 Cir. (1953) 209 F.2d 103.

The only cases from other jurisdictions which contain the language releasing any and all persons in addition to the named parties hold that such language satisfies the requirement of the Act "unless the release so provides." They hold that "all" means "...