Murray v. Helfrich

• Decision Date: 03 April 1934
• Parties: MURRAY v. HELFRICH.
• Court: Oregon Supreme Court

30 P.2d 1053

146 Or. 602

MURRAY v. HELFRICH.

Supreme Court of Oregon

April 3, 1934

Department No. 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Leona Murray against B. Helfrich. Judgment for defendant and plaintiff appeals.

Affirmed.

Walter L. Tooze, of Portland (Martin W. Hawkins, of Portland, on the brief), for appellant.

L. A Recken, of Portland (Senn & Recken, of Portland, on the brief), for respondent.

CAMPBELL Justice.

This is an action for personal injuries. Judgment for defendant, and plaintiff appeals.

The plaintiff alleges in substance that while riding with, and as a guest of defendant, she was injured by reason of the gross negligence of defendant and asks for compensation for such injuries.

Defendant answered with a general denial of any negligence on his part and for a further and separate answer alleged, in effect that the injuries suffered by plaintiff were caused by the negligence of one E. G. Swigert in a collision between defendant's car and a car driven by the said Swigert and that the negligence of said Swigert was the sole cause of said collision and the injuries resulting therefrom.

For a second defense, defendant alleged, in effect, that plaintiff instituted an action for her alleged injuries received in said collision, against said E. G. Swigert in which she alleged that the injuries complained of herein were caused solely by the negligence of said E. G. Swigert; that while said action was pending, a compromise and complete settlement was had between plaintiff and said Swigert in which she received $3,250, "either in part payment or in full satisfaction and discharge" for said injuries, being the same collision and the same injuries for which she is asking compensation in the instant case.

To defendant's answer, plaintiff filed a reply in which she admitted that the instant action against defendant is for the same injuries that she received in the collision alleged in her action against Swigert and denied all other material allegations.

There are several assignments of error set forth in the bill of exceptions and argued in the brief, but on the argument before this court they were all waived with the exceptions of assignments Nos. 3, 4, and 5. These assignments all raise the same question. The question presented to the court arises out of a certain instruction given by the trial court, and the refusal of the court to give plaintiff's requested instruction on the same subject. The trial court gave the jury the following instruction:

"He also alleges that Mrs. Murray brought an action against Mr Swigert in the Circuit Court of this county, an action for damages for the accident, collision and injuries set forth in the complaint therein, and that thereafter a full and complete settlement, compromise and satisfaction was had by and between Mr. Swigert and the plaintiff herein, and that the plaintiff was paid, received and accepted the sum of $3250.00 either in part payment or in full settlement, satisfaction and discharge of all claims against Mr. Swigert. In that connection, I say to you the only evidence of that, and which is not disputed, is that that $3250.00 was paid as a consideration to the plaintiff for an agreement not to sue Mr. Swigert, and to dispose of an action then pending without making it a release or complete satisfaction."

The court further instructed, in effect, that if the jury found that the plaintiff should recover against defendant, then from the amount of damages she sustained should be deducted the sum of $3,250 which she had already been paid by E. C. Swigert; or should the jury find that plaintiff had not been damaged in excess of $3,250, then their verdict should be for defendant.

To these instructions the plaintiff excepted and also excepted to the refusal of the court to give the following instruction:

"As a second further and separate answer and defense herein, the defendant has alleged in his amended answer, that following the accident in question, the plaintiff, through her attorney, made a claim and demand upon E. G. Swigert for damages for the injuries which she sustained in the collision, and did institute in the Circuit Court for Multnomah County, Oregon, an action for damages against said Swigert, being the same accident, collision and injuries set forth in the plaintiff's complaint in this action. Defendant also alleges that thereafter a full, complete settlement, compromise and satisfaction was had by and between the plaintiff and Swigert, whereby the plaintiff was paid and received and accepted a certain sum of money in full settlement, satisfaction and discharge of all claims against said Swigert and full satisfaction for all injuries which she sustained in said accident and collision. The court instructs you as a matter of law that the Agreement between the plaintiff and Swigert did not constitute a full settlement, satisfaction and discharge of all claims against said Swigert, nor a full or other satisfaction for the injuries which plaintiff sustained in said accident, and that the same amounted only to a covenant not to sue Swigert upon plaintiff's part, and in no way satisfied or discharged plaintiff's cause of action; therefore, that defense is expressly taken away from your consideration, and in arriving at your verdict in this case, you will not consider the same in any respect whatsoever."

This presents the question: What effect should be given to the amount of money paid by Swigert to plaintiff for her covenant not to sue, in an action against his joint tort-feasor? It is admitted that said sum was paid for a dismissal of an action for damages for the same injuries for which plaintiff seeks compensation in the instant action.

There was evidence tending to show that the accident by which the plaintiff was injured was caused by the concurrent negligence of E. G. Swigert and the defendant Helfrich.

"The weight of authority will, we think, support the more general proposition, that, where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concerted action." 1 Cooley on Torts (4th Ed.) § 86, p. 277.

The text is well supported by the authorities and that seems to be the rule adopted in this state.

"Judge Seaman says in Brown v. Coxe [(C. C.) 75 F. 689], supra, that the creation of a joint liability in tort does not depend upon proof that the same act of wrongdoing was participated in by both tort-feasors and that they were in concert and had a common intent or were engaged in a joint undertaking: 'But the rule under which parties become jointly liable as tort-feasors extends beyond acts or omissions which are designedly cooperative, and beyond any relation between the wrongdoers. If their acts of negligence, however separate and distinct in themselves, are concurrent in producing the injury, their liability is joint as well as several. Each becomes liable because of his neglect of duty, and they are jointly liable for the single injury inflicted because the acts or omissions of both have contributed to it."' Strauhal v. Asiatic Steamship Co., 48 Or. 100, 85 P. 230, 233; Brown v. Jones, 130 Or. 424, 278 P. 981.

"It is and has long been, a generally recognized rule that there is no line of separation between the liability of joint tort-feasors. The tort is a thing integral and indivisible and any claim for injuries arising therefrom, runs through and embraces every part of the tort. The liability of one cannot be carried into any portion of the joint tort that is not followed by an equal liability of the other tort-feasors. Each is liable for the whole and the injured party may pursue one separately, or he may pursue all jointly or any member jointly less than the whole number." 26 R. C. L. 763.

"The rule is well settled that, where two or more tort-feasors, by concurrent acts of negligence, which, although disconnected, yet, in combination, inflict injury, all are liable. Brown v. Thayer, [212 Mass. 392, 99 N.E. 237], supra; Feneff v. Boston & M. R. Co., 196 Mass. 575, 82 N.E. 705. See, also, line of decisions cited in note on page 158, vol. 20, R. C. L." Reader v. Ottis, 147 Minn. 335, 180 N.W. 117, 118, 16 A. L. R. 463, and see note page 465 et seq.

It is also a well-established rule of law that...