Muse v. De Vito

• Decision Date: 05 January 1923
• Citation: 243 Mass. 384,137 N.E. 730
• Parties: MUSE v. DE VITO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 384

137 N.E. 730

MUSE

v.DE VITO.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 5, 1923.

Exceptions from Superior Court, Middlesex County; John A. Aiken, Judge.

Action of tort by Elizabeth Muse against John A. De Vito for personal injuries sustained by falling through a trapdoor in the sidewalk, removed by defendant's servants. Verdict for plaintiff for $450, and defendant brings exceptions. Exceptions sustained.

The answer pleaded a general denial, a release under seal, and an accord and satisfaction. Defendant excepted to the admission of certain evidence concerning the circumstances under which the release was signed, and to the refusal of requested instructions, and to certain parts of the charge as given. Defendant's requests Nos. 1, 10, 14-17, were as follows:

(1) Upon all the evidence the plaintiff cannot recover.

(10) If the plaintiff gave a release of all claims for damages arising out of this accident to McMaster, the occupier of the premises, then that operates as a release to this defendant.

(14) It is apparent from the release itself that the intention was to discharge the liability of McMasters. It follows therefore that the liability of De Vito is thereby extinguished.

(15) There is nothing in the release which shows any intention whatever to preserve liability of any person not a party to it, the release therefore cannot be construed as a covenant not to sue.

(16) The terms of the release are unambiguous and unconditional. It is not such a paper as may be explainable by extrinsic evidence, but is in legal effect a full discharge of any liability in this case.

(17) The release cannot be varied by parol evidence to show that apparently the plaintiff in giving it intended to reserve whatever rights she had against this defendant.

James J. McCarthy and A. Francis Harrington, both of Boston, for plaintiff.

Peabody, Arnold, Batchelder & Luther, of Boston, and Albert B. Carey, of Dorchester, for defendant.

DE COURCY, J.

The plaintiff was injured by falling into a trapdoor hole, located in the sidewalk of a public highway, in front of a store occupied by one McMaster. On the day of the accident two of the defendant's employees had been sent to remove from the basement of this store a load of waste paper. With the assistance of an employee of McMaster they lifted the metal trapdoor, which was about 3 feet square, and weighed 100-125 pounds, and placed it against the building. After all the paper had been thrown out from the cellar, and some 15 bundles remained on the sidewalk behind the defendant's truck, his two employees went to a nearby store to get a drink of soda, leaving the hole unwatched and unguarded. During their absence the plaintiff, whose attention was attracted by some people who were looking at a picture in the window of McMaster's store, stepped alongside one of them without noticing that the hole was open, and fell in. There was evidence for the jury of the plaintiff's due care and the defendant's negligence. French v. Boston Coal Co., 195 Mass. 334, 81 N. E. 265,11 L. R. A. (N. S.) 993, 122 Am. St. Rep. 257;Picquett v. Wellington-Wile Coal Co., 200 Mass. 470, 86 N. E. 899;Regan v. Keighley Metal Ceiling & Roofing Co., 220 Mass. 261, 107 N. E. 984.

The defendant introduced in evidence a ‘Release and Settlement of Claim,’ from the plaintiff to McMaster, dated the day after the accident. There was a verdict for the plaintiff. The defendant's exceptions are to the admission of parol evidence of what was said to the plaintiff by the attorney in whose presence the paper was signed; also as to her intention at the time to reserve a right of acction against others who might be legally responsible; to the refusal of the judge to give certain instructions requested, especially with reference to the release; and to portions of the charge on the same subject.

As matter of construction it is clear that this instrument under seal is a release, and not merely a covenant not to sue. The effect which the law attaches to a release discharging the liability of a wrongdoer is the release of other tort-feasors who are jointly liable for the injury. This rule apparently is based upon the nature of their liability, which is one and indivisible. Accordingly, if one of them is discharged, or satisfies the cause of action, there remains no foundation for an action against any one. This rule applies not only to joint torts, strictly so called, but also to cases where the negligent acts of two or more persons operate concurrently to the injury of another, so that...