Natrona Power Company v. Clark

• Decision Date: 06 May 1924
• Docket Number: 1088
• Parties: NATRONA POWER COMPANY v. CLARK
• Court: Wyoming Supreme Court

225 P. 586

31 Wyo. 284

NATRONA POWER COMPANY v. CLARK

No. 1088

Supreme Court of Wyoming

May 6, 1924

ERROR to District Court, Natrona County; CYRUS O. BROWN, Judge.

Action by Guy Clark against the Natrona Power Company, for damages for injuries caused by contact with an electric wire maintained by defendant. There was a judgment for plaintiff and defendant brings error.

Judgment reversed, and cause remanded.

H. R Waldo and Hagens & Murane for plaintiff in error.

The release of the Railroad Company extinguished the cause of action and discharged all others from liability, 1 Cooley on Torts, 3rd ed. 234; 6 Thompson on Neg. 2nd. ed. Sec. 7381; Stires v. Sherwood, (Ore.) 145 P. 645, 647; Co v. N. A. T. & T. Co., (C. C. A. 9th Cir.) 220 F. 783; Co. v. Hilligoss, (Ind.) 86 N.E. 485; Carpenter v. Co., (N. H.) 97 A. 560; Seither v. Co. (Pa.) 17 A. 338; Hubbard v. Co. (Mo.) 72 S.W. 1073; the execution of said release is admitted and the case should have been dismissed on the demurrer to the reply, Berry's Stephen's Digest of Evi. Art. 90; 4 Wigmore on Evi. Secs. 2425, 2432 & 2446; 3 Jones Evi. Sec. 434; 1 Elliott Evi. Secs. 568 and 572; 5 Chamberlayne Evi. Secs. 3548 & 3550; Bradner Evi. Chap. 9; Reynolds v. Morton, 23 Wyo. 528; Allen v. Ruland (Conn.) 65 A. 138; Goss v. Ellison, 136 Mass. 503; Leddy v. Barney (Mass.) 2 N.E. 107; Co. v. Sullivan, (Colo.) 41 P. 502; Wodock v. Robinson (Pa.) 24 A. 73; Sayre v. Burdick (Minn.) 50 N.W. 245; Current v. Muir, (Minn.) 108 N.W. 870; Schultz v. Plankinton Bk. (Ill.) 30 N.E. 346; Schneider v. Kirkpatrick, 80 Mo.App. 145; Silchow v. Stymets, 26 Hun. 145; Hankinson v. Riker, 30 N.Y.S. 1040; Springarn v. Rosenfeld, 24 N.Y.S. 733; Clark v. Mallory, (Ill.) 56 N.E. 1099; Demple v. Carroll, 21 Wyo. 447; an express reservation on the face of the release would be ineffective to change its legal effect as a discharge of all parties liable, Abb v. Co., (Wash.) 68 P. 954; Larson v. Anderson (Wash.) 182 P. 957; Ducey v. Patterson, (Colo.) 86 P. 109; Flynn v. Manson, (Cal.) 126 P. 181; Co. v. Allen, 67 Fla. 257, 65 So. 8; McBride v. Scott, (Mich.) 93 N.W. 243; Dulaney v. Buffum, (Mo.) 73 S.W. 125; Clark v. Co., 279 Mo. 69, 213 S.W. 851; Bank v. Aldrich, (Ia.) 133 N.W. 383; Smith v. Co., 128 Tenn. 112, 157 S.W. 900; Howard v. Co., (N. C.) 70 S.E. 285; Gunther v. Lee (Md.) 24 Am. Rep. 504; if there was negligence in the maintenance of dangerous wires near the railroad track, the Railroad Company was equally liable, Ry. Co. v. Allen, supra; evidence of contemporaneous statements or reservations outside the written release was incompetent, Reynolds v. Morton supra; 1 Greenleaf 13th ed. 275; Allen v. Ruland supra; Goss v. Ellison supra; Leddy v. Barney supra; Ry. Co. v. Sullivan supra; Wodock v. Robertson supra; Sayre v. Burdick supra; Current v. Muir supra; it was an attempt by a party to the document to vary it as against a stranger, Schultz v. Plankinton, 30 N.E. 346; Schneider v. Kirkpatrick supra; Silchow v. Stymets supra; Hankinson v. Riker, supra; Clark v. Mallory supra; a reservation on the face of the release itself of a right to prosecute joint tortfeasor is an absolute release of all parties liable. However, no reservation of the kind was inserted in the present instance, Abb v. Ry. Co., (Wash.) 68 P. 954; Larson v. Anderson supra; McBride v. Scott supra; Ducey v. Patterson, supra; Flynn v. Manson supra; Ry. Co. v. Allen supra; how much stronger is the situation here, the release being absolute on its face.

Ferguson and Perkins for defendant in error.

The parties to the release had a right to reduce their entire agreement to writing by use of two instruments with the same legal effect as if made in one; and one may be subsequent to the other; no consideration passed from plaintiff in error, nor was it induced to change its position in any way; there is no estoppel; 13 C. J. 592, 6 R. C. L. 915; 3 Elliott 1987; Bullock v. Johnson, 35 S.E. 703; Clark v. Sallaska, 174 P. 505, 4 A. L. R. 746; Wescott v. Mitchell, (Me.) 50 A. 21; defendant in error has the right to show by parol evidence the full agreement as against plaintiff in error, it being a stranger; it is here contended that it gains certain rights by the first instrument to which it is not a party, which prevented the parties from stating their agreement by a subsequent instrument; the parol evidence rule cannot be invoked by strangers, Reynolds v. Morton and Demple v. Carroll involved instruments between the original parties; the reservation may be shown by parol, O'Shea v. Co., 105 F. 559; Allen v. Ruland (Conn.) 65 A. 138; Goss v. Allison, 136 Mass. 503 holds that a release of one joint tort-feasor releases all, but a later case, Matheson v. O'Keane, (Mass.) 97 N.E. 638 holds that a covenant not to sue one joint tort-feasor does not release the others, and may be shown by parol, Johnson v. Von Scholly, (Mass.) 106 N.E. 17; all of the cases cited by plaintiff in error are essentially different on the facts; that plaintiff in error is a stranger coming within the exception of the parol evidence rule we cite, 17 Cyc. 749; 10 R. C. L. 1020; 21 A. & E. Enc. 2nd Ed. 1103; 2 Elliott Contracts, Sec. 1630; 3 Jones Ev. 217; Lonabaugh v. Morrow, 11 Wyo. 17; Stickney v. Hughes, 12 Wyo. 397; Ranson v. Wickstrom & Co., 146 P. 1041; Clapp v. Bank, (Ohio) 35 N.E. 308; Fitzgerald v. Stock Yds., (Neb.) 131 N.W. 612; Carmack v. Drum, (Wash.) 73 P. 377; Ry. Co. v. Darr, (Tex.) 93 S.W. 166; Myers v. Taylor (Tenn.) 64 S.W. 719; Livingston v. Heck (Ia.) 94 N.W. 1098; O'Shea v. Ry. Co., 105 F. 559; Highstone v. Burdette (Mich.) 27 N.W. 852; Johnson v. Von Scholley supra; McKim v. St. Ry. Co. (Mo.) 196 S.W. 433; Biscuit Co. v. Dugger (Ore.) 70 P. 523; Horn v. Hanson (Minn.) 57 N.W. 315; Ry. Co. v. Gregory (Tenn.) 193 S.W. 1053; the release may be shown by parol evidence as intended to be a covenant not to sue; McKim v. Co., 196 S.W. 433; Ranson v. Co. supra; Fitzgerald v. Co. supra; our point is sustained by El Paso Co. v. Darr, 93 S.W. 166 and Nashville Co. v. Gregory supra; a covenant not to sue does not release other joint tort-feasors; Stirres v. Sherwood (Ore.) 145 P. 645; the overruling of the demurrer is sustained by the following authorities, O'Shea v. Co. supra; Carey v. Bilby, 129 F. 203; Berry v. Pullman Co. 249 F. 816; Barnet v. Conklin, 268 F. 177; Co. v. Barnes, (Ky.) 111 Am. S. Rep. 273; Lovejoy v. Murray, 3 Wall 1-19; Fitzgerald v. Stockyards, 131 N.W. 612; Edens v. Fletcher, 98 P. 784; Ellis v. Esson, 36 Am. Rep. 830; Pogel v. Meilke, 18 N.W. 927; Ry. Co. v. Darr supra; Walsh v. Ry. Co. 97 N.E. 408; Tankersley v. Co., 163 N.W. 850; Boyles v. Knight, 26 So. 939; Trading Co. v. Co. 220 F. 783; an acknowledgment of satisfaction against two of several defendants sued as joint wrong-doers will not release the others where the instrument shows a contrary intention, Fitzgerald v. Co. supra; 58 L. R. A. 307 and note; the release should be construed as a covenant not to sue, Clark v. Co. (Mo.) 213 S.W. 851.

H. R. Waldo and Hagens & Murane in reply.

Defendant in error seeks to evade the plain provisions of his own written agreement; it is true that parties to an agreement may vary their obligations by subsequent agreements, but not to the extent of binding third parties whose rights have intervened; his contention of right to show by parol evidence, a different agreement is fallacious; the parol evidence rule is designed to prevent fraud and perjury and cannot be applied to promote these evils by allowing a party to escape the legal effect of his own deed and revive to his advantage a cause of action theretofore extinguished; Reynolds v. Morton supra goes beyond the rule we are contending for here; no authority cited by defendant in error supports contention of right to bring up, after the lapse of two years, mental reservations claimed to have been held from the first, and thus avoid the effect of what he freely and voluntarily did; there is no express reservation here; the release declares in unmistakable terms full satisfaction; and there is no justification for construing it simply as a covenant not to sue; the assertion that defendant in error did not consider the Railroad Company liable, does not explain why he accepted settlement from it for an injury, under the facts the Railroad Company was liable, if plaintiff in error was, and he having received satisfaction from it, is not entitled to double indemnity by means of another recovery from plaintiff in error.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

The plaintiff, Guy Clark, or G. C. Clark, an employee of the Chicago, Burlington & Quincy Railroad Company, was injured March 12, 1918 by contact with an electric wire maintained by the Natrona Power Company above and across the tracks of the railroad company. On February 21, 1920, the plaintiff brought his action for damages against the power company as the sole defendant. The answer of the defendant alleged, among other things, that the plaintiff had made claim against the railroad company for compensation for the injury and thereafter, on April 16, 1918, had received from the railroad company $ 30 in full payment and satisfaction for all damages sustained by him, and that he thereupon executed and delivered to the railroad company a receipt and release, as follows:

"Chicago, Burlington & Quincy Railroad Company, Dr. to G. C. Clark.

April 16, 1918. In full payment, settlement, release and discharge of all claims I now have, or may have, arising from, growing out of, or to grow out of personal injuries, loss of time pain and suffering, and all loss, damages and expenses suffered by the said G. C. Clark aforesaid, by reason of an accident on the 12th day of March, 1918 at or near the Station of Casper, Wyo.,...