New River & Pocahontas Consol. Coal Co. v. Eary
| Decision Date | 15 May 1934 |
| Docket Number | 7917. |
| Citation | 174 S.E. 573,115 W.Va. 46 |
| Parties | NEW RIVER & POCAHONTAS CONSOLIDATED COAL CO. v. EARY et al. |
| Court | West Virginia Supreme Court |
Submitted April 26, 1934.
Syllabus by the Court.
1. The compromise authorized by Code 1931, 55-7-7, does not become a judgment by the mere force of the statute.
2. A release to one joint tort-feasor does not (of itself) release another.
3. The damages of a plaintiff in tort are entire and indivisible. The jury cannot apportion the damages among the wrongdoers. "The sole inquiry open is what damages has plaintiff sustained," not the relative enormity of the joint acts. 64 C.J., subject Trial, § 887.
4. A plaintiff seeking compensation for a joint wrong is entitled to full satisfaction (or that which the law must consider as such), but to only one satisfaction. Bloss v. Plymale, 3 W. Va. 393, point 4 of syllabus, 100 Am.Dec. 752.
5. Partial satisfaction of the injured person by one joint tort-fea sor is a satisfaction, pro tanto, as to all.
6. An issue held to be not properly before the court and left expressly undetermined may be raised in further proceedings between the parties.
Original prohibition proceeding by the New River & Pocahontas Consolidated Coal Company against Hon. J. W. Eary and others.
Writ issued.
Dillon Mahan & Holt, of Fayetteville, for petitioner.
Hubard & Bacon, of Fayetteville, for respondent C. W. Duncan.
For damages for the death of his wife from contact with an electrically charged wire fence, C. W. Duncan, as her administrator, brought an action at law against Appalachian Electric Power Company. Pending trial of that action, the power company paid the administrator $6,000, and he (with the written consent of all the distributees of the deceased) executed a release discharging the power company of all the claims and demands asserted against it in said action. Following that compromise, the administrator brought a like action against New River & Pocahontas Consolidated Coal Company. The coal company pleaded in bar the settlement in the first action. The pleas were rejected, and the action was tried before a jury, which returned a verdict in favor of plaintiff for $7,000. The circuit court required plaintiff to remit $3,000 of the verdict and then entered judgment against the coal company for $4,000. Upon a writ of error to this court, the entire quantum of the verdict was sustained on the ground that a remittitur must be based on evidence before the jury, and neither the payment of the power company nor other evidence to sustain a remittitur was before the jury. See Duncan v. New River & Pocahontas Consol. Coal Company (W Va.) 174 S.E. 370 (decided November 28, 1933). An execution was awarded on the judgment, and this is a proceeding to prohibit its enforcement.
1. Petitioner contends that the compromise of the administrator with the power company "must be treated as a judgment recovered," relying on Code 1931, 55-7-7, and, as a judgment satisfied, it is a bar to the instant judgment under Chewning v. Tomlinson, 105 W.Va. 76, 141 S.E. 532. The section relied on authorizes such a compromise and provides, "what is received by the personal representative under the compromise shall be treated as if recovered by him in an action under the section last mentioned." That section is 55-7-6, and directs that "the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate." It is apparent that the treatment required in 55-7-7 of "what is received" in a compromise, relates solely to the distribution of the fund and not to the character of the compromise itself. We held in relation to this compromise in Duncan v. New River & Pocahontas Consol. Coal Company, supra: "This was not a legal adjudication of the amount of the plaintiff's damages; in spite of the form that it took under the statute, the proceeding was nothing more nor less than a compromise settlement effected in the statutory form." Res judicata.
The coal company has done nothing so far to merit a discharge from liability. Until it does, or the plaintiff is otherwise fully satisfied under the law, its liability remains unaffected by the settlement with its cotrespasser. Lovejoy v. Murray, 3 Wall. 1, 17, 18 L.Ed. 129. "Joint tort-feasors are solidarily liable, and the party injured may sue one or both, as he chooses, and it is of no benefit to the one or the other that an action to which he was not made party has been compromised, so long as the full compensation to which the plaintiff is entitled has not been paid." Johnson v. Legeai, 147 La. 92, 84 So. 505, 507. Accord: Griffie v. McClung, 5 W. Va. 131.
2. Petitioner further contends that the settlement of the administrator with the power company, an alleged joint tort-feasor of petitioner, is either full reparation or reparation pro tanto for the alleged wrong. The law is well established in America that a tort is integral and indivisible; that the plaintiff's damages "are entire and single, no matter the number who occasioned them," Chewning v. Tomlinson, supra, page 78 of 105 W.Va. 141 S.E. 532, 533; and that he can have but one satisfaction for a joint wrong, 5 Stand. Ency. Procedure, page 102. One wrongful act-one full recovery.
Respondent C. W. Duncan does not question that law, but takes the positions (a) that the compromise settlement should have been introduced before the jury in mitigation of damages, which was not done; and (b) that petitioner's failure to do so constituted a waiver of the right and petitioner is now estopped to assert it.
(a) The compromise could have been properly presented to the jury in mitigation of damages had the coal company so elected. 17 C.J. 929. We practically said so in Duncan v. New River & Pocahontas Consol. Coal...
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