Parry Mfg. Co. v. Crull

• Decision Date: 09 May 1913
• Docket Number: No. 7,923.,7,923.
• Citation: 101 N.E. 756,56 Ind.App. 77
• Parties: PARRY MFG. CO. v. CRULL.
• Court: Indiana Appellate Court

56 Ind.App. 77

101 N.E. 756

PARRY MFG. CO.

v.CRULL.

No. 7,923.

Appellate Court of Indiana, Division No. 2.

May 9, 1913.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Abner D. Crull against the Parry Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.John B. Elam, James W. Fesler, and Harvey J. Elam, all of Indianapolis, for appellant. Wymond J. Beckett and Elliott & Elliott, all of Indianapolis, for appellee.

LAIRY, J.

Appellee recovered a judgment in the lower court for personal injuries sustained by coming in contact with a post which was one of the supports of a coal bin maintained by appellant near a private switch, upon which he was engaged in switching freight cars while in the employ of the Belt Railroad. The complaint was in one paragraph. Defendant answered by a general denial and also filed a second paragraph of answer to which a demurrer for want of facts was sustained. This ruling presents the first question for our consideration. The second paragraph of answer proceeds upon the theory that appellant and the Belt Railroad were liable, if at all, as joint tort-feasors, and that after appellee received his injury he made a claim against the Belt Railroad for damages growing out of the same injury, and that it compromised the claim and paid to him the sum of $2,000 in cash which he received and still retains. The answer avers that, for the purpose of evidencing and accomplishing such transaction, the plaintiff and the railroad company entered into an agreement which is set out in the answer and is as follows: “Whereas on March 2, 1909, Abner D. Crull, the undersigned, now 63 years of age, was in the employ of the Indianapolis Union Railway Company as a brakeman, and at about noon on said day was working in the line of his duty on track No. 9, known as the North Track, at the coal bin of Parry Manufacturing Company's plant in the city of Indianapolis, Ind., and while standing on the step of a coal car that was being switched, was caught between a post in the coal bin near said track and the coal car on which he was standing and was seriously injured, sustaining a fracture of the left collar bone, bruises about the left hip, injury to the nervous system, especially to the left sciatic nerve and otherwise injured in his person, which injuries he claims are permanent; and whereas the undersigned, said Crull, claims that said injuries were caused by the negligence of said Indianapolis Union Railway Company and of other persons and corporations and without his fault, and has demanded compensation for said injuries in a sum greater than hereafter mentioned as paid, and said Indianapolis Union Railway Company denies that it or any of its servants are guilty of any negligence whatever in the premises, but nevertheless, it being the desire of said Abner D. Crull, and said Indianapolis Union Railway Company to avoid litigation between them and the expenses thereof on account of said dispute and forever set at rest the differences so existing between them, but in such way that such settlement shall not impair or affect the claim of said Crull against any person or corporation other than said railway company for negligently causing or helping to cause the said injury: Now therefore, in consideration of the premises, and of the sum of two thousand ($2,000) dollars to him in hand paid by the said Indianapolis Railway Company, the receipt of which he hereby acknowledges, the undersigned, the said Abner D. Crull, hereby covenants and agrees for himself, his executor or executors, administrator or administrators, respectively to and with the said Indianapolis Union Railway Company that neither he, they, nor any of them will ever sue or bring any action to be brought against said Indianapolis Union Railway Company, on account of injuries and damage to him occasioned by or growing out of the accident above described. In witness whereof,” etc.

[1] The exact question presented by the demurrer to this paragraph of answer has never been passed upon by either of the courts of appeal of this state. It is well settled that joint tort-feasors are jointly and severally liable for the entire damage occasioned by their joint wrongful act. The injured party may seek his remedy against one alone, or more than one, or all, at his election, and the courts will not attempt to apportion the damage among the joint wrongdoers.

[2] It is equally well settled that there can be but one recompense for a single injury. If the injured party received a satisfaction from one who is liable for the entire damage, it inures to the benefit of all who are jointly and severally liable, and all are thereby released. Cleveland, etc., R. Co. v. Hilligoss, 171 Ind. 417, 86 N. E. 485, 131 Am. St. Rep. 258;Fleming v. McDonald, 50 Ind. 278, 19 Am. Rep. 711;Ashcraft v. Knoblock, 146 Ind. 169, 45 N. E. 69.

If the second paragraph of answer shows a satisfaction and release of appellee's claim for damages by the railroad company, such release would inure to the benefit of appellant, and the answer must be held sufficient; but it is claimed on behalf of appellee that this paragraph of answer does not show either a satisfaction of the demand or a release of the claim, but, on the contrary, that it shows that the demand was only partially satisfied and that it purports to be simply a covenant or agreement not to sue the railroad company.

If the injured party released his claim for damages as one of several joint tort-feasors, he cannot afterward assert a claim against the others for the reason that he has parted with his claim by releasing it, and he has no claim to assert. So, likewise, if he has received from one joint tort-feasor full satisfaction of his claim, or that which he has agreed to accept as full satisfaction, he cannot afterward assert a claim against the others or any of them, for the reason that his claim has been satisfied. The rule should be no broader than the reason upon which it rests, and so, where the claim is not released and full satisfaction has not been made, it does not apply.

[3] It is argued on behalf of appellant that an agreement or a covenant not to sue one of the joint wrongdoers amounts to a release as to him, and that a release of one is a release of all. It has been held that such a covenant amounts to a release of the one in whose favor it is made. Harvey v. Harvey, 3 Ind. 473;Eagle v. Lafayette Ins. Co., 9 Ind. 443;Reed v. Shaw, 1 Blackf. 245.

The argument advanced and the cases cited in its support would have much force if it were true that a release of one joint tort-feasor would have the effect to release all; but such is not the rule. A distinction should be observed between releasing a claim and releasing one of the parties liable. If the injured party releases his claim for damages to one of the parties liable as a joint tort-feasor, he cannot afterward assert it as against the others; but he may release one of the parties so liable without releasing the others. The injured party may enforce his demand against all the joint wrongdoers except one and thus relieve that one of paying any part of his demand. Those sued have no legal right to complain and they cannot enforce contribution against the one not sued. A joint wrongdoer is liable for the whole damage, and his liability is not increased by the release of one or more of the persons jointly liable with him. From whatever viewpoint the question may be considered, there seems to be no good reason to hold that a covenant not to sue one of several persons jointly liable as a tort-feasor should have the effect of releasing the others.

In the case of Booth v. Kinsey, 49 Va. 560, the distinction between a release of a claim or cause of action and a personal discharge of a debtor is aptly stated. The court, at page 568 of the opinion, says: “According to Pothier there are two kinds of release, one called a ‘real release,’ the other a ‘personal discharge.’ A real release is where the creditor declares that he considers the debt as acquitted; it is equivalent to a payment, and renders the thing no longer due; ‘consequently it liberates all the debtors of it, as there can be no debtor without something due.’ A personal release merely discharges the debtor from his obligation, and extinguishes the debt indirectly where the debtor to whom it is granted was the sole principal, because there can be no debt without a debtor. ‘But if there are two or more debtors in solido, a discharge to one of them does not extinguish the debt; it only liberates the person to whom it is given and not his codebtor.”’ In another part of his work on Obligations, Pothier states the rule thus: “It has long been settled that, if two persons are bound jointly and severally, a release to one is a discharge to all; and this rule applies in equity as well as at law. Bower v. Swadlin, 1 Atkins, 294. But the same rule does not apply in every case of a personal discharge. For...