Pedersen v. Bring
| Decision Date | 16 October 1962 |
| Docket Number | No. 50658,50658 |
| Parties | Arlene PEDERSEN, Plaintiff-Appellant, v. Jeanette H. BRING, Defendant-Appellee. Jeanette H. BRING, Cross-Petitioner-Appellee, v. George D. FREEMAN, Mavis I. Nelson and Lyle V. Nelson, Cross-Defendants-Appellees. |
| Court | Iowa Supreme Court |
Fitzgibbons & Fitzgibbons, Estherville, for appellee, Jeanette H. Bring.
Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellee, George D. Freeman.
Cornwall, Cornwall & Avery, Spencer, and Austin, Grefe & Sidney, Des Moines, for appellees, Mavis I. Nelson and Lyle V. Nelson.
This appeal presents but one question, the construction of an instrument denominated 'Covenant not to Sue' which the plaintiff executed and delivered to cross-defendants Mavis I. Nelson and Lyle V. Nelson. The trial court, upon an application for determination of law points, held that the covenant is in fact a full release, and so prevents the plaintiff from proceeding against the original defendant Jeanette H. Bring, and the additional cross-defendant George D. Freeman. We granted leave to appeal. Another question was also decided by the court, but its validity is not argued here and the validity of the ruling was in fact admitted by counsel for plaintiff on oral argument. Accordingly we give it no attention.
We have before us only the pleadings in the case. Although the plaintiff in argument contends that certain depositions should have been considered by the trial court, the record whows that these were not The record shows that plaintiff's action is one for damages claimed to have been sustained in an automobile collision on September 27, 1957. It appears from the pleadings that plaintiff was on that date traveling east on Highway No. 9. The defendant Bring was proceeding west on the same road. She attempted to pass the cross-defendant Freeman when, the petition alleges, she was in a no-passing zone. The petition further alleges that because of this plaintiff was compelled to apply her brakes suddenly and with great force in order to avoid a collision with defendant's oncoming vehicle; as a result of which her car was struck from the rear by an automobile owned by the cross-defendant Lyle Nelson and driven at the time by the cross-defendant Mavis I. Nelson.
called to the attention of the court. Whether in any event the court must consider depositions in ruling on an application for law points under Rule 105, 58 I.C.A., we do not determine. The depositions were not in fact brought to the attention of the court; and in view of our holding on the proper interpretation of the instrument in question we do not find it necessary to decide the question. If material, they may be considered upon further proceedings in the case.
After the Nelsons and Freeman had been brought into the case as cross-defendants, the defendant Bring and the cross-defendants Nelson pleaded the execution of an instrument, known in the record as Exhibit A, executed in favor of the Nelsons, called a 'Covenant not to Sue' but which the defendant Bring contends is a complete release and so releases all other parties against whom claim might be made; and which the Nelsons claim prevents any action against them by the plaintiff and that plaintiff, by its terms, is bound to hold them harmless from any recovery by the defendant Bring on her cross-petition. These contentions of the Nelsons were upheld by the court in its ruling, but as we have pointed out above the question is not argued here and we give it no further attention. The plaintiff, in a reply, alleged mutual mistake in the execution of the instrument and asked it be set aside. This question was not decided by the trial court but was specifically reserved for the trial.
I. So we have but the one question of the real meaning of the covenant, Exhibit A. We set it out herewith:
'EXHIBIT 'A'
'Arlene Pedersen of Armstrong in the County of Emmet and State of Iowa for my heirs, executors and administrators, in consideration of the sum of Seventy-Nine and 12/100 _____ Dollars to be paid by Lyle V. Nelson the receipt of which is hereby acknowledged, do by this instrument covenant with said Lyle & Mavis Nelson to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action, for damages, cost, loss of service, expenses or compensation for, on account of, or in any way growing out of, or hereafter to grow out of an accident which happened to Mavis Nelson on or about the 27th day of Sept., 1957, at or near 2 Mi. East of Gruver, Iowa, on highway #9 whereby _____ and for the above consideration I hereby agree to hold the said Lyle & Mavis Nelson harmless from any damages to myself resulting or to result from said accident.
'WITNESS ........ hand and seal this 2nd day of Oct. at Armstrong, Iowa A. D. 1957.
/s/ Mrs. Arlene Pedersen'
We need consider only plaintiff's contention that the instrument in question is ambiguous and so the question of the intent of the parties in executing it--whether it was meant to be a full release or is only what it is labeled, a covenant not to sue--should be determined by evidence. While a covenant not to sue is an artificial means of evading the general rule that a full release of one against whom a claim is made also releases others against whom the same claim might be lodged, it is established in Iowa that it is valid. In Dungy v. Benda, 251 Iowa 627, 638, 102 N.W.2d 170, 177, we said: The rule applied in Dungy v. Benda, supra, is in its application often harsh, and the device of the covenant not to sue, as well as that of the modern 'loan receipt' have been adopted as a means of permitting settlement with one alleged wrong-doer without releasing others. Bolton v. Ziegler, U.S.D.C., N.D. of Iowa, 111 F.Supp. 516, 527. Our problem here is to determine whether the instrument before us is so clearly a full release of the Nelsons that it will admit of no other interpretation. If so, the ruling of the trial court was correct. If not, the intent may be determined, as the plaintiff contends, by evidence as to the real intent of the parties; that is to say, whether plaintiff meant to give the Nelsons a full release or merely to agree not to sue them or assert any claim against them.
It must be admitted the instrument before us is troublesome. A plain and simple covenant not to sue, such as was used in Renner v. Model L. C. & D. Co., 191 Iowa 1288, 1304, 1305, 184 N.W. 611, 612, would have prevented the difficulties which have arisen. But we must take the instrument as it was executed.
II. The intent of the parties must be determined from what they did; and if the instrument is clearly one thing or the other, a covenant not to sue, or a full release of the Nelsons, there is no room for construction. It is true the parol evidence rule does not apply in favor of one who is not a party to the instrument from which he seeks to claim an advantage. Dungy v. Benda, supra, loc. cit. 251 Iowa 633, 102 N.W.2d 174, Middaugh v. Des Moines Ice & Cold Storage Co., 184 Iowa 969, 984, 169 N.W. 395, 400. But the intent may be so clearly shown by the instrument that there is no room for construction. Dungy v. Benda, supra.
The question must be determined by a study of the instrument Exhibit A. The defendant Bring relies greatly upon Atlantic Coast Line Railroad Co. v. Boone, Fla., 85 So.2d 834, 57 A.L.R.2d 1186. There an instrument identical for all practical purposes with the one before us here was held to be in fact a full release which released all other alleged joint tort feasors. The plaintiff makes some effort to distinguish the two instruments, because...
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...of law, of course, would be error, as a covenant not to sue protects only the tortfeasors to whom it runs. Pedersen v. Bring, 254 Iowa 288, 291, 117 N.W.2d 509, 511 (1962). Viewing the court's statement in the light best adapted to sustaining its ruling, however, we think it may be interpre......
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...treatment of the original injury.' II. The trial court also relied on Dungy v. Benda, 251 Iowa 627, 102 N.W.2d 170; Pedersen v. Bring, 254 Iowa 288, 117 N.W.2d 509 and Johnson v. Harnisch, 259 Iowa 1090, 147 N.W.2d 11. All of those cases involve joint or concurrent tort-feasors. Our conside......
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...one of the principle cases relied upon deals with interpretation of a release as a contract. Defendants correctly argue that Pedersen v. Bring, 254 Iowa 288, 117 N.E.2d 509, approves the rule laid down in Dungy v. Benda, supra. It should be noted that while Pedersen v. Bring, supra, approve......
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Estate of Bruce v. BCD, INC., Civ. No. 73-7-W.
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