Preine v. Freeman, 1550

Citation112 F. Supp. 257
Decision Date08 May 1953
Docket NumberNo. 1550,1549.,1550
PartiesPREINE v. FREEMAN et al. (two cases).
CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

Cantor & McMullan, Richmond, Va., for plaintiffs.

White, Hamilton & Wyche, Petersburg, Va., for Maitland and Hite.

J. B. Browder, Richmond, Va., for Freeman.


These actions which are being heard together were brought by the plaintiffs, residents of the State of New York, against three defendants, who are residents of the State of Virginia. The allegations respecting negligence and the defenses offered by the pleadings are identical with one possible exception referred to later.

The pleadings disclose that while the plaintiffs were occupants of an automobile being operated in Chesterfield County, Virginia, by Mrs. Mary Lee Preine, the plaintiff in Civil Action #1549, and owned by her husband, Harry Preine, the plaintiff in Civil Action #1550, they were injured in a collision involving their automobile; a gasoline truck owned by the defendant D.L. Maitland and operated by the defendant Charles E. Hite, as agent for the owner; an automobile operated by the defendant Eulis S. Freeman; and a beer truck operated by Augustus W. Brooks and owned by Beer Distributors, Incorporated. The plaintiffs seek recovery for damages in each case against Maitland and Hite as owner and operator of the gasoline truck, and Freeman as owner of the automobile. Brooks, the operator, and Beer Distributors, Incorporated, the owner of the beer truck, are not parties to the actions.

The defendants have filed answers denying negligence and setting up as defenses releases executed by the plaintiffs to Brooks and Beer Distributors, Incorporated, contending that the release of those parties operates as a release of the defendants as joint tort feasors.

The defendant Freeman filed a request for admissions addressed to the plaintiffs to admit the genuineness of the releases attached thereto, which appear to be documents executed by the plaintiffs for valuable considerations releasing Brooks and Beer Distributors, Incorporated, from any and all further liability for injuries received by the plaintiffs in the collision. The documents provide that they are intended to release only Brooks and Beer Distributors and expressly reserve to the plaintiffs all rights they had against any other persons responsible for injuries received at the time. The plaintiffs have filed no responses to the request for admissions within the time provided by the rule and the releases are therefore admitted to be genuine.

All three defendants have filed motions for summary judgments on the ground that the pleadings show that releases have been executed to two of the five alleged joint tort feasors and as a matter of law the remaining three alleged joint tort feasors, the defendants herein, are released from any liability to the plaintiffs for injuries received by them.

The only possible difference between the two actions so far as the present motions are concerned is the fact that in the case of Mrs. Preine the settlement made with Brooks and Beer Distributors, Incorporated, was negotiated in New York and the release executed in New York, while in the case of Mr. Preine the settlement was negotiated in New York but the release was executed in Colorado.

It is the contention of the defendants that since the causes of action arose in Virginia and the suits were instituted there, the rights of the parties are controlled by the law of Virginia. The plaintiffs contend that since the settlements with Brooks and Beer Distributors were negotiated in New York the effect of the releases must be interpreted in accordance with the New York law.

It seems clear that under the law of Virginia the release of one tort feasor operates to release all joint tort feasors. This is true even though the release may specifically reserve all rights of action by the plaintiff against those joint tort feasors not parties to the release. Shortt v. Hudson Supply and Equipment Company, 191 Va. 306, 60 S.E.2d 900. It is my understanding that counsel for the plaintiff concede the correctness of this statement.

Under the New York law the release of one joint tort feasor for consideration with a reservation of rights against the other joint tort feasors is considered a covenant not to sue the tort feasor so released and does not operate to release the remaining joint tort feasors, but in an action against the latter there is presented a question of fact as to whether the amount received by the plaintiff in the settlement is payment in full for his injuries. If the facts disclose that the amount so received compensates the injured party fully for his injuries there can be no further recovery, but if the amount received does not fully compensates him he may recover against the remaining joint tort feasors for full damages, the amount of the settlement being credited against the amount of the judgment. New York Debtor and Creditor Law, Sections 231, 232, 233 and 234; Gilbert v. Finch, 173 N.Y. 455, 66 N.E. 133, 61 L.R.A. 807.

It follows that the crucial question here presented is whether the rights of the plaintiffs against the defendants in these actions as affected by the releases are to be determined under the New York law or the law of Virginia.

No case directly in point decided by the Virginia Court has been cited by counsel but a number of cases from other jurisdictions have been brought to my attention.

In Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23, 26, the cause of action arose in Colorado. A release was executed in Pennsylvania, in which state such release is considered against public policy and unenforceable. In determining whether the Colorado law or the law of Pennsylvania governs, the Court said:

"Its validity as a defense in an action

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10 cases
  • Daily v. Somberg
    • United States
    • New Jersey Supreme Court
    • December 1, 1958
    ...against Dealer's Transport Company, may be governed by the Ohio law insofar as the Ohio tort claim is concerned (Preine v. Freeman, 112 F.Supp. 257 (D.C.E.D.V.a.1953)); but its effect on the New Jersey tort claim must, in the light of the pertinent interests and policy considerations, be go......
  • Western Newspaper Union v. Woodward
    • United States
    • U.S. District Court — Western District of Missouri
    • August 8, 1955
    ...1162, 163 S.W.2d 369; Kahn v. Brunswick-Balke-Collender Co., Mo.App., 156 S.W.2d 40, and the numerous cases therein cited. 3 Preine v. Freeman, D.C., 112 F.Supp. 257; Smith v. Atchison, T. S. F. Ry. Co., 8 Cir., 194 F. 79; Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23; Goldstein v. ......
  • Nelson v. Browning
    • United States
    • Missouri Supreme Court
    • June 14, 1965
    ...133 F.Supp. 17, 23; Bittner v. Little, 3 Cir., 270 F.2d 286, ; Daily v. Somberg, 49 N.J.Super. 469, 140 A.2d 429; Preine v. Freeman, D.C., 112 F.Supp. 257, 260; Mayle v. Criss, D.C., 169 F.Supp. 58; Lindsay v. Chicago, B. & Q. R. Co., 7 Cir., 226 F. 23; Goldstein v. Gilbert, 125 W.Va. 250, ......
  • Bittner v. Little
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • December 4, 1958 governs the tort, and so doing will also determine the law that governs the contract of release." See, also, Preine v. Freeman, D.C.E.D.Va. 1953, 112 F.Supp. 257, 260. In 76 C.J.S. Release § 39, p. 672, it is stated "The construction and validity of a release are governed by the law of ......
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