Southern Pacific Co. v. Raish

• Decision Date: 29 May 1953
• Docket Number: No. 13443.,13443.
• Parties: SOUTHERN PACIFIC CO. v. RAISH.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 389 (1953)

SOUTHERN PACIFIC CO. v. RAISH.

No. 13443.

United States Court of Appeals Ninth Circuit.

May 29, 1953.

COPYRIGHT MATERIAL OMITTED

Koerner, Young, McColloch & Dezendorf, John Gordon Gearin and Oglesby H. Young, Portland, Or., for appellants.

Vergeer & Samuels and Charles S. Crookham, Portland, Or., for appellee.

Before MATHEWS and STEPHENS, Circuit Judges, and BYRNE, District Judge.

STEPHENS, Circuit Judge.

The Southern Pacific Company, a corporation, is here appealing from a judgment entered against it in the sum of $14,500. The jury returned a verdict in favor of Alma Raish, appellee, against appellant in the sum of $41,500 as compensation for injuries sustained by her. The sum of the verdict was reduced by the sum of $27,000 paid by another upon the same account.

It is undisputed that appellee was seated in an automobile parked upon the westerly shoulder of an Oregon highway some seventy feet south of appellant's highway overpass. A northbound truck, sometimes referred to in the record as the "red" truck, and a southbound Los Angeles-Seattle Motor Express, Inc., truck with trailer moved under the overpass simultaneously. The northbound vehicle swerved over the middle line of the highway, and the southbound Express vehicle swerved to the right so that its right side wheels were upon the packed graveled shoulder of the highway. The westerly shoulder under the overpass was seventeen inches wide and the easterly shoulder under the overpass was twenty-six inches wide. There was loose gravel on the shoulder. The Express truck's superstructure came in contact with a metal angle brace of the overpass structure or trestle¹ which extended over the highway shoulder, reducing the clearance, and the truck swerved to the left in the path of a northbound bus, then swerved sharply to the right, colliding with a parked car and hitting three more parked cars, coming to a stop upon contact with a telephone pole about two hundred fifteen feet south of the overpass. Appellee was in one one of the cars struck. The driver and truck with the trailer had passed under the overpass before.

Appellee claimed at the trial, and claims here, that the proximate cause of the accident was the negligent construction and maintenance of the angle brace causing an impaired clearance. It is appellant's view that the overpass gave legal clearance for ordinary use of the highway and that use of the shoulder was not an ordinary use of the highway. Further, appellant asserts that the Express truck was being driven at an unreasonable and imprudent speed, that it was not under the driver's control, was without adequate or effective brakes and proper or adequate steering mechanism, that the truck's superstructure was of excessive and unlawful height and that its driver failed to keep a proper lookout, that in the circumstances the injury was not a proximate result of any negligent act of appellant's.

The Express truck driver testified that he swerved to the right to avoid colliding with the oncoming truck, that the impact of the truck with the angle brace caused his vehicle to swerve into the path of the oncoming bus, that to avoid collision with it he swerved his truck to the right and contacted the other cars. He further testified that there was water in his brake drums and that he discovered after the accident that the brake petcock had been knocked off. A portion of the testimony of the driver will be set out later in this opinion by note 4.

The underpass was about twenty-four feet wide between the outer edges of the highway shoulders, but because the overpass and highway did not intersect at right angles the true horizontal clearance was twenty feet and seven inches. The paved highway was divided into one northbound lane and one southbound lane of near equal width, the total pavement being seventeen feet in width. The clearance under the overpass, that is, between the overpass and the pavement, was twelve feet ten or eleven inches, but a metal angle brace impaired the clearance over the westerly shoulder of the highway. See note 1, supra. The Express truck and trailer were within the legal maximum as to size, height, and weight. At the time the truck hit the overpass angle brace, the truck was moving at the rate of thirty miles per hour.

Appellant contends that there was "ample clearance for the Los Angeles-Seattle Motor Express truck to pass through the underpass. According to Embleton's the Express truck driver's testimony, it was forced off the highway by the red truck. Therefore, appellee's charges that the overhead crossing was maintained at a height and width insufficient for the safe passage of persons making ordinary use of the highway is unsupported by the evidence. Even assuming that there was some satisfactory evidence of negligence on the part of appellant, such negligence was not the proximate cause of this accident."

Appellant further contends "that the negligence of the driver of the Los Angeles-Seattle Motor Express truck or the negligence of the driver of the red truck, or the concurrent negligence of each truck driver, constituted the sole, proximate cause of this accident. The contentions here stated are presented on this appeal in several forms, viz., objections to the matters submitted by the trial court to the jury, objections to the giving of certain instructions, the failure to give certain requested instructions, and the failure of the trial court to grant appellant's motion for a directed verdict or its motion for judgment notwithstanding verdict, or in the alternative for a new trial."

The Express company, preferring not to litigate appellee's claim against it for damages, paid appellee the sum of $27,000 in consideration of the receipt of an instrument signed by appellee and designated "Covenant Not to Execute". Appellant contends the instrument effected a complete release, while appellee contends it is in fact but a "Covenant Not to Sue" or in the nature of a "Covenant Not to Sue". The trial judge agreed with appellee and so instructed the jury. We are in accord.

"Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concerted action." Murray v. Helfrich, 1934, 146 Or. 602, 30 P.2d 1053, 1054. The release of one of the joint or concurrent tortfeasors acts as a release of the others as well. Stires v. Sherwood, 1915, 75 Or. 108, 145 P. 645; Spiess v. Sommarstrom Ship Building Co., 9 Cir., 1921, 272 F. 109; Pacific States Lumber Co. v. Bargar, 9 Cir., 1926, 10 F.2d 335, 337; Murray v. Helfrich, supra. However, in many jurisdictions, among them the State of Oregon, the strict release rule may be avoided by use of a "Covenant Not to Sue". Keadle v. Padden, 1933, 143 Or. 350, 362, 20 P.2d 403, 22 P.2d 892, 893; McKay v. Pacific Building Materials Co., 1937, 156 Or. 578, 68 P. 2d 127; Stires v. Sherwood, supra; Pacific States Lumber Co. v. Bargar, supra. A "Covenant Not to Sue" preserves the legal cause of action while at the same time it bars the right of recovery from the particular person with whom the covenant is made. 76 C.J.S., Release § 44; Pellett v. Sonotone Corp., 1945, 26 Cal.2d 705, 160 P. 2d 783, 160 A.L.R. 863. In the latter case the Supreme Court of California, in construing an agreement essentially like one in suit, said: "On the other hand, the agreement does not purport to be, nor can it be construed strictly to be, a covenant not to sue, since it does not contemplate a cessation of the existing litigation, but on the contrary provides for continuation of the trial and places on defendant Compton the burden of defending the action until the rendition of a verdict or a nonsuit. However, since the plaintiff did not expressly or by necessary implication abandon or relinquish his claim or right of action, or agree to accept the payments in satisfaction of his claims, and since the agreement according to its terms could not be pleaded by the covenantee as a defense to the action, and since the only agreement by plaintiff was that he would not levy execution on any property of the covenantee or make demand upon him for payment of the judgment or any portion thereof, we are of the opinion that it is closely akin to a covenant not to sue, that its legal effect should be held to be similar, and that it is not such an instrument as will operate to release other joint tort feasors." Emphasis ours. Pellett v. Sonotone Corporation, supra, 160 P.2d 783, at page 78711.

The reason given in the Oregon cases, Stires v. Sherwood, supra, and Keadle v. Padden, supra, for holding a "Covenant Not to Sue" as no bar to a suit against a non-covenanting tortfeasor, is that joint tortfeasors are liable not only jointly but severally. It follows that as long as the cause of action survives, there is no cause for complaint by the one sued simply because another alleged joint tortfeasor is not sued.

The instrument in the instant case effectually prevents the plaintiff-appellee or anyone else from enjoying any fruits of a suit against the alleged tortfeasor, Express company, while it avoids a release of her claim for full compensation for her injuries through suit against another alleged tortfeasor. Of course, appellant is under no obligation to pay more than the total sum of the verdict less the sum received by appellee under the Covenant. And the court rendered the judgment to conform to these facts. In Pacific States Lumber Co. v. Bargar, 9 Cir., 1926, 10 F.2d 335, 337, there is quoted with approval the following from Smith v. Dixie Park & Amusement Co., 128 Tenn, 112, 120, 157 S.W. 900, 902: "`Indicia of a covenant not to sue may be said to be: No intention on the part of the injured person to give a discharge of the cause of action, or any part thereof, but merely to treat in respect of not suing thereon (and this seems to be the prime differentiating...