Stires v. Sherwood

• Decision Date: 19 January 1915
• Parties: STIRES v. SHERWOOD ET AL.
• Court: Oregon Supreme Court

145 P. 645

75 Or. 108

STIRES v. SHERWOOD ET AL.

Supreme Court of Oregon

January 19, 1915

In Banc.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Harry Stires against Benjamin F. Sherwood and others. Judgment for defendants, and plaintiff appeals. On motion to dismiss appeal. Appeal dismissed.

Harold V. Newlin and John A. Jeffrey, both of Portland for appellant. Henry A. Davie, W. P. La Roche, City Atty Platt & Platt, Beach, Simon & Nelson, and Griffith, Leiter &amp Allen, all of Portland, for respondents.

BURNETT J.

The defendants are composed of 14 members of the police force of the city of Portland and certain surety companies who subscribed their official bonds. The action is for false imprisonment. After reciting the appointment of the individual defendants and their several qualifications by filing a bond underwritten by the different surety companies mentioned, the complaint alleges that the defendant officers while acting together in their capacity as patrolmen, but without any order, warrant, or process of any court authorizing them to do so, arrested the plaintiff against his will on a pretended charge of having committed some felony, the nature of which was not disclosed to him, except by intimating to him that he was an opium smoker. The quality and extent of his subsequent imprisonment and discharge without any hearing are detailed in the complaint. Alleging damages in the sum of $5,000, he demands judgment against all the defendants. In their joint answer the defendants admit that the individual officers were acting together in the affair of which complaint is made, and allege other things not necessary to be here mentioned. The reply traversed the allegations of the answer. At a subsequent jury trial when the plaintiff rested his case, the court directed a nonsuit as to all the parties except two officers and their sureties, and at the end of all the evidence directed a verdict in favor of the remaining defendants. The plaintiff afterwards appealed. The defendant Sherwood now moves for an order dismissing the appeal for the reason that the cause of action sued upon has been extinguished by the act of the plaintiff and there are no real issues to be determined upon the appeal. Appended to the motion is an affidavit of the attorney for the moving defendant reciting the history of the case and stating substantially that the plaintiff had settled with and discharged seven of the individual defendants with their surety company for $225, and six others and their underwriter for $200, for the injuries which he claimed to have suffered as stated in his complaint. Annexed to the affidavit as an exhibit is a copy of a written release of the six and their surety substantially as follows:

"Know all men by these presents, that I, Harry Stires, * * * for and in consideration of the sum of $200 to me in hand paid by the National Surety Company, a corporation, * * * and Lee Martin, A. L. Long, M. W. Lillis, Douglas Leisy, W. L. Miller and Enoch A. Slover, all of Portland, Oregon, the receipt whereof is hereby acknowledged, hereby release and forever discharge said National Surety Company and said Lee Martin, A. L. Long, M. W. Lillis, Douglas Leisy, W. L. Miller and Enoch A. Slover, of and from all liability to me for, and on account of, and by reason of, the damages sustained by me on account of having been forcibly removed from my room in the Idora Hotel in the city of Portland and placed under arrest by the said (individuals, naming them) on the 22d day of June, 1912, and from all claim, demand, right, or cause of action of whatever nature arising or to arise from, or on account of, my arrest on the 22d day of June, 1912, and on account of my imprisonment on the 22d, 23d, and 24th, and 25th days of June, 1912, it being the express intention of the undersigned, Harry Stires, to release the said (individuals, naming them) from any and all liability on account of the acts hereinbefore mentioned, which acts were performed by the aforesaid parties while they were acting as police patrolmen of the city of Portland, state aforesaid, and it also being the express intention of the undersigned, Harry Stires, to release, acquit, and forever discharge the said National Surety Company, said company being surety on the bonds of the aforesaid police patrolmen (naming them) at the time the undersigned was arrested and imprisoned as aforesaid. In witness whereof, I have hereunto set my hand and seal this 3d day of September, 1914.

"Harry Stires. [ Seal.]"

This instrument was executed under seal in the presence of two subscribing witnesses and acknowledged by Stires before a notary public. In a counter affidavit plaintiff's attorney declares substantially that, after the judgment of the circuit court was rendered, he attempted to settle the whole controversy; but, as the defendant Sherwood and his surety refused to pay any sum whatever in discharge of plaintiff's claim, the affiant negotiated with the other defendants with the result stated above. He contends that he did not contemplate the entire satisfaction of plaintiff's claim, but intended only to effect a partial release and satisfaction of the same. He appends copies of correspondence had between himself and the attorneys of the released defendants, too voluminous to reprint in full in an opinion.

It will be observed that there are no reservations or conditions in the release, the terms of which are admitted by the parties. On the face of that document, it is an absolute discharge of the parties named from all liability on account of the cause of action described in the complaint. The plaintiff alleges, and it is admitted by the defendants in their joint answer, that the parties who made the arrest and committed the other acts complained of in the complaint were acting together with one common purpose. The allegation and admission fixed the status of the defendant officers as joint tort-feasors, if they are at all to blame. The well-established rule of law is that the absolute discharge of one joint tort-feasor from liability on account of the alleged tort is a release of all the others. The reason of the precept is that the plaintiff has but one cause of action and can reap but one satisfaction.

There are some apparent variations from this doctrine. One is that an agreement not to sue one of the culpable parties is no bar to an action against the other. This depends upon the principle that joint tort-feasors are jointly and severally liable and that any individual against whom action is instituted cannot complain of the nonjoinder of his fellows. It can make no difference in principle whether the nonjoinder is a gratuity on the part of the plaintiff, or whether he has been moved to that course by monetary considerations. The authorities strongly support this apparent exception: Bell v. Perry, 43 Iowa, 368; Texarkana Tel. Co. v. Pemberton, 86 Ark. 329, 111 S.W. 257; Louisville Times Co. v. Lancaster, 142 Ky. 122, 133 S.W. 1155; Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267; Smith v. Dixie Park & Amusement Co., 128 Tenn. 112, 157 S.W. 900; Robertson v. Trammell, 98 Tex. 364, 83 S.W. 1098; Id., 37 Tex.Civ.App. 53, 83 S.W. 258.

It is also stated by some writers and judges that a partial settlement only may be effected without prejudice to the chose in action against the others, where one of the wrongdoers pays a valuable consideration to the plaintiff and secures from him a release when it is expressly agreed between the contracting parties that the discharge of the one shall not bar the action against the remaining defendants. In such cases, however, the amount paid extinguishes pro tanto the amount of damages otherwise recoverable from the other parties in subsequent litigation. The authorities favoring this proposition proceed upon the theory that the intention of the parties to the contract should govern where it is expressed in the terms of the stipulation between them. Supporting this view are such cases as Atchison, etc Ry. Co. v. Classin (Tex. Civ. App.) 134 S.W. 358; St. Louis, I. M. & S. Ry. Co. v. Bass (Tex. Civ. App.) 140 S.W. 860; J. Rosenbaum Grain Co. v. Mitchell (Tex. Civ. App.) 142 S.W. 121; Kropidlowski v. Pfister & Vogel Leather Co., 149 Wis. 421, 135 N.W. 839, 39 L. R. A. (N. S.) 509; Blackmer v. McCabe, 86 Vt. 303, 85 A. 113; Edens v. Fletcher, ...