Tennant v. Craig

• Decision Date: 10 April 1973
• Docket Number: No. 13182,13182
• Citation: 156 W.Va. 632,195 S.E.2d 727
• Court: West Virginia Supreme Court
• Parties: Rose A. TENNANT, Guardian, etc., et al. v. Gerald R. CRAIG.

Page 727

195 S.E.2d 727

156 W.Va. 632

Rose A. TENNANT, Guardian, etc., et al. v. Gerald R. CRAIG.

No. 13182.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 6, 1973.

Decided April 10, 1973.

Syllabus by the Court

1. 'Where a payment is made, and release obtained, by one joint tort-feasor, other joint tort-feasors shall be given credit for the amount of such payment in satisfaction of the wrong.' Point 2, Syllabus, Hardin v. New York Central Railroad Company, 145 W.Va. 676, 116 S.E.2d 697.

2. 'Partial satisfaction of the injured person by one joint tort-feasor is a satisfaction, Pro tanto, as to all.' Point 5, Syllabus, New River & Pocahontas Consolidated Coal Company v. Eary, 115 W.Va. 46, 174 S.E. 573.

3. The facts set forth in a petition in a summary proceeding filed pursuant to Code, 1931, 44--10--14, the purpose of which is to obtain the permission of the court to settle a claim on behalf of an infant, do not constitute judicial admissions which would prohibit the infant in a subsequent suit against a third party from amending his complaint to allege that his injuries resulted from the concurrent negligence of the third party and the party with whom the infant had previously made a settlement.

Robert W. Dinsmore, L. Edward Friend, II, Donald E. Price, Morgantown, for appellants.

Baker & Armistead, Charles S. Armistead, Morgantown, for appellee.

CAPLAN, Judge.

This is an appeal from a judgment of the Circuit Court of Monongalia County in an action instituted by the plaintiffs, Rose A. Tennant, guardian for Bernice Tennant, an infant, and Stella B. Tennant, guardian for Byron Tennant, an infant, for the recovery of damages suffered by said infants by reason of the alleged negligence of the defendant, Gerald R. Craig. Upon the dismissal of this action pursuant to a motion of the defendant under Rule 41(b) of the West Virginia Rules of Civil Procedure the plaintiffs prosecute this appeal.

This controversy arose as a result of a collision between an automobile occupied by Byron Tennant, the driver, Bernice Tennant, his wife, and John Tennant passengers, and a pickup truck driven by defendant Craig. According to the complaint filed by the plaintiffs, the Tennants, on September 17, 1969 were travelling in an easterly direction on West Virginia Route No. 7, near Morgantown. At the same time and place the defendant, operating a 1966 model Ford pickup truck, while also driving in an easterly direction and following the Tennants' vehicle, collided with the rear end of said forward automobile. It is alleged in the complaint that the collision and resultant injuries to Bernice and Byron Tennant were caused by the negligence of Gerald R. Craig. It is further alleged therein that the Tennants suffered severe injuries as a result of said negligence and damages were requested in the sum of $320,000.00 for Bernice Tennant and $114,000.00 for Byron Tennant.

While the complaint alleges that the aforesaid injuries were the result of the negligent driving of defendant Craig and makes no mention of a collision with another vehicle, the record reveals that the Tennant automobile was struck head-on by a car driven by Charles B. Spitznogle immediately prior to or at the same time the rear-end collision occurred with the Craig pickup truck. As a result of the head-on collision, which obviously at least contributed to the injuries suffered by the Tennants, a settlement for such injuries was made by Spitznogle with the Tennants.

Bernice and Byron Tennant, being infants, it became necessary under the provisions of Code, 1931, 44--10--14, for the settlement to be approved by the Circuit Court of Monongalia County. Pursuant thereto, petitions were filed by the aforesaid guardians of these infants for the approval of such settlements. The petitions revealed that as the car driven by Charles B. Spitznogle rounded a curve it slid on the wet pavement across the center line and struck the Tennant vehicle. The petitions further detailed the injuries suffered by each of the Tennants and set out the requested amounts of settlement which were in the sum of $25,000.00 for Bernice Tennant and $19,000.00 for Byron Tennant. The petitions in these summary proceedings do not make any mention of the rear-end collision in which defendant Craig was involved but related only the facts concerning the Spitznogle and Tennant vehicles. Subsequent to the settlement with Spitznogle, the plaintiffs instituted this action.

Prior to the date upon which this action was set for trial the defendant moved that the plaintiffs not be permitted to refer to the settlements made with Spitznogle and that the plaintiffs be limited in their evidence to injuries sustained as a result of the rear-end collision. When the court sustained these motions the plaintiffs filed a motion for permission to amend their complaint so as to allege all of the evidence surrounding the collision which would show, according to the allegations, Spitznogle and Craig were joint tort-feasors. The court overruled the motion and would not permit an amendment of the complaint on the ground that the position desired to be taken in the amended complaint would be inconsistent with that taken in the summary proceedings and that the admission of facts in the summary proceedings was binding and conclusive as to the plaintiffs. Thereupon the plaintiffs advised the court that they could not separate the injuries caused by the rear-end collision from those caused by the head-on collision and requested the court to enter summary judgment for the defendant. This, the court refused to do. Alleging that the plaintiffs thereby failed to further prosecute their case the defendant moved for dismissal under R.C.P., Rule 41(b). The court sustained the defendant's motion and by its order entered on May 28, 1971 this action was dismissed.

Although the plaintiffs assign numerous errors on this appeal, the principal issue to be resolved is the propriety of the ruling of the trial court wherein it refused to permit the plaintiffs to amend their complaint to allow them to allege concurrent negligence by joint tort-feasors as the cause of the injuries of which complaint is made.

It is acknowledge by the defendant that a plaintiff may elect to sue one or more joint tort-feasors. However, the defendant further says that inasmuch as the plaintiffs elected to settle with Spitznogle for all of the damages suffered as a result of the accident, they could not now seek recovery against defendant Craig. An examination of the orders entered in the summary proceedings, wherein the settlements for the infants were approved, shows that Mr. Spitznogle was released 'for all damages, claims and demands of every kind and character of (Byron and Bernice Tennant) * * * against him, the said Charles B. Spitznogle.' The settlement did not purport to cover all the damages suffered by the infants, but constituted an agreement to release Spitznogle for the amounts therein designated.

As noted by the defendant, the plaintiffs are entitled to only one satisfaction for the injuries suffered as a result of the accident. The compromise settlement with Spitznogle is a part of such satisfaction. This Court said in Point 2 of the Syllabus of Hardin v. New York Central Railroad Company, 145 W.Va. 676, 116 S.E.2d 697, 'Where a payment is made, and release obtained, by one joint tort-feasor, other joint tort-feasors shall be given credit for the amount of such payment in the satisfaction of the wrong.' In other words, payment by one joint tort-feasor under a compromise settlement is satisfaction Pro tanto as to all. See Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 and New River & Pocahontas Consolidated Coal Company v. Eary, 115 W.Va. 46, 174 S.E. 573. Point 5 of the Syllabus of the latter case reads: 'Partial satisfaction of the injured person by one joint tort-feasor is a satisfaction, Pro tanto,...