Western Express Co. v. Smeltzer

• Decision Date: 12 February 1937
• Docket Number: No. 7065-7067.,7065-7067.
• Citation: 88 F.2d 94,112 ALR 74
• Parties: WESTERN EXPRESS CO. v. SMELTZER. SAME v. LECHLGHTNER. SAME v. BERKEY.
• Court: U.S. Court of Appeals — Sixth Circuit

112 ALR 74, 88 F.2d 94 (1937)

WESTERN EXPRESS CO. v. SMELTZER.

SAME v. LECHLGHTNER.

SAME v. BERKEY.

Nos. 7065-7067.

Circuit Court of Appeals, Sixth Circuit.

February 12, 1937.

Donald M. Marshman, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for appellant.

Marvin C. Harrison, of Cleveland, Ohio (Harrison & Marshman, of Cleveland, Ohio, and Murphy O. Tate, of Chicago, Ill., on the brief), for appellees.

Before HICKS, SIMONS and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

Appeals from judgments based on jury verdicts in three personal injury actions which arose out of the same facts and were consolidated for trial. The actions were instituted by representatives of one party killed and two injured in the accident, who for convenience will be referred to herein as appellees. The court directed a verdict for three of five joined defendants, and later granted a motion requiring appellees to elect against which of the two remaining defendants they should proceed. Appellees elected to proceed against appellant, and the action as to Delmar Horning, the other defendant, was accordingly dismissed without prejudice.

At about 1:45 in the morning of August 19, 1933, appellees were returning from the Chicago Fair along with twenty-seven others, all of whom shared in the expenses of the trip, riding in an easterly direction in a truck having a cattle-rack or stake body in which benches were placed for the passengers. About three miles west of South Bend, Indiana, the truck collided with a tractor and trailer proceeding in a westerly direction, driven in appellant's service by Harold Schaab. The tractor was owned by Horning, and was hauling a load for appellant in a trailer owned by the Cleveland Cartage Company, appellant's affiliate. The left front corner of the trailer struck the left front corner of the cattle truck, knocking off the stakes and throwing the passengers out on the road.

Appellant contends (1) that the court improperly excluded material evidence; (2) that appellant was entitled to a directed verdict, and (3) that the court in its charge deprived it of the defense of contributory negligence.

As to the first point, appellant claims that the court erred in excluding a certain release executed prior to the accident by the passengers on the truck in favor of the truck owner, a copy of which is as follows:

"Whereas, Orvil M. Metzler is contemplating going to the A Century of Progress International Exposition at Chicago, Illinois, leaving Wakarusa, Indiana, on the 18th day of August, 1933, and

"Whereas, the undersigned wish to accompany the said Orvil M. Metzler and attend said exposition, therefore it is agreed as follows:

"That in consideration of the carriage of the undersigned upon the Truck of said Orvil M. Metzler to Chicago and return, whether with or without charge for such carriage, each of the undersigned severally hereby voluntary assume all risk of accident or damage to his or her person and property, and hereby release and discharge the said Orvil M. Metzler from every claim, liability or demand of any kind for or on account of any personal injury or damage of any kind sustained, whether caused by the negligence of said Orvil M. Metzler or otherwise.

"Dated Wakarusa, Indiana, this 18th day of August, 1933."

The jury, as later shown in detail, found both drivers negligent. Appellant therefore urges that the release of Metzler discharged all tort feasors. The general common law rule is that a release of one joint tort feasor after the cause of action arises, and in satisfaction thereof, releases all joint tort feasors from liability for the same tort. Spiess v. Sommarstrom Ship Building Co., 272 F. 109 (C.C.A.9). Cf. Pacific States Lumber Co. v. Bargar, 10 F.(2d) 335 (C.C.A.9). The rule is based on the theory that the release constitutes a satisfaction and extinguishes the cause of action. This is true even though there is a reserved intention to look to other wrongdoers for further damages or compensation. Cf. Tanana Trading Co. v. North American Trading & Transportation Co., 220 F. 783 (C.C.A.9). In this case it was assumed that the consideration given was equivalent to full compensation, and the opinion quotes with approval from Farmers' Savings Bank v. Aldrich, 153 Iowa, 144, 133 N.W. 383, and holds that the injured party is entitled to but one satisfaction. Clabaugh v. Southern Wholesale Grocers' Ass'n, 181 F. 706 (C.C. Ala.).

Where the amount received as consideration is not full compensation for the injury, certain courts construe the release as a covenant not to sue the tort feasor released, and as not discharging other tort feasors. Cf. Carey v. Bilby, 129 F. 203 (C. C.A.8); Smith v. Dixie Park & Amusement Co., 128 Tenn. 112, 121, 157 S.W. 900. The nature of the injury giving rise to the cause of action has sometimes been held to have bearing on the sufficiency of the compensation. The consideration for the release is presumed more persuasively to constitute full satisfaction in causes where the damages are indeterminate than where the sum received in settlement is materially less than the determinable damages actually experienced. But this phase of the question is subsidiary to the question whether the satisfaction has been complete. Ellis v. Esson, 50 Wis. 138, 6 N.W. 518, 36 Am.Rep. 830. When the covenant plainly is a covenant not to sue one tort feasor, some courts hold that none of the other joint tort feasors are discharged. Pacific States Lumber Co. v. Bargar, supra; Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L.R.A.(N.S.) 475, Ann.Cas.1913B, 267.

None of these decisions deals with an instrument executed prior to the accruing of the cause of action, but they shed light upon the present problem. Appellees paid their proportionate share of the full cost of the trip in return for which they obtained the ride to and from Chicago. It can not reasonably be said that as against a stranger to the contract the ride alone was compensation also for damages resulting from possible death or serious injury.

Since the doctrine relied on rests upon the principle that an action grounded upon joint tort is one and indivisible and is extinguished by the release, the reason underlying the doctrine does not here exist. As the instrument extinguished no existing cause of action, the District Court correctly...