Wheat v. Carter

• Decision Date: 04 February 1919
• Docket Number: No. 4544.,4544.
• Parties: WHEAT et al. v. CARTER.
• Court: New Hampshire Supreme Court

106 A. 602

WHEAT et al.

v. CARTER.

No. 4544.

Supreme Court of New Hampshire. Hillsborough.

Feb. 4, 1919.

Exceptions from Superior Court, Hillsborough County.

Petition for injunction by Arthur F. Wheat and another against Ovid Carter, resulting in judgment dismissing the petition. On transfer on plaintiffs' exceptions. Exceptions overruled.

Petition for an injunction. Hearing by Kivel, C. J., who found that the defendant injured his hand on October 10, 1915, and employed the plaintiffs to treat the wound. They burned his hand on November 10th of that year while examining the wound with an X-ray machine. The effect of the burn was noticeable by November 16th, and the full extent of the injury was apparent a few days later. The defendant was employed by Fellows & Son at the time his hand was injured, and on December 10th he gave them a release of all claims and demands he might have against them. Later the defendant brought a suit against the plaintiffs to recover the loss he sustained as the result of their use of the X-ray machine. The court ruled that the release was not necessarily a bar to the suit, and found that the defendant's loss did not result from a single indivisible wrongful act and dismissed the petition. Transferred on the plaintiffs' exceptions to that ruling and finding.

Taggart, Tuttle, Wyman & Starr, of Manchester (M. Jordan, of Manchester, orally), for plaintiffs.

Jones, Warren, Wilson & Manning, of Manchester (Geo. H. Warren, of Manchester, orally), for defendant.

YOUNG, J. It is settled in this state that the release of one joint tort-feasor is a bar to a suit against the others; and that is also true as to the effect of a release when the releasor's loss is caused by the concurrent misconduct of the releasee and others. Carpenter v. W. H. McElwain Co., 78 N. H. 118, 97 Atl. 560. That, however, is all the Carpenter Case decides. The question, therefore, of the effect of a release in a case like this, is an open one in this jurisdiction, and there is nothing which can be called a concensus of opinion in other jurisdictions as to the effect of a release of one wrongdoer on the releasor's right to sue the others even in cases in which his loss results from their concurrent misconduct, to say nothing of its effect when, as in this case, the releasor's loss resulted from successive wrongful acts. Note 14 L. R. A. (N. S.) 322. In other words, an examination of the cases in which the effect of a release of one tort-feasor has been considered will show: (1) That all courts hold that the release of one joint tort-feasor is a bar to a suit against the others; (2) most courts hold that that is true when the releasor's loss is caused by the concurrent misconduct of two or more persons (State, Use of Cox, v. Maryland Electric Ry. Co., 126 Md. 300, 95 Atl. 43, L. R. A. 1917A, 273); and (3) that, when the releasor's loss is caused by the successive acts of two or more persons, most courts hold that the release of one is not necessarily a bar to a second suit. Since this is so, it will be necessary to determine the rule to be applied to decide the rights and liabilities of the parties to this proceeding. When we are considering this question, it will be helpful to have clearly in mind the foundation on which the rule rests.

It is said that the rales of the common law are logical deductions from the fundamental principles of justice, and that these principles are evidenced by the decided cases; and an examination of the cases in which the rule in question has been...