Garstka v. Republic Steel Corp. , 294 Mich. 387 ( 1940 )

I am of the opinion the judgment should be reversed without a new trial and with costs to defendant under the following rule in this jurisdiction, stated in MacDonald v. HenryHornblower Weeks, 268 Mich. 626, 629:

"So, where one tortfeasor is released from liability on payment of part of the damage, the others are discharged although the contract expressly reserves right of action against them. McBride v. Scott, 132 Mich. 176 (61 L.R.A. 445, 102 Am. St. Rep. 416, 1 Ann. Cas. 61, 13 Am. Neg. Rep. 335);Sunlin v. Skutt, 133 Mich. 208; Lindsay v. Acme Cement PlasterCo., 220 Mich. 367; Moffit v. Endtz, 232 Mich. 2."

Suit was brought against the Nicholson Transit Company for negligence causing personal injury to plaintiff. Later, by amendment, the Republic Steel Corporation was made a defendant as a joint tortfeasor. Thereafter, plaintiff, by indenture, under seal, witnessed and notarized, in consideration of $7,500 paid to him by the Nicholson Transit Company, expressly covenanted with the transit company to discontinue his action against that company, reciting, however, that the covenant not to sue the transit company did not in any wise affect the suit pending against the Republic Steel Corporation to recover the full measure of damages occasioned him. Leave was then asked of the court to discontinue as to the original defendant, the transit company, and the court permitted such discontinuance without prejudice. An amended declaration was then filed against the steel corporation as sole defendant. At the trial the court instructed the jury, if they found for the plaintiff:

"Now, having arrived at the present value of loss of his future earnings, you then will add, total all of the different factors that I have mentioned, find the total loss that he will sustain, and then subtract from that total loss the sum of $7,500 which he has already obtained from the Nicholson Transit Company The reason for requiring that subtraction of that $7,500 is that he is entitled to only one recovery for the injury, and I have given you the rules for ascertaining what the whole injury is, and he, having received $7,500 on account already, must give this defendant credit for that $7,500 from the sum of the total injury."

Defendant contends this settlement with one alleged tortfeasor was a satisfaction as to the other joint tortfeasor, and the court was in error in not so holding upon the various motions made by defendant, and also in the mentioned instruction to the jury.

Here we have an instance of a suit against an alleged tortfeasor, amended by suit against an alleged joint tortfeasor, settlement, while such suit was pending, with one alleged joint tortfeasor, followed by verdict under instruction of joint liability, with deduction of liability of one to the amount received by plaintiff by settlement with the other, and judgment thereon. This treated liability as joint and brings the case squarely within the rule above mentioned and not within the rule applied in Slinkard v. National Machine ToolCo., 274 Mich. 662, and Cook v. City Transport Corp., 272 Mich. 91.

The released defendant paid plaintiff $7,500 for discontinuance of the action pending against it as a joint tortfeasor, and this amount is reflected in reduction of the judgment against its fellow tortfeasor. As before stated, this was error.

CHANDLER, J., concurred with WIEST, J. BUTZEL, J., did not sit. The late Justice POTTER took no part in this decision.