Burke v. W. R. Chamberlin & Co.

McCOMB, J., dissenting.

I dissent. It is my belief that the opinion of the majority of this court fails to distinguish between the doctrine applicable in the case of a retraxit and the doctrine which should be applied in the case of the release of one joint tort feasor. It is my view that the latter doctrine is applicable to the facts of the present case. These facts are:

May 11, 1939, the appealing defendant W. R. Chamberlin was the managing owner of the steamship “W. R. Chamberlin, Jr.” The vessel was moored alongside a dock in Los Angeles Harbor while lumber was being unloaded from the vessel to the dock. The San Pedro Lumber Company was assisting in the removal of the cargo. One of its employees, while operating a lumber carrier, struck a block of wood which had been placed on the dock, causing the block to fly through the air and strike and injure plaintiff, who was working in the hold of the ship. Subsequently plaintiff filed a complaint against the San Pedro Lumber Company to recover damages for his injury.

Thereafter plaintiff and the San Pedro Lumber Company entered into an agreement reading in part as follows:

“WHEREAS, on or about the 11th day of May, 1939, the undersigned, James E. Burke, hereinafter sometimes referred to as ‘Burke,’ while employed on the Steamship ‘W. R. Chamberlin, Jr.,’ sustained injuries occasioned by being struck on the head and back with a piece of timber; and

“WHEREAS, Burke claims that the injuries sustained by him as aforesaid were a proximate result of negligence on the part of an employee of San Pedro Lumber Company, a California corporation; and

“WHEREAS, Burke has heretofore caused to be filed in the Superior Court of the State of California, in and for the County of Los Angeles, an action brought against said San Pedro Lumber Company for damages in the amount of Fifteen Thousand Dollars ($15,000.00) for said injuries so sustained; and

“WHEREAS, San Pedro Lumber Company denies that it or any of its employees or agents were negligent or responsible for the injuries sustained by Burke;

“NOW, THEREFORE, in consideration of the sum of One Thousand Seven Hundred and Fifty Dollars ($1,750.00) to Burke in hand paid, receipt of which is hereby acknowledged, “THIS INSTRUMENT WITNESSETH:

“ (1) Burke agrees that said above mentioned action against the San Pedro Lumber Company shall be forthwith dismissed and Burke does hereby authorize and direct his attorney, Herbert R. Lande, to cause said action to be forthwith dismissed.

“ (2) Burke agrees that he will not file suit, or cause suit to be filed, founded on the accident occasioning said injuries, against San Pedro Lumber Company, or its successors in business, or its stockholders or directors in any court and that he will not file or prosecute any claim for damages or other compensation against San Pedro Lumber Company before any Board, Commission, Bureau, or administrative body, for any damages or compensation to which said Burke, save for this agreement, might otherwise be entitled, based on the injuries sustained by him in said accident, or for any other cause whatever arising at any time prior to the date of this instrument.

“ (3) Burke agrees that, in the event he brings any action of whatsoever kind or nature, founded on the accident occasioning said injuries, either in any court or before any board, Commission, Bureau, or administrative body, against any person, firm, corporation or vessel, he will cause notice of such action and the proceedings therein to be given Edward Hervey, Attorney-at-Law, 458 South Spring Street, Los Angeles, California, to the end that said San Pedro Lumber Company may be advised of said proceeding and, in the event any right or subrogation or contribution should eventuate in favor of any such person, firm, or corporation or vessel, against San Pedro Lumber Company, then Burke shall, and he does, hereby agree that he will protect, indemnify and save harmless the said San Pedro Lumber Company from any loss occasioned thereby. ’ ’

On October 26, 1939, plaintiff filed with the clerk of the Superior Court of the state of California a dismissal of the action which he had theretofore filed against the San Pedro Lumber Company.

It is conceded that the latter company paid to the plaintiff as consideration for the above mentioned agreement and dismissal the sum of $1,750. Defendant in the present action pleaded as a defense in its answer the facts relative to .the settlement between the plaintiff and the San Pedro Lumber Company.

This is the sole question necessary to be determined:

Did the above stated facts constitute the release of one who was a joint tort feasor with defendant, thereby releasing defendant from any liability to plaintiff on the cause of action set forth in the present complaint?

This question must be answered in the affirmative. It is settled that the release of one joint tort feasor releases all of the joint tort feasors (Bogardus v. O’Dea, 105 Cal. App. 189, 192 [287 Pac. 149]; 22 Cal. Jur. (1925) 763, sec. 12; vol. 2, Bancroft’s Pleading, Practice and Remedies, Ten Year Supp. (1937) 1604, sec. 537).

It is likewise established that the bar does not arise from any particular form that the proceedings assume but from the fact that the injured party has actually received satisfaction (Urton v. Price, 57 Cal. 270, 272).

In Bogardus v. O’Dea, supra, at page 192, this court said:

“. . . As said in Chetwood v. California Nat. Bank, 113 Cal. 414 [45 Pac. 704, 707] : ‘While plaintiff may sue one or all of joint tort feasors, and while he may maintain separate actions against them, and cause separate judgments to be entered in such actions, he can have but one satisfaction. Once paid for the injury he has suffered, by any one of the joint tort feasors, his right to proceed further against the others is at an end . . . The reason is quite obvious. By his withdrawal, plaintiff announces that he has received satisfaction for the injury complained of, and it would be unjust that he should be allowed double payment for the single wrong. It matters not, either, whether the payment made was in a large or in a small amount. If it be accepted in satisfaction of the cause of action against the one, it is in law a satisfaction of the claim against them all. ’ (Italics ours.) In Flynn v. Manson, 19 Cal. App. 400 [126 Pac. 181], the action was against several defendants for the recovery of damages for tort. The plaintiff dismissed as to one of the defendants, the dismissal, however, containing a provision that it was not the intention of the plaintiff to release the other defendants from liability. The remaining defendants moved for dismissal of the action as to them, upon the same ground as that urged in the instant case. Affirming the judgment of dismissal which followed the order granting this motion, the court held that the release, notwithstanding the saving clause, was a discharge not only as to the defendant as to whom the dismissal was filed, but as to his co-defendants. To the same effect are the decisions in Tompkins v. Clay Street R. R. Co., 66 Cal. 163 [4 Pac. 1165], and Urton v. Price, 57 Cal. 270, 272.”

Applying the foregoing rules to the facts of the instant case, it is evident that the plaintiff intended to receive and did receive satisfaction for the injury he had received from the San Pedro Lumber Company, and intended to and did release such party from any and all liability in connection with the injuries he had suffered. It therefore appears that plaintiff, having released one of two joint tort feasors, as a matter of law released the other tort feasor from further liability, with the result that the trial court was in error in giving judgment to the plaintiff in the present action.

Lewis v. Johnson, 12 Cal. (2d) 558 [86 P. (2d) 99], is inapplicable to the facts of the instant case, for the reason that the document in question in such case was denominated, “Covenant not to Sue and Covenant Not to Sue Further,” and was in fact a covenant not to sue; while the document in the present case, coupled with the dismissal of the action filed by plaintiff against San Pedro Lumber Company constituted in fact a release of the latter and satisfaction of plaintiff’s claim for damages resulting from his injury. Had plaintiff commenced a second action against San Pedro Lumber Company upon the same cause of action set forth in the first complaint, the defendant company could have pleaded the agreement to dismiss the first action for a consideration of $1,750 and the dismissal with the written consent of the attorneys of record in that action as a bar to the subsequent suit. The rule is stated thus in Hawber v. Raley, 92 Cal. App. 701, 704 [268 Pac. 943] :

“It would therefore appear to be a rule of construction that where two or more tort feasors are involved and the document is such that the convenantee may plead the same in abatement of any action which the covenantor might subsequently commence in breach of the obligation contained in said document and the remedy thereunder is not restricted to an action on the covenant, the document constitutes a release and satisfaction, and not a mere covenant not to sue. ’ ’

The conclusions which I have reached render it unnecessary for me to discuss the various other points presented by counsel.

For the foregoing reasons in my opinion the judgment should be reversed.

Appellant’s petition for a hearing by the Supreme Court was denied June 22, 1942.