Weldon, E. Durward

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University of Kentucky

Kentucky Law JournalVolume 35 | Issue 2 Article 81947Torts--Joint and Concurrent Tortfeasors Defined--Effect of Release in KentuckyE. Durward WeldonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationWeldon, E. Durward (1947) "Torts--Joint and Concurrent Tortfeasors Defined--Effect of Release in Kentucky," Kentucky Law Journal:Vol. 35 : Iss. 2 , Article 8.Available at: https://uknowledge.uky.edu/klj/vol35/iss2/8TORTS-JOINT AND CONCURRENT TORTFEASORS DEFINED-EFFECT OF RELEASE IN KENTUCKYIn the recent Kentucky case of Miller's Adm'x. v. Picard,' theCourt of Appeals, like many other courts, has created a trap for theunwary in the use of the 'term joint tortfeasor and has seeminglydeparted from certain established rules in this state. Briefly, thefacts were these: M employed S, the owner and operator of a taxi-cab, to transport her, and during the course of the journey, thesheriff, who held a warrant for the arrest of S, sought to stop his cab.S attempted to run the sheriff down. Then the latter fired into thecab and killed M. M's administratrix filed suit against S, askingdamages in the sum of $10,000. A settlement for $350 was reached,however, by which the administratrix gave a full and complete re-lease to S. Then the sheriff was sued. The lower court dismissed thepetition. On appeal, the Court of Appeals affirmed the decision andheld that where independent wrongful acts of two or more personsconcur in contributing to and producing a single injury, such personsare joint tortfeasors and that a settlement with and a full release ofone joint tortfeasor bars any action against the other.Were the defendants in the Miller case joint tortfeasors or werethey wrongdoers whose independent and concurrent acts combinedto produce a single result? The English rule is that such persons arenot joint tortfeasors3  Although joinder of concurrent wrongdoershas been commonly allowed under the codes of procedure in theUnited States,' the term joint tortfeasors should not be applied tothem, as Mr. Prosser says, through "careless usage."' And again hewrites: "No reason can be found for refusing to allow joinder withoutmaking the parties 'joint' for any other purpose than the convenienttrial of the case."'Among the sources on which the principal case relied to sup-port the view that where independent wrongful acts of two or morepersons concur in contributing to and producing a single injury, suchpersons must be regarded as joint tortfeasors, was a section fromAmerican Jurisprudence.' There, however, both rules are stated;and there is shown to be a clear conflict in the cases. The Kentucky101 Ky. 157, 191 S. W. 2d 202 (1945)."The Koursk, (1924) P. 140.'KENTUCKY CIVIL CODE (Carroll, 1938) Sec. 83. For the appli-cation of this section, see Miller v. Weck, 186 Ky. 552, 217 S. W. 904(1920); Pickerill v. City of Louisville, 125 Ky. 213, 100 S. W. 873(1907).'PROSSER, TORTS (1941) 1103.'Id. at 1104.'52 AMERICAN JURIsPRUDENCE (1944) 451-452. In accord withthe view that such persons are not joint tortfeasors, see Bonte v.Postel, 109 Ky. 64, 58 S. W. 536 (1900). A very clear explanation isKENTUCKY LAW JOURNALCourt also cited Louisville Gas & Electric Co. v. Beaucond7 to sup-port its holding that the sheriff and the taxi driver were joint tort-feasors. (Actually the defendants in the Beaucond case were in-dependent and concurrent tortfeasors.) But in so doing it inadver-tently overruled the earlier case on another point, namely, that arelease of one joint tortfeasor does not release the others. It wouldseem to be the correct interpretation of the law that only joint lia-bility is intended. It is not meant that the defendants should bejoint tortfeasors in the real sense of the term but only that they arejoined for the purpose of the suit.The second problem is that of the release of one wrongdoer onlyby the injured plaintiff. The cases in Kentucky prior to Miller'sAdm'x. v. Picard are in substantial accord to the effect that a releaseof,' or a judgment against, one joint tortfeasor does not bar a suitagainst remaining tortfeasors unless full satisfaction has been re-ceived in the first instance. Many of those decisions contain the samestatement as in the Miller case which results in treating concurrentbut independent wrongdoers as joint tortfeasors. If the Kentuckycourts have allowed one tbrtfeasor acting in concert with another tobe released without prejudice to later settlements with the others,it should be true, a fortiori, that one who is a concurrent tortfeasormay be released without barring a later recovery against the other,or others.Whether the tort is joint or concurrent, the test to be usedshould be not, was there a release of one,0 but has full satisfactiongiven in the case of Dickson v. Yates, 194 Iowa 910, 188 N. W. 948,951 (1922), where it is said:"The joint liability of wrongdoers in tort is a joint and sev-eral liability, but exists only where the wrong itself is joint. Amere similarity of design or conduct on the part of the indepen-dent actors is not sufficient to constitute such actors joint tort-feasors. . . . If the tort of two or more parties is several whencommitted, it does not become joint by reason of the union ofthe consequences of the several torts in producing any injury."'188 Ky. 725, 224 S. W. 179 (1920).'Standard Sanitary Mfg. Co. v. Brian's Adm'r., 224 Ky. 419, 6S. W. 2d 491 (1928); Louisville Gas & Electric Co. v. Beaucond, 188Ky. 725, 224 S. W. 179 (1920); City of Louisville v. Nicholls, 158 Ky.516, 165 S. W. 660 (1914); City of Covington v. Westbay, 156 Ky.839, 162 S. W. 91 (1914); Louisville & Evansville Mail Co. v. Barnes'Adm'r., 117 Ky. 860, 79 S. W. 261 (1904).'Brown's Adm'r. v. Little, 160 Ky. 765, 170 S. W. 168 (1914);United Society of Shakers v. Underwood, 74 Ky. (11 Bush) 265(1875); Sharp v. Gray, 44 Ky. (5 B. Mon.) 4 (1844); Elliot v. Porter,35 Ky. (5 Dana) 299 (1837)."A release may be made upon a consideration, which may bevery small. It may also reserve the right to seek compensation fromthe remaining party, as in Louisville Times Co. v. Lancaster, 142 Ky.122, 133 S. W. 1155 (1911). Somewhat like a release is a covenantnot to sue, which has been held not to release other wrongdoers inthe cases of Matheson v. Kane, 211 Mass. 91, 97 N. W. 638 (1912);and Joyce v. Massachusetts Real Estate Co., 173 Minn. 310, 217 N. W.337 (1928).STUDENT NOTESbeen received for the entire injury?' The Court held, however, thata release of one concurrent tortfeasor for $350 released all by barringthe subsequent suit against the sheriff. Prior Kentucky cases haveadopted the better view by saying that unless full satisfaction is in-tended by the party giving the release, he may later sue those notreleased. For example, in the case of City of Covington v. Westbay,"the plaintiff received $750 from the street railway company and latergot a judgment of $500 against the city. The Court, in holding thatthe release of the railway company did not bar the recovery againstthe city, said:"Whatever may be the rule in other States, it is well settledin this jurisdiction, in view of the foregoing statute, that theacceptance by the injured party of a certain sum from one of twojoint [really concurrent] tortfeasors in part satisfaction of hiscause of action does not release the other."32Again the Kentucky Court of Appeals said, in Louisville &Evansville Mail Co. v. Barnes' Adm'r.," (quoting an opinion of theUnited States Supreme Court), that satisfaction should be "in fullfor the injury done to him, from whatever source it may have come."The facts in the Miller case lead us to conclude that the release for$350 certainly was not intended by the releasor nor by the releaseeas full satisfaction for the entire injury.There is no problem of double recovery or unjust enrichment incases in which the parties intend only a partial satisfaction, for inlater actions the earlier recovery is credited pro tanto against theamount of the judgment or settlement." Thus that objection is re-moved, and the plaintiff is allowed to receive what he is justly en-titled to get, that is, full compensation for his entire injury, Only inthose cases where the first settlement represents full or substanialsatisfaction should later actions be barred. For instance, in the caseof Thomas' Adm'r. v. Maysville Street Railway & Transfer Co.,' 7 theplaintiff recovered two judgments, one for $5,500, and one for$5,000. He was required to elect which judgment would be satisfied."Exactly the same problem arose in Moreland's Adm'r. v. Stone,292 Ky. 521, 166 S. W. 2d 998 (1942), the full account of which ap-pears in a note, Evans, Proximate Cause, Settlement, Last ClearChance, Standard of Care in Emergencies (1943) 31 Ky. L. J. 346.See also Note, Torts-Joint Wrongdoers-Release of One as Bar to anAction Against Another (1921) 34 HARV. L. REV. 442."156 Ky. 839, 162 S. W. 91 (1914).Id. at 842, 162 S. W. at 93. The statute referred to is now Ky.R. S. 454.040, discussed later in this note.1 117 Ky. 860, 874-875, 79 S. W. 261, 264 (1904)."Lovejoy v. Murray, 70 U. S. (3 Wall.) 1, 17, 18 L. Ed. 129, 134(1865)."Standard Sanitary Mfg. Co. v. Brian's Adm'r., 224 Ky. 419, 6S. W. 2d 491 (1928); City of Louisville v. Nicholls, 158 Ky. 516, 165S. W. 660 (1914)." 136 Ky. 446, 124 S. W. 398 (1910). Also see Button v. City ofLouisville, 118 S. W. 977 (Ky. 1909).162 KENTUCKY LAW JOURNALIt is clear in that situation, as distinguished from the case at hand,that a subsequent action should not be brought against, or anotherjudgment collected from, the remaining wrongdoers. (In theThomas case, as in the Miller case, the tortfeasors were concurrent.)The arguments advanced here concerning the distinctions be-tween joint and concurrent tortfeasors and between a release, on theone hand, and satisfaction, on the other, receive additional supportfrom the Kentucky statutes and the cases which have interpretedthem. Section 454.040 of the Kentucky Revised Statutes provides:"In actions of trespass the jury may assess joint or several damagesagainst the defendants." Sellards v. Zomes interpreted this section interms of release by saying:"The liability of joint trespassers is several, and any oneor all of them may be sued for the entire wrong; consequently,since our statute of 1836, authorizing several judgments, a dis-mission or release of one or more who are sued, can not, per se,release the others."'8  (The defendants were actually joint tort-feasors and acted in concert.)Section 412.030 of Kentucky Revised Statutes, passed in 1926,provides: "Contribution among wrongdoers may be enforced wherethe wrong is a mere act of negligence and involves no moral turpi-tude." It is held that this section changes the common law rule thatno right of contribution could be enforced among joint wrongdoersin pari delicto." Where, as in Kentucky, several liability and theright of contribution among joint and concurrent wrongdoers exist,it may be stated all the more strongly that the release of either ajoint or a concurrent tortfeasor does not release others in the sameclass.It is submitted that as the proper basis for its decisions theCourt should, in the first place, distinguish between joint and con-current tortfeasors; but also, secondly, should allow later suitsagainst the remaining joint or concurrent wrongdoers unless anapproximately full satisfaction from one or more of them has beenreceived by the plaintiff. The application of sound legal principlesforces the writer to reach this result. The Miller case creates a trapfor the unwary. In the older law, the act, uninterpreted by the willbehind it, was assigned its solemn consequences. When the inten-tion of the actor came to be given prominence (about the time whenno liability without fault, save in special circumstances, began to befollowed by the courts), the inevitable consequences of accidentwere not thrown upon the actor. This doctrine that a release of one' 68 Ky. (5 Bush) 90, 91 (1868). Also see Lyons v. SoutheasternGreyhound Lines, 282 Ky. 106, 137 S. W. 2d 1107 (1940)." Louisville Railway Co. v. Louisville Taxicab & Transfer Co.,256 Ky. 827, 77 S. W. 2d 36 (1934); Consolidated Coach Corp. v.Burge, 245 Ky. 631, 54 S. W. 2d 16 (1932).STUDENT NOTESis a release of all tortfeasors, whether joint or concurrent, shouldfollow the present trend in the case of releases of a joint promisor inthe law of contracts.'E. DURWARD WELDON"The obligation of joint or of concurrent tortfeasors is somewhatanalogous to the obliration of co-obligors in the law of contracts. Firstof all, a distinction should be made between joint obligors and sev-eral obligors, just as joint and concurrent tortfeasors should be dis-tinguished. THE RESTATEMENT OF CONTRACTS (1932) Sec. 123, statesthat although a release of one joint obligor discharges the otherpromisors from their joint duty, it does not release them from theirseveral duties. This is true in Kentucky, where joint and severalduties exist.As in the case of joint and concurrent tortfeasors, the test to beapplied is not a release itself, but is full satisfaction. On this pointMr. Williston writes: "To the modern mind a release of one debtoris not necessarily a release or satisfaction of the debt itself." 2WILLISTON, A TREATISE ON THE LAW OF CONTRACTS (Rev. Ed. 1936)See. 334, p. 973. If the releasor and the releasee intend only apartial satisfaction or if a valid and full consideration is not paid,then the other obligors or obligees, as the situation may be, are notreleased after the obligation has become past due. Lewis v. Brown-ing, 223 Ky. 771, 4 S. V. 2d 734 (1928). A desirable rule for Kentuckyto follow may be found stated in section 3 of the Uniform Joint Ob-ligations Act, adopted in four states, which follows: "The value ofany consideration received by the obligee from any co-obligor is tobe credited on the obligations of all his co-obligors except those forwhom he is surety for that debt." See the summary of this sectionin 2 WILLISTON, A TREATISE ON THE LAW OF CONTRACTS (Rev. Ed.1936) Sec. 336 A, p. 985. The Act is in force (as of 1936) in Nevada,New York, Utah, and Wisconsin.

Torts--Joint and Concurrent Tortfeasors Defined--Effect of Release in Kentucky

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Torts--Joint and Concurrent Tortfeasors Defined--Effect of Release in Kentucky

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