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In the cases which have been cited from Lushington and others, it does not appear that any difficulty arose from the inability of either of the condemned parties to pay their share of the loss. . . . The cases quoted, therefore, may have been well decided, and yet furnish no precedent for the case under consideration. . . . We think that the decree of the Circuit Court was erroneous, and that a decree ought to be made against the "Alabama" and the "Gamecock," and the respective stipulators, severally, each for one moiety of the entire damage, interest, and costs, so far as the stipulated value of said vessel shall extend; and any balance of such moiety, over and above such stipulated value of either vessel, or which the libellant shall be unable to collect or enforce, shall be paid by the other vessel or her stipulators to the extent of the stipulated value thereof beyond the moiety due from said vessel. . . . Mr. Justice CLIFFORD dissented.

Topic 3. Procedure in Actions against Joint Tortfeasors

369. MITCHELL v. TARBUTT ET ALS.

KING'S BENCH. 1794

5 T. R. 649

THIS was an action on the case for negligence, wherein the declaration stated, That whereas one J. Jones and one G. Bolland, at the time of committing the grievance thereinafter mentioned, were possessed of a certain ship called the " Albion," which was then proeceding on a voyage from Jamaica to Bristol, and that there were then on board the said ship 600 hds. of sugar belonging to the plaintiff; and that whereas the said G. Tarbutt, N. A., J. H., D. T., and J. E. (the defendants), were at the time when, &c., possessed of a ship called the "Amity Hall," whereof one G. Young was then master, then also sailing on the high seas, and the said G. Young, their servant in that behalf, then and there had the management of the said ship "Amity Hall "; yet, that the defendants, by their said servant, so negligently navigated their ship, that the said ship, by the negligence of their servant, with great force struck against the said ship of Jones and Bolland, then sailing with the plaintiff's goods on board, and so damaged the goods that they were wholly lost to the plaintiff. To this the defendants pleaded in abatement, that the grievance (if any) was committed by the defendants, and one A. Shakespear, C. Bryan, S. Orr, and J. Neuffville, jointly, and not by the defendants only. To which there was a general demurrer, and joinder.

Giles, in support of the demurrer, was stopped by the Court.

Wood, contra. If the declaration had charged a personal tort on the defendants themselves, the demurrer to the plea might have been sustained; because it might have been said to have been the separate tres

pass of each of the partners. But the injury is expressly alleged to have happened by the act of their servant, in which case one of the parties cannot be answerable more than another. And that is the distinction between Trespass and Case: in the former each person to whom the act is referable is liable, but in Case all the parties who are answerable should be sued jointly; especially where, as in the present instance, the act complained of is not done by themselves personally. . And to that difference must be referred the distinction which was taken between actions arising ex contractu and ex delicto. But that such a plea in abatement may be pleaded even to actions on the case in tort, appears from a case as far back as the Year Books 7 H. 4, 8. .

LORD KENYON, C. J. With regard to the last case cited, there certainly is a distinction in the books between cases respecting real property and personal actions: where there is any dispute about the title to land, all the parties must be brought before the Court. But upon this question it is impossible to raise a doubt. I have seen the case of. Boson v. Sandford,' in the different books in which it is reported; in all of which this doctrine is clearly established, that if the cause of action arise ex contractu, the plaintiff must sue all the contracting parties; but where it arises ex delicto, the plaintiff may sue all or any of the parties, upon each of whom individually a separate trespass attaches. This being an action ex delicto, the trespass is several; and it is immaterial whether the tort were committed by the defendant or his servant, because the rule applies "qui facit per alium, facit per se." Judgment for the plaintiff.

370. WALSH v. BISHOP

KING'S BENCH. 1632

Cro. Car. 39, 243

ERROR of a judgment in the Common Pleas, in trespass of battery against two. They plead several pleas, the one not guilty, the other a justification; whereupon several issues were joined, and the jury found both issues for the plaintiff, and assess several damages, but joint costs. Afterwards the plaintiff caused a nolle prosequi to be entered against the one, which was entered accordingly; and takes judgment against the other for the damages found against him, and the costs.

Littleton assigned error, because a nolle prosequi against the one before judgment entered is quasi a release to him, which shall enure to the other, and abate the writ for both; but if he had prayed judgment against the one, and had it, then he might enter a nolle prosequi against the other; and entry of a nolle prosequi against the one after judgment 1 Skin. 278; vide 1 Com. Dig. tit. Abatement (F. 8), S. C.; Carth. 58; Salk. 440; 3 Lev. 258. Vide also 2 Show. 446; 1 Show. 28, 101.

shall not abate the writ, nor be a release to the other; and for that was cited 14 Edw. 4, pl. 6.

But Mr. Grimston answered, that this nolle prosequi is not a release in itself, but an acknowledgment that he will not proceed as against "the one; which the plaintiff may well do in trespass, where the defendants sever themselves by pleading, and there be several verdicts against them: and so there be divers precedents where nolle prosequi's are entered as well before judgment as after; and so it is the Old Book of Entries.

The Court thereupon would advise.

This case was now argued again by Littleton, Recorder of London, for the plaintiff in the writ of error, and by Henden, Serjeant, for the defendant. The errors insisted upon were,

Secondly, that the entry of a nolle prosequi before judgment is quasi a confession of his action to be false against one, or a release to him, which being before judgment is as it were a release to both.

But the COURT, absente JONES, conceived, that . . . it is not a confession that this writ is false, nor an absolute release to the one; but it is, as it were, an agreement that he will not proceed against the one; and his acknowledgment is an absolute bar as to him, and proceeding may be against the other.

And divers precedents being shewed on both sides, that such judgments have been so entered, the judgment was affirmed. . . .

...

371. NORDHAUS v. VANDALIA RAILROAD COMPANY. (1909. 242 Ill. 166, 89 N. E. 974.) CARTWRIGHT, J.: . . . Appellee, J. W. Nordhaus, as administrator of Frank Zehak, brought this suit in the Circuit Court of St. Clair County against the Vandalia Railroad Company, appellant, and the St. Louis National Stockyards, to recover daamges for the death of said Frank Zehak, alleged to have been caused by the negligence of the defendants. The defendants severally pleaded the general issue, and upon trial there was a verdict of guilty as to both. The Court granted motions of the defendants for a new trial, and upon a second trial a verdict was again returned and finding both defendants guilty and assessing the damages at $1,500. The defendants again moved for a new trial, whereupon the plaintiff dismissed the suit as to the St. Louis National Stockyards, and the Court entered judgment against the plaintiff, in favor of that defendant, for its costs.

The next complaint is that the Court erred in permitting appellee to dismiss the suit as to the St. Louis National Stockyards and entering judgment against appellant. It is argued that the verdict was a unit, and that the Court was bound either to enter judgment upon it as such or to set it aside as a whole. A judgment against two defendants is a unit, and cannot be reversed as to one and affirmed as to the other. . . . But while the action was joint, the liability was joint and several. Several persons acting independently but causing together a single injury may be sued either jointly or severally, and the injured party may, at his election, sue any of them separately or he may sue all or any number of them jointly. If he sues all, he may, at any time before judgment, dismiss as to either or any of the defendants and proceed as to the others.

372. CLEVELAND, CINCINNATI, CHICAGO, & ST. LOUIS RAILWAY CO. v. HILLIGOSS

SUPREME COURT OF INDIANA. 1908

171 Ind. 417, 86 N. E. 485

APPEAL from Circuit Court, Madison County; J. F. MCCLURE, Judge. Action by James W. Hilligoss against the Cleveland, Cincinnati, Chicago, & St. Louis Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Lovett & Slaymaker and C. E. Cowgill, for appellant. Kittinger & Diven, for appellee.

HADLEY, J. Appellee sues to recover for injuries received in a collision between a freight-car, belonging to appellant, and an electric street-car, under his control, belonging to the Union Traction Company, on a grade crossing, in the city of Anderson, through the alleged negligence of the appellant. There are two paragraphs of complaint, each of which was held good on demurrer for insufficient facts. There are two answers, a general denial, and one affirmative, to which a demurrer for insufficient facts was sustained, and an exception reserved. Verdict for $12,500, for which, over appellant's motion for a new trial, judgment was rendered. . . . Did the Court err in sustaining appellee's demurrer to the second paragraph of answer? . . .

It is further averred in the second paragraph of answer that the collision was caused by the joint acts of said traction company, through its motorman operating said street-car, and of the railroad company through its employees in moving a cut of cars over the crossing; and that if there was negligence on the part of the defendant, as alleged by the plaintiff, in moving its cut of cars over the crossing, nevertheless the plaintiff's injuries would not have occurred had it not been for the action of the traction company's employees in negligently running said street-car on to said crossing at the same time the defendant's cut of cars was in the act of crossing the same, as aforesaid; and so, the defendant says, "that, if the collision resulted in any particular through the negligence of its employees, it was through the joint act and the joint negligence of the employees of said two companies that said collision and the plaintiff's injuries occurred." It was then averred that on December 30, 1905, the plaintiff for a valuable consideration fully released the traction company from all liability arising from said collision, which release was in writing, and in the following words and figures:

"Whereas, on the 24th day of November, 1905, James W. Hilligoss, while in the employ of the Indiana Traction Company, as conductor, was injured about the head, arms, body, and otherwise injured when freight car collided with South Meridian Street car, in an accident which occurred on the lines of said

traction company, at or near Meridian Street crossing of Big Four Railway. Now, therefore, in consideration of the agreements of said traction company herein contained to re-employ said employee for such time only as may be satisfactory to it, said James W. Hilligoss agrees to and does hereby receipt, release, and forever discharge the said traction company of and from any and all liability, claims, and demands of every kind and character that he, the said employee, ever had against the said traction company to date, and especially from all claims and demands of any nature arising out of or due to the accident aforesaid, said traction company hereby agreeing, in consideration of the foregoing, to employ said employee so long as satisfactory to it, and not otherwise. Witness the name of the parties this 30th day of Dec., 1905. James W. Hilligoss. (Seal,) Indiana Union Traction Company. (Seal.) By Ellis C. Carpenter, Claim Adjuster."

And it is alleged that the release of the traction company was a full and complete release of the defendant, and judgment is demanded accordingly.

It is an ancient and well-established rule, almost without exception in England and America, that for a single injury there can be but one recompense. When more than one unite in the commission of a wrong, each is responsible for the acts of all and for the whole damage. Also, where separate and independent acts of negligence by different persons concur in perpetrating a single injury, each is fully responsible for the trespass. Courts will not undertake to apportion the damage in such cases among the joint wrongdoers. The injured party has at his election his remedy against all or any number. Cooley on Torts (3d ed.), p. 224. He may elect to look to one only, and, if he accepts from that one a benefit or property in satisfaction and release, he can go no further. He cannot have a second satisfaction. Having had a reparation from one, who was responsible for all the damage, and released him, all others who were jointly or jointly and severally liable are also released. One satisfaction is a bar to further proceedings on the same cause of action. Fleming v. Donald, 50 Ind. 278, 19 Am. Rep. 711; Ashcraft v. Knoblock, 146 Ind. 169, 174, 45 N. E. 69. There is a clear distinction, however, recognized by the Courts between a "satisfaction" and a "release," growing out of the right of the injured party to choose whether he will seek redress against all or a less number of those jointly liable to him. On the one hand, a naked promise not to sue, and action against a part only of the joint tortfeasors, and a forgiveness of the others, or a formal release unsupported by a consideration, will in neither case operate as a release of those not favored. In other words, a release in fact may be given to a part of the joint trespassers, although no part of the damage has been paid, and those not released held liable for the whole. On the other hand, a contract, which purports to be a satisfaction and release of a wrongdoer jointly liable with others, to be effective, must clearly show that the injured party for a consideration has surrendered to the party in whose favor the contract runs all claim for recompense for and on account of the trespass com

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