City of Tulsa v. McIntosh , 90 Okla. 50 ( 1923 )

All of the questions raised by the plaintiff in error in its petition for a rehearing have been considered by this court in the original hearing of the cause, and it does not feel called upon, from the additional arguments advanced, to reverse its holdings; but counsel for plaintiff in error have so earnestly insisted that the question decided in the first paragraph of the syllabus of the original opinion is not sustained by the authorities, we have decided to give the question further consideration.

There was quite some contention by plaintiff in error that a distinction existed between the rule as laid down in the case of Bland v. Lawyer-Cuff Company, 72 Oklahoma, 178 P. 885, and the rule appertaining to release of a joint tort-feasor after judgment has been rendered. From a search of the authorities, the court is unable to find such a valid distinction made.

In the case of Murray v. Lovejoy, 17 Fed. Cas. 1052, Clifford, Circuit Justice, in a most exhaustive discussion of the authorities and an excellent conclusion deducted therefrom, said:

"Some diversity of judicial decision still exists, even in this country; but the great weight of authority in the United States is on the side of the theory that nothing short of satisfaction transfers the title, and in that view of the question I entirely concur. * * * (citing authorities) * * * Where no satisfaction has been received, the law is clear, to the effect as stated; but the defendants contend, in the second place, that the recovery of judgment against the sheriff, and the receipt of partial satisfaction of the judgment from him, operate as a complete bar, upon the ground that the receipt of partial satisfaction is an election, on the part of the plaintiff, to seek his redress against that party. * * * A recovery of judgment against one is an election, undoubtedly, to regard the remedy as several, and such an election is final and conclusive. But the Judgment is no bar to another suit against another of the cotrespassers, as has already appeared, unless the judgment has been satisfied. * * * I am of the opinion that there is no middle ground on which a court of justice can safely stand in regard to it. When viewed in that light, it must either be held that the recovery of the judgment is a bar, or that it is no bar; and if the latter, as I hold,then nothing short of full satisfaction is an answer to a suitagainst another of the cotrespassers. * * * Regarding the question in that point of view, that it appears of record in this case that the measure of the injury sustained by the plaintiff was legally ascertained in his suit against the sheriff; that it also appears of record that $830 of that amount has been paid, I am of the opinion that the plaintiff is entitled to recover the same damages as in the suit against the sheriff, deducting the amount received in part satisfaction of that judgment."

This case was affirmed by the Supreme Court of the United States in the case of Lovejoy v. Murray, 3 Wall. 1, 18 L. Ed. 129, wherein Mr. Justice Miller, after also considering numerous authorities, said (p. 134):

"It may be said that neither does the satisfaction by his cotrespasser, or a release to his cotrespasser do this; and that is true. But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him again to recover for the same damages. But it is not easy to see how he is so affected,until he has received full satisfaction, or that which the law must consider as such.

"We are, therefore, of the opinion that nothing short of full satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser, who was not a party to the first judgment."

The reasoning in these cases is peculiarly applicable to the case at bar. Though the situation presented to the federal courts is in some respects different from this one, the distinction is rather contra to the contention of the plaintiff in error than in support of it. The cases cited by counsel in support of their petition are probably in point. This court will not deny that there are cases in support of their position. This was recognized in the former opinion in this cause. But this court does not believe that they are borne out by logic or justice.

It appears to us that judgments in tort are rendered for the purposes of compensation, and until full satisfaction or its equivalent has been obtained from every available source, the plaintiff, the injured party, may continually and successively proceed to obtain redress for his wrong.

The justice of such a position seems to this court to be beyond question and invulnerable to attack. That the party has obtained a judgment against the wrongdoers makes the argument the stronger. If the claim was unliquidated, undetermined, it might, with more reason, be argued that a release of one of the joint tort-feasors for a pecuniary satisfaction might be construed as a contractual liquidation of the claim and a full settlement. But where the claim has been liquidated by judgment, where the jury has determined the extent of the damage done, presumption and reason are clearly against any contention that an acceptance of less than the entire sum from one of the parties is an indication that the injured party desires to accept that sum as full satisfaction for the determined amount of his injury and waives the recovery of the balance as against the other wrongdoers. See United Society of Shakers v. Underwood, 11 Bush. 265, 21 Am. Rep. 214; Ellis v. Eason, 50 Wis. 138, 36 Am. Rep. 830; Gilpatrick v. Hunter, 24 Me. 18, 41 Am. Dec. 379; McCrillis v. Hawes, 38 Maine, 568; Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534; Eastman v. Grant,34 Vt. 387, and note, 92 Am. St. Rep. 875.

To sanction the doctrine the plaintiff in error asserts, to us appears to be a perversion of justice. Before this court will deny a party the redress of his wrong there would have to be a much stronger showing of the intention of that party to acquiesce therein than was apparent in this case. In fact, this court is of the opinion, as expressed heretofore, and in the cases above cited, that the purpose of actions for tort being for the redress of the injury of the plaintiff, there must be a showing of satisfaction in full, or its equivalent, by definite indication and acceptance of the injured party, before he will be denied the right to proceed upon his judgment for its determined value.

While the rule is sound that such person may have only one satisfaction for his injury, reason and justice demand that such satisfaction be full and complete, and not partial. The law gives such person the right to proceed severally against every person concerned in committing such an injury, and it would be a manifest absurdity to hold, before the claim is liquidated, such person may receive from one of the wrongdoers a part of his claim without releasing the others, but that after the claim is liquidated by the judgment of the trial court such partial settlement may not be made with such of the parties who do not care to prosecute the case to the appellate court. See Harn et al. v. Interstate Bldg. L. Co. et al.,77 Okla. 265, at page 268, 188 P. 343.

For the reason given, petition for rehearing is denied.

JOHNSON, C. J., and KANE, NICHOLSON, COCHRAN, BRANSON, HARRISON, and MASON, JJ., concur.