Turner v. Hitchcock

Dillon, J. i. ohanse p°ejuaS?S , ", I. It is assigned as error that the court improperly refused to change the venue of the cause. Au affidavit was filed by. the plaintiff fully complying with section 2803 of the. Revision, stating that .the judge was so prejudiced, against him that he could not obtain a fair trial, and that this fact. was unknown to him at the last term of the court. The. court refused to .change the venue and the. plaintiff excepted. The appellee seeks to sustain the ruling on the ground: 1st. That a previous application on the same day had been made, and overruled and no exception taken. The record, however, shows that exception was taken. 2d. On the ground that the application states, no facts showing the,prejudice of the judge. This is true, but the statute does not require the facts to be stated. 3d. On the ground that it is a matter of discretion, and no abuse of it is shown.. In civil cases, when applied for in time, and the proper affidavit is filed, it. is not. a matter of discretion. In criminal cases it is, under the statute relating thereto, otherwise. Rev., § 4733. — 314 — Whether the distinction in this respect made by the statute between the two classes of cases is a wise one, is a matter for legislative and not judicial consideration. ' II. The trespass sued for was committed July 2d, 18641 The plaintiff was married to Almina Champlin, September 14, 1864. This action was brought October 24, 1864, and the plaintiff’s wife (the said Almina), was not made a defendant. On these facts certain instructions complained of were given. As above stated, one B. W. Johnson was made a party defendant. Just prior to the trial the plaintiff filed the following paper in the case: “ Charles E. Turner v. Charles Hitchcock et al. In Butler District Gourt. June Term, 1865. To B. W. Johnson : Sir: You are hereby notified that the plaintiff makes no personal claim against you in said cause, and relinquishes all claim for judgment against you or your property. June 9, 1865. (Signed) O. E. TURNER, by Anderson & Wright, his Attorneys.” Johnson’s deposition was taken on behalf of the plaintiff and read in evidence on the trial. He denied therein that he had any part in the trespass. The notice to Johnson, above given, was read in evidence. (Service whereof on Johnson was accepted by him in writing thereon indorsed.) In reference to these facts, the court charged the jury as follows: “ The marriage of the plaintiff to one of the parties to the trespass charged, is an accord and satisfaction to that party and to all the parties associated or connected with her in the trespass.” The plaintiff excepted. — 315 — On this point, the plaintiff asked, and the court refused, the following instruction: “If the plaintiff intermarried with one of the trespassers since the trespass, that fact alone is not such an accord and satisfaction as will discharge the other trespassers.” 2, Tubs-Ffelse.e~ Respecting the notice to Johnson, the court charged: “If the jury find from the evidence that the plaintiff has released and discharged B. W. Johnson, one of the defendants, they must find for the defendants.” Plaintiff excepted. Upon the same subject the plaintiff asked and the court refused the following instructions: “ 12th. Unless you find that the defendant, B. W. Johnson, was one of the trespassers, his release does not discharge the other defendants.” “ 13th. The plaintiff may discharge a defendant who is not a trespasser without discharging the trespassers.” It is the opinion of this court that these last two instructions ought to have been given. It was held in Wilson and Gibbs v. Reed, 3 Johns., 175, that a release to a person as a joint trespasser who is not in fact liable to the releasor, will not destroy the right of action against those who are liable. This must be so in the nature of things. Whether the' written notice to Johnson alone, without more, would be such a release as would discharge his co-trespassers (if he had been one), we need not particularly notice. It probably would if given upon or for a consideration, otherwise not. Nor do we think, as argued by the appellee, that the plaintiff, having sued Johnson as a joint trespasser, was estopped from asking the law contained in the foregoing instructions. III. Whether the plaintiff’s marriage with one of the joint trespassers destroyed his right of action against the others is a most interesting question, and if decided against him, probably fatal to his recovery. It has, therefore, received very careful consideration, the — 316 — more-particularly,as ¡the court have- not been able to agree in opinion respecting it.. No case .deciding the exact question here .presented, has been called to. pur attention by counsel,, nor. have we, in our examination,. discovered any adjudication of this precise point. : It must, ■,therefore, -be determined upon general common law .principles.- Some of these, principles bearing more or less directly.upon it, will now be stated in order the better to exhibit the grounds of the- .conclusion which I have reached. s torts■ severalao.l.,.The injury sued- for is .a .tort wholly unconnected with contract, and in such cases the well, settled and undisputed commoQ law. rule as to parties defendants is very succinctly and correctly stated by, Mr: Chitty, pigad^ 99). “if several persons jointly commit a tort, the plaintiff in general has his election to sue all or some of the parties jointly, or one of them separately; because a-tort is,.iii its nature,, a separate act of each individual.” S. P. Guille v. Swan, 19. Johns., 381; Livingston v. Bishop, 1 Id., 290; Wright v. Lathrop, 2 Ohio, 33. And. consequently the nonjoinder of part of the wrongdoers cannot be- pleaded in ■ abatement or defense. Id; 2 Hill, on Torts, 441, pl. 9, and cases. The Revision has altered .the .common law rule which -.required, all joint debtors to be sued (Rev., § 2761; Bovill v. Wood, 2 M. & S., 23; 1 Pars, on N. & B., 217), but has .made no alteration of the rule in relation to torts. -. Although .the liability is thus separate as well as joint, the, injury sued for is an entirety. .The injury.is single, though the wrongdoers may be numerous., 4_gepa_ onee.8atisfaoi tion (.infra). , 2.- .Whether separate actions can be maintained against the Several .joint tort-feasors for-the same tregpagg¡_ jg a .qUestion upon which the authorities differ. . Chitty-lays.it down .that they .cannot. 1 Plead., 79, 101. — 317 — But in this 'country- the' contrary has been 'frequently decided. Livinyston v. Bishop, 1 Johns., 290; Wright v. Lathrop, 2 Ohio, 33; Baker v. Lovett, 6 Mass., 78; Page v. Freeman, 19 Mo., 421; Knott v. Cunningham, 2 Sneed (Tenn.), 204; Ellis v. Betzer, 2 Ohio, 89; Gehee v. Shafer, 15 Texas, 198; Blaune v. Cocheron, 20 Ala., 320; and see Bird v. Randall, 3 Burr., 1345; Morton's Case, Cro. Eliz., 30. But the cases all agree' (see on this point those last'cited) that there can-be but one satisfaction, evén though there -be several verdicts-or judgments. ‘ •• 1 s_re. lease(infm). 3. It is also an undisputed principle of -the common-law, that as a general-rule'the rebase of one joint‘wrongdoer releases all. The rule and the reason for it are ^us-stated -in- a work of' high authority: “If divers commit a" trespass, though this be joint or several, at the election of him to whom the wrong is done, yet if he releases to one of them, all are discharged, because his own deed' shall 'be taken 'most strongly against himself. Also (which seems to be the better -reason) such release is a, satisfaction in law which is equal to'a satisfaction in fact. Bacon’s Abb, Release B..; see also Bronson v. Fitzhugh, 1 Hill (N. Y.), 185, where the common law authorities-are fully collected; Brown v. Marsh, 7 Verm., 320; Gilpatrick v. Hunter, 11 Shep. (Me.), 18. Not only does accord and satisfaction by one wrongdoer discharge all, but a partial'satisfaction by one-is,'on the same principle; a discharge, pro'’tanto, to 'the other; Merchants' Bank v. Curtis, 37 Barb.; Snow v. Chandler, 10 N. H., 92. “The reason- of the- rulethat'the--release-of one is the release of all,' “ seems;” sáys Bronson, J., with his accustomed-clearness'and force'(1 Hill, 185, ’supra), “tó be that' the release being taken most strongly against the releasor, is conclusive evidence that he has -been satisfied for the wrong; and after satisfaction,"although it’moved from, — 318 — only one of the tortfeasors, no foundation remains for an action against any one. A sufficient atonement having leen made for the trespass, the whole matter is at an end. It is as though the wrong had never been done." While this doctrine- is frequently limited, especially in a case of joint contracts, to technical releases, still it is always applied, both in tort and contract, where, although there has been no formal release, there has been a satisfaction as to one. This is well exemplified in Ellis v. Bitzer, above cited; see also 1 Dane Abr., 139, § 4; 2 Saunders, 47 t; Clayton v. Kynaston, 2 Salk., 573; Merchants' Bank v. Curtis, supra; Snow v. Chandler, Id., supra; Thurman v. Wilde, 3 Perry & Dav. Rep., 289; S. C., 11 Ad. & E., 453. 6.-dam-•severable: contribution 4. It is also settled that the damage is not severable or apportionable between the wrongdoers, but the act of each is the act of all. Not only so, but unlike the , , 7 case °f joint demands arising ex contractu, there jg n0 contribution among tort-feasors, who have all knowingly committed a wrong. Merryweather v. Nixon, 8 Tenn., 183 (1796); Farebrother v. Ansley, 1 Campb., 843 (1808); Wilson v. Milner, 2 Id., 453 (1810); Betts v. Gibbons, 4 Nev. & Man., 77; S. C., 2 Ad. & El., 57; Nelson v. Cook, 17 Ill., 443 (1856); 2 Greenl. Ev., 115; 1 Parsons on Cont., 37; note and cases; Jacobs v. Pollard, 10 Cush., 287. v_release by of hiwlon 5. It is also settled that a release, satisfaction or discharge may be by operation of law, as the consequence of acts done voluntarily by the plaintiff. “ When,” says Oh. Justice Robertson, in Allin v. Shadburne, 1 Dana, 68, “a legal cause of action once subsisting has been suspended by the voluntary act of the party who was entitled .to it, it is, in most cases, considered as released by law.” See also Thomas v. Thompson, 2 Johns., 470, 473, and authorities cited. — 319 — , Therefore it is that “ if a feme creditor marry her debtor, or one of two joint debtors, the debt is (at common law aside from statute), discharged by the unity of the right and liability.” Chitty on Cont., 782; Co. Litt., 264 &; 1 Bright on Hus. & W., 18 pl. 2; Bac. Abr., Release B., 1 Eng. ed., 609; 8 Co., 136; Dyer, 140, per Robertson, C. J., Allin v. Shadburne, above cited; Roberts v. Peake, 1 Salk., 325; as to contracts see in this State, Revision, § 2764. _rg_ ¿Silge (mfra). In view of these principles, and these are all which seem to bear upon the question wkether favoring or disfavoring the defense, I am of the opinion (in which the Chief Justice concurs), that the <jefeilse js a g00¿ 0ne, and that the view of the learned judge below, as embodied in the instructions, was correct. If the plaintiff had not married one of the trespassers, it is true that the present defendants could not have objected to her nonjoinder, and if made liable, could have had no redress upon, or contribution from her. As they have not been injured by the marriage, how, it may be asked, can they avail themselves of that fact, to be exonerated from their wrong? The answer is this: The injury to the plaintiff was a unit, single and entire, for which he is entitled to but oné satisfaction, “ each joint trespasser being,” says Judge Sherman, in Ellis v. Betzer, supra, “ liable to the extent of the injury done by all, it follows as a necessary consequence, that a satisfaction made by one, for his liability, operates as a satisfaction for the whole trespass, and a discharge of all concerned.” Or, in the language of Judge Bronson, above quoted, “ After satisfaction, although it moved from only one of the tort-feasors, no foundation remains for an action against any one; the whole matter is at an end; it is as though the wrong had never been done.” — 320 — “ A satisfaction, in law is equal to a satisfaction in fact.” Bac. Abr., supra.' A discharge to one wrongdoer is a discharge to all, “for,” says Mansfield, Ch. J. (Dufresne v. Hutchinson, 3 Taunt., 117), “if it were otherwise, the plaintiff might get paid by each defendant, to the whole amount of the injury sustained.” " " It will be readily seen, therefore, that the rule that a release (which is conclusive evidence that the party injured has been satisfied for the wrong) or' satisfaction from'one' wrongdoer inures to the' benefit' of the whole, is not purely technical; biit founded upon reason. A. and B. jointly do me an injury. My damage is' $100, I may sue both or each. But though I may get two judgments for $100 each, I can get but one satisfaction. I cannot be compelled to look to A. for $50 and B. for $50, for the law allows no severance of a single and indivisible injury. If A., pays me $100, and I acknowledge satisfaction, it is clear that I ought not still to recover another $100 from B. for the same wrong. If I choose to acknowledge myself satisfied for less than $100, the result must be the' same. I ought not to be permitted to recover another or a new satisfaction ; and this" I am prevented from doing by the rule of law under consideration,' and which it is unjust to characterize as being unreasonable or simply technical. It follows from the foregoing authorities and reasoning, that if the plaintiff for any consideration, one dollar or more, which he regarded as sufficient, had' acknowledged satisfaction of the injury as to' Mrs. Champlin, all of her co-wrongdoers would have been discharged, even though this was not intended, and even though a right of action against the others was reserved. This proposition is not denied. Now, as abové ‘ shown, a release or satisfaction ■ or extinguishment of a' cause of action may be' by — 321 — operation of law upon the voluntary act of the party as well as by his writing or other act. Does his subsequent marriage with one of the trespassers satisfy, discharge or extinguish his right of action against her? Of this there can be no doubt. Suppose after the marriage he had commenced suit against her alone for this trespass, would any court have allowed a recovery ? It is not pretended that he could have recovered. His action against her is therefore gone, gone by his voluntary act. It may be said that the rule in this particular case operates with unreasonable severity. But suppose the trespass had been committed alone by his present wife and one other, and that his wife had instigated and led on the other. It would seem hard in such a case that the plaintiff should omit the woman, now his wife, and recover alone against the others; and yet he could do so, if he would be entitled to recover in the present action. In other words, the number of trespassers does not affect the principle. And we cannot say that the satisfaction which the law implies^ from the marriage is not as valuable to the plaintiff, as if Mrs. Ghamplin had, instead of marrying him, paid him the full amount of his loss. It may be urged, and is in the non-concurring opinion of Mr. Justice Wright, that to hold the defendants discharged, effects a result not intended by the plaintiff when he married one of the wrongdoers. This is not material, and is not so regarded by the authorities. The rule is even applied against the intention. As an illustration of this, take the ease of Ellis v. Bitzer, 2 Ohio, 89, where, in an action of tort (trespass) against five, the plaintiff accepted a note against two for a sum of money to be paid at a future day, in satisfaction as to them, but not to be a satisfaction for the other defendants. It was, nevertheless, held that the action was discharged as to all. — 322 — The reason for this is very clearly stated in the opinion of Judge Sherman. The satisfaction discharged all as a matter of law. ' It was a legal defense, and the two who settled could not by any act or contract of theirs deprive the others of this defense. IV. There are other questions in the case of less importance, and which, as they may not again arise, we need not extend the opinion by considering. 9_forc¡ ‘mintof6" nuisance. Respecting the alleged right to abate the premises as a nuisance, we direct attention to the decision in the sister State of Massachusetts in the important case of Brown v. Perkins and wife, an abstract of which may ^ founcj in 2 Hill, on Torts, 96, note; and see State v. May, at present term.' For the error in refusing to change the venue, and to give the twelfth and thirteenth instructions asked by the plaintiff respecting the release of the man Johnson, we are unanimously of the opinion that the judgment should be reversed and the cause remanded for a new. trial. On the other question the court is equally divided, and the ruling of the District Court thereon is affirmed by operation of law. Reversed.