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SMITH v. FENNER. (05/23/60)


May 23, 1960


Appeals, Nos. 36 and 37, Jan. T., 1959, from decree of Court of Common Pleas of Northampton County, Nov. T., 1957, No. 6, in equity, and from judgment, June T., 1952, No. 133, in trespass, in cases of Herbert F. Smith v. Donald Fenner et al. and Same v. Joseph Falcone et al. Decree affirmed; judgment reversed.


Everett Kent, with him S. M. Flitter, for appellant.

J. Douglas Fackenthal, with him Edward J. Danser, and Fackenthal, Teel & McGiffert, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 399 Pa. Page 634]


We have before us an appeal in each of two distinct actions: a personal injury action and an equity action, the latter seeking to render void a release given to one of three alleged joint tortfeasors by the plaintiff in the personal injury action. The basic issue is the impact, if any, upon this release of the Uniform Contribution Among Tortfeasors Act (herein called Uniform Act) of July 19, 1951, P.L. 1130, 12 PS §§ 2082-2089.

Shortly after midnight on June 4, 1950, two automobiles - owned by Joseph Falcone and Ruth P. McBeth, respectively - were standing upon state highway 712, Upper Mount Bethel Township, Northampton County, with the bumpers of both automobiles interlocked. Herbert Smith, aiding Falcone and McBeth, was engaged in attempting to disengage the interlocked bumpers. An automobile driven by Donald Fenner then came along the highway, struck the McBeth automobile and Smith causing the latter very serious personal injuries.

Smith instituted an action for his personal injuries against Falcon and McBeth alleging they were, severally and jointly, liable for the happening of the accident. Falcone and McBeth then joined Fenner as an additional defendant on the theory that Fenner was either solely, or, jointly with them or either of them, liable to Smith, or liable over to them or either of them. Fenner, in his answers to Smith's complaint and to Falcone's and McBeth's complaint, affirmatively defended on the ground that Smith, on May 28, 1952, had

[ 399 Pa. Page 635]

    given him a written release*fn* which precluded any liability on his part not only to Smith but also to Falcone and McBeth. Falcone's and McBeth's answer to Smith's complaint averred that this release effectuated

[ 399 Pa. Page 636]

    not only a release by Smith of Fenner, but also of Falcone and McBeth.

Falcone and McBeth filed a motion for judgment on the pleadings raising two questions: (1) whether Smith's release of Fenner released Falcone and McBeth; (2) the applicability of the Uniform Act to this cause of action which arose prior to the effective date of the Act. President Judge BARTHOLD held that, while the Uniform Act was inapplicable, judgment could not be entered on the pleadings since Smith, despite the release of Fenner, could recover if he proved that Falcone and McBeth were alone liable: Smith v. Falcone et al., 85 Pa. D. & C. 463.

When the matter came for trial before Judge WOODRING and a jury, the court, while submitting the case to the jury generally, presented six specific questions for the jury's determination. The jury returned a verdict generally for $110,833.17 against all three defendants - Falcone, McBeth and Fenner - and specifically found: (a) Smith was not contributorily negligent; (b) neither Falcone nor McBeth nor Fenner was solely liable; (c) that joint negligence of Falcone and McBeth was not the legal cause of the accident; (d) that the joint negligence of Falcone, McBeth and Fenner was the legal cause of the accident. Motions for judgment n.o.v. were granted and judgment entered for Falcone, McBeth and Fenner. From the entry of such judgment an appeal was taken. That judgment was entered upon the theory that Smith's release of Fenner released Falcone and McBeth as well as Fenner.

Approximately six months after rendition of the verdict in the personal injury action, Smith instituted an equity action against Falcone, McBeth and Fenner seeking to cancel, or modify the terms of, the release. In this action, Smith's theory, as alleged, was that, since Fenner now claimed that the release exonerated

[ 399 Pa. Page 637]

    not only him but also Falcone and McBeth, Fenner "is engaged in an attempt to avoid his own release; and such conduct is a fraud in fact and in law; and, therefore, by his own act [Fenner] has made said release null and void". Preliminary objections filed in this action were upheld and the court below dismissed the complaint. From that decree an appeal has been taken.

The appeal in the personal injury action commands our initial consideration. The nub of that appeal is the efficacy of the release so far as Falcone and McBeth are concerned which, in turn, depends upon the applicability to the release of the provisions of the Uniform Act.

In passing upon the motion for judgment on the pleadings President Judge BARTHOLD well stated the status of the law in the pre-Uniform Act period: "Prior to the passage of the Uniform Act the rule was well established in Pennsylvania that a release of one joint tortfeasor operates as a release of the other joint tortfeasor. In Thompson v. Fox, 326 Pa. 209 (1937), the Supreme Court at pages 212, 213, said: 'For the same injury,... an injured party can have but one satisfaction and the receipt of such satisfaction, either as payment of a judgment recovered or consideration for a release executed by him, from a person liable for such injury, necessarily works a release of all others liable for the same injury and prevents any further proceedings against them: ... the principle which underlies the rule is that the injured person is given a legal remedy only to obtain compensation for the damage done to him, and when that compensation has been received from any of the wrongdoers, his right to further remedy is at an end.'

"See also Mason C. Lewis v. Lavine, Inc., 302 Pa. 472 (1931); Smith v. Roydhouse, Arey & Company, 244 Pa. 474

[ 399 Pa. Page 638]

(1914); Peterson v. Wiggins, 230 Pa. 631 (1911). The rule was applicable 'even though it was intended, or the release expressly stipulated, that the other wrongdoers should not thereby be released:' Union of Russian Societies of St. Michael and St. George, Inc. v. Koss, et al., 348 Pa. 574 (1949); Thompson v. Fox, supra, 213; Williams v. LeBar et al., 141 Pa. 149 (1891); Seither v. Philadelphia Traction Co., 125 Pa. 397 (1889); and it was immaterial whether the tortfeasors involved committed a joint tort or concurrent or successive torts. The rule applied where both were liable for the same damage no matter upon what theory their respective liabilities were predicated: Thompson v. Fox, supra, 213.

"It was also a well-established rule in Pennsylvania prior to the passage of the Uniform Act, that before there could be a joint tort there must be a community of fault which occasioned the accident: Cleary v. Quaker City Cab Co. et al., 285 Pa. 241 (1926); Holstein et al. v. Kroger Grocery & Baking Company et al., 348 Pa. 183 (1943); Landis, Admx. v. Conestoga Transportation Company et al., 349 Pa. 97 (1944). If there was no community of fault there was no joint tort; hence, a release of one not shown to be liable would not release a tortfeasor: Koller v. Pennsylvania Railroad Company, 351 Pa. 60, 63 (1944); Union of Russian Societies of St. Michael and St. George, Inc. v. Koss, supra; Turner v. Robbins et al., 276 Pa. 319 (1923); Masters et al. v. Philadelphia Transportation Company et al., 160 Pa. Superior Ct. 178 (1947); Tomlinson v. Goldberg, 121 Pa. Superior Ct. 125 (1936); McClure v. Pennsylvania Railroad Company, 53 Pa. Superior Ct. 638 (1913).

"The law was equally clear prior to the passage of the Uniform Act that the introduction of a release established prima facie that the alleged joint tortfeasor

[ 399 Pa. Page 639]

    was a joint tortfeasor, and that at this point the burden of going forward with the evidence shifted back to plaintiff and plaintiff then had to prove that defendant was alone negligent or else the court would find for defendant as a matter of law: Mason v. Lavine, supra; Koller v. Penna. Railroad Co., supra; Masters et al. v. P.T.C. et al., supra; Smith v. Roydhouse, Arey & Co., supra; Peterson v. Wiggins, supra."

Mr. Justice McBRIDE, speaking for our Court in Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648, said (p. 272): "It is clear that under the common law of Pennsylvania plaintiff could bring separate actions against several defendants for a joint trespass, obtain judgment against each and issue execution on the one he found most satisfactory; but once he received satisfaction, and either gave a release or satisfied the judgment of record, he could not thereafter execute or bring action against any other defendant. Fox v. Northern Liberties, 3 W. & S. 103; Seither v. Phila. Traction Co., 125 Pa. 397, 17 A. 338."

The Uniform Act drastically changed the law on this subject. Section 2(3) thereof provides: "(3) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.": Section 4 provides: "A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid": Section 5 provides: "A release by the injured person of one joint tortfeasor does not relieve him from liability to make

[ 399 Pa. Page 640]

    contribution to another tortfeasor, unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued and provides for a reduction to the extent of the pro rata share of the released tortfeasor of the injured person's damages recoverable against all the other tortfeasors".*fn1 If applicable, the provisions of this statute preclude recognition of the instant release as a bar to the action against Falcone and McBeth.

The accident, i.e., that which gave rise to Smith's cause of action, took place on June 4, 1950 - thirteen months prior to the Uniform Act's effective date - and Smith's release of Fenner was given on May 28, 1952 - eleven months after the effective date of the Act.

We agree thoroughly with Judge BARTHOLD's general discussion of the retroactive application of statutes in Smith v. Falcone, supra, (pp. 468, 469) wherein he stated: "It is a fundamental rule of statutory construction that statutes other than those affecting procedural matters must be construed prospectively, except where legislative intent that they shall act retroactively is so clear as to preclude all question as to the intention of the legislature: Farmers Nat. Bank & Trust Co. v. Berks County Real Estate Co. et al., 333 Pa. 390 (1939); Painter v. Baltimore & Ohio R.R. Co., 339 Pa. 271 (1940); Commonwealth ex rel. Greenawalt v. Greenawalt, 347 Pa. 510 (1943); Commonwealth v. Repplier Coal Co., 348 Pa. 372 (1944). This principle has been embodied in article IV, sec. 56, of the Statutory Construction Act of May 28, 1937, P.L. 1019, 46 PS § 556, which provides: 'No law shall be construed to be retroactive unless clearly and manifestly so intended by the Legislature.' It is also fundamental

[ 399 Pa. Page 641]

    that: 'Retrospective laws may be supported when they impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted': Barnesboro Borough v. Speice, 40 Pa. Superior Ct. 609, 612."

On June 4, 1950 - the date of this accident - a cause of action*fn2 arose against all three appellees. Any one or all three appellees might have been liable for all of Smith's damages. As the law stood at the time of the happening of the accident if any one of the three appellees had entered into a settlement of Smith's claim against that particular appellee and if Smith had given a release to such appellee, the other two appellees would thereby have been released from any claim by Smith. The Uniform Act changed the effect of such release, if given, but it effected no change in

[ 399 Pa. Page 642]

    the cause of action nor did it increase what could have been the liability of any one or all appellees at the time the cause of action arose. None of the appellees had any vested right to be exonerated from liability at the time of securing of a release by one or the other appellees. The change effected by the Uniform Act did not disturb any substantive right of any of appellees.*fn3 When the instant release was executed the parties knew or should have known of the provisions of the Uniform Act. It was not within the power of either Falcone or McBeth to prevent Fenner from securing or Smith tendering this release, nor did this release increase the measure of liability of either Falcone or McBeth. The Act clearly is applicable in the present situation.

In view of the conclusion reached in the appeal in the personal injury action it is unnecessary to dwell at length on the merits of the appeal in the equity action. Suffice it to say that the court below very properly upheld the preliminary objections and dismissed Smith's complaint.

The appeal in the personal injury action must be sustained and the appeal in the equity action dismissed.

The jury, by its special verdict, found that the legal cause of this accident was the joint negligence of Falcone, McBeth and Fenner. Under the provisions of the Uniform Act and the terms of the release, Smith can recover from Falcone and McBeth their joint pro rata share of the verdict, i.e., $73,888.78 and costs. Neither Falcone nor McBeth have any right of contribution

[ 399 Pa. Page 643]

    against Fenner whose liability has been settled by the release given by Smith.*fn4

In Appeal No. 36 January Term 1959 the decree is affirmed. In Appeal No. 37 January Term 1959 judgment is reversed and judgment entered on the verdict in favor of Smith and against Falcone and McBeth for $73,888.78 and in favor of Smith and against Fenner for $36,944.39.*fn5

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