the injured person, discharges all others liable for the same harm, unless the parties to the release agreed that the release shall not discharge the others, and, if the release is embodied in a document, unless such agreement appears in the document.' Restatement, Torts, § 885(1).
Section 4 of the Uniform Joint Contribution Among Tortfeasors Act and Section 4 of the Uniform Joint Obligations Act which modify the earlier common law rule, enforce the agreement of the parties to the release regarding its scope. Statutes in Florida, Fla.Stat. § 54.28, F.S.A., and Michigan, Comp.Laws. 691.562, have abolished the common law rule without explicit reference to the effect of a release with a scope broader than the named parties thereto. A Missouri statute, Rev.Stat. § 537.060, is likewise silent. Yet a Missouri court has held that a release acknowledging that the consideration received is in full satisfaction of the releasee's injuries is effective to discharge the obligations of other joint-tortfeasors. New Amsterdam Casualty Co. v. O'Brien, 330 S.W.2d 859 (Mo.1960). Except for Mayle v. Criss, supra, neither the statutes nor the decisional law modifying the common law cited to us denies effect to the scope of the release as agreed to by the parties.
In Mayle v. Criss, supra, the Court refused to allow the defendant to benefit from the release, because he '* * * was not a party to its execution and (he) paid none of the consideration.' 169 F.Supp. 60. Plainly neither is required by the express language of the West Virginia statute.
Lastly, there is nothing inconsistent between giving effect to the clear intent of the release at bar and the language of the West Virginia statute. By its terms, the agreement is 'a release to all other persons,' the latter term reasonably including defendant. Cf. Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961).
For the reasons above-stated, we are unable to construe the governing West Virginia statute in accordance with Mayle v. Criss, supra. On the contrary, we conclude that West Virginia's legislation establishes a rule of law identical in result to Pennsylvania's.
Plaintiffs also argue that the release may not be given effect to release defendant in the absence of a judicial determination that the Inclans were liable for plaintiffs' injuries.
Although the earlier precedents are not uniform, cf. Peterson v. Wiggins, 230 Pa. 631, 633, 79 A. 767 (1911), it now appears well-settled in Pennsylvania that, '(a) release given to one not shown to be liable does not release a tortfeasor.' Union of Russian Societies of St. Michael & St. George v Koss, 348 Pa. 574, 578, 36 A.2d 433 (1944); cf. Koller v. Pennsylvania R. Co., 351 Pa. 60, 40 A.2d 89 (1944); Wilbert v. Pittsburgh Consolidation Coal Co., 385 Pa. 149, 122 A.2d 406 (1956); Mazer v. Lipshutz, 360 F.2d 275 (3 Cir. 1966).
In a number of these precedents, the terms of the release are not reported in the opinions. However, from the Court's treatment, it appears that the party procuring the release was the sole stated beneficiary. Peterson v. Wiggins, supra; Thomas v. Central R. Co. of New Jersey, 194 Pa. 511, 45 A. 344 (1900); Union of Russian Societies, etc. v. Koss, supra; Mason v. C. Lewis Lavine, Inc., 302 Pa. 472, 153 A. 754 (1931); Koller v. Pennsylvania R. Co., supra; Wilbert v. Pittsburgh Consolidation Coal Co., supra; Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956); Brown v. Pittsburgh, 409 Pa. 357, 186 A.2d 399 (1962); Jones v. Waterman S.S. Corp., 60 F.Supp. 30 (E.D.Pa.1945), rev'd 155 F.2d 992 (3 Cir. 1946); McClure v. Pennsylvania R. Co., 53 Pa.Super. 638 (1913); Rosenfeld v. Stauffer, 121 Pa.Super. 103, 182 A. 714 (1936); Masters v. Philadelphia Transportation Co., 160 Pa.Super. 178, 50 A.2d 532 (1947).
In Panichella v. Pennsylvania R. Co., 268 F.2d 72 (3 Cir. 1959), rev'g 167 F.Supp. 345 (W.D.Pa.1958), the plaintiff gave a release containing an omnibus clause similar to that invoked in the case at bar to the third-party defendant. Prior to trial, the District Court denied the defendant's motion to dismiss. Panichella v. Pennsylvania R. Co., 150 F.Supp. 79 (W.D.Pa.1957), remanded 252 F.2d 452 (3 Cir. 1958). Thereafter, the jury in response to special interrogatories found the defendant guilty of negligence and the third-party defendant free of negligence. Motions for judgment n.o.v. or a new trial were denied.
On appeal, the judgment for the plaintiff was reversed; the Court holding the release to bar the plaintiff's claim against the defendant. Although the case was deemed by both Courts to be governed by federal law, it is significant that the jury's finding that the third-party defendant was not negligent did not bar applying the release to the defendant's benefit. For federal law also recognizes the doctrine that the release of one who in fact is not liable for an injury to another does not operate to release the culpable tortfeasor. Hume v. American-West African Line, Inc., 36 F.Supp. 880 (S.D.N.Y.1941), rev'd on other grounds sub nom. Hume v. Moore-McCormack Lines, 121 F.2d 336 (2 Cir. 1941), cert. den. 314 U.S. 684, 62 S. Ct. 188, 86 L. Ed. 547 (1941).
Both Hasselrode v. Gnagey, supra, and Long v. Heinberger, 195 F.Supp. 835 (M.D.Pa.1961), concerned releases with broad language akin to that of the release at bar. Without adjudicating the liability of the named releasee, both Courts held the release effective to discharge the liability of defendants seeking exclupation under the 'other persons' clause.
Although the two lines of cases reviewed appear to conflict, we believe that they are reconcilable, although the deciding Courts have not sought to accommodate them to each other. The doctrine pertaining to the effect of a release to one who is not liable for an injury was adopted to narrow the scope of the harsh common law rule. See Anno. 73 A.L.R.2d 403, 417. We do not deem the results of the case law regarding this rule as inconsistent. Courts were perhaps justified in seeking devices, albeit somewhat artificial ones, to excuse claimants from the effect of certain releases mandated solely by operation of law. However, where, from the terms of the release, it must be apparent to the claimant that its execution forecloses further compensation from any source, the result is one voluntarily accepted by the claimant himself.
No authority has been tendered suggesting that West Virginia's law is contrary in this regard. Accordingly, in the absence of demonstrable difference between the law of the two jurisdictions, we shall apply the law of the forum. Cf. Continental Casualty Co. v. Thompson, 369 F.2d 157, 158n (9 Cir. 1966).
An appropriate order will be entered.
ORDER OF COURT
And now, to-wit, this 17 day of April, 1969, it is hereby ordered and directed that the motion of the defendant for Summary Judgment against the plaintiffs be and the same hereby is granted.