
    Peteri v. Pennsylvania Rd. Co.
    (Decided December 22, 1931.)
    
      Messrs. Weiser & Weimer and Mr. H. B. Swartz, for plaintiff in error.
    
      
      Messrs. Burt, Kinnison, Carson & Shadrach, for defendant in error.
   Washburn, J.

Plaintiff, John Peteri, owned sis acres of land, which he devoted to truck farming.

A stream of water ran past said tract, through lands slightly higher than plaintiff’s land, and about one-fourth of a mile therefrom.

The tracks of the B. & O. Railroad Company and the tracks of the Pennsylvania Railroad Company crossed said stream, there being about 800 feet between said railroads, and the Pennsylvania Company bridge being upstream from the B. & O. Company bridge.

In bridging said stream, each railroad company maintained an abutment in said stream and permitted the channel of said stream to be partially blocked so as to obstruct the free flow of water down stream under said bridges.

In building and maintaining said bridges, and in failing to keep said channel open, each of said railroads acted independently of the other and neither had anything to do with what the other did in reference to said stream; but as a consequence of what each did, or failed to do, said stream overflowed its banks near the Pennsylvania Company bridge at the time of high water on July 5, 1929, at which time the overflow of water ran down upon plaintiff’s land, injuring and damaging the same and destroying his crops.

On August 28, 1929, plaintiff wrote the B. & O. Railroad Company, claiming damages from it because its bridge across said stream “dammed up and sent water back under tbe Pennsylvania bridge across the fields onto bis land.”

On November 16, 1929, the B. & O. Railroad Company paid plaintiff $550 and took from him a written -release, in wbicb it was recited that said sum was received “in full satisfaction, payment and discharge of all claims and demands wbicb I now have or may or can hereafter have against said Railroad Company, arising out of damage to my property near Wooster, Ohio, on or about July 5, 1929, and for all losses, damages and expenses incident thereto, and * * * I do hereby release and forever discharge tbe said Company from all said claims or demands.”

At tbe time of presenting said claim and tbe making of said settlement with tbe B. & O. Railroad Company, tbe plaintiff bad not made any claim against tbe Pennsylvania Railroad Company, although be knew that tbe Pennsylvania Railroad Company by permitting tbe channel of said stream to become obstructed contributed to cause tbe water from said stream to flow down upon and damage bis property upon said 5th day of July, and expected to make a claim for damages against tbe Pennsylvania Railroad therefor. That expectation was not communicated to tbe B. &i O. Railroad Company, and in tbe making of tbe settlement with that company tbe parties thereto bad no negotiations in reference to any possible connection of the Pennsylvania Railroad Company with said injury or tbe settlement which was made.

On December 13, 1929, plaintiff made claim against tbe Pennsylvania Railroad Company for injuries to bis land and crops caused by tbe flow of water from said stream on July 5, 1929, and brought suit on said claim on April 5, 1930.

Neither in the petition of the plaintiff nor in the answer of the Pennsylvania Railroad Company was any mention made of said settlement with the B. & O. Railroad Company, but during the cross-examination of the plaintiff he admitted the malting of a settlement with the B. & O. Railroad Company, and admitted that he signed said release, and the defendant was permitted to introduce said release in evidence while plaintiff was on the stand, notwithstanding the fact that said release was not plead as a defense to the action.

Plaintiff objected to said procedure and excepted to the rulings of the court in reference thereto.

This error of the' court was cured by the plaintiff’s failure to object or except to what was later done in the case. The record is meager, but what there is therein justifies the inference that, after the plaintiff had rested and the defendant had made a motion for a directed verdict in its favor, on the ground that said release constituted a complete defense to the action, plaintiff consented to the defendant’s withdrawal of its motion and to the court’s permitting the defendant to amend its answer by alleging said release as a defense. The defendant then again offered said release in evidence, without objection of the plaintiff. Thereafter the plaintiff offered some evidence in reference to said release and again rested, and then the motion of the defendant for a directed verdict in its favor was granted by the court.

We find no error of which plaintiff can complain concerning the manner in which said release became a part of the evidence which the court was required to consider on the motion to direct a verdict.

Was it error for the court to direct a verdict for the defendant?

Although the two railroad companies did not act in concert, they did violate a duty that each owed to the plaintiff, to wit, the duty to refrain from obstructing said stream, and while such duty was separate, and in no sense joint, it was a duty common to both companies, and under the evidence in this case the violation of that duty by each of said companies was negligence, and such negligence on the part of each company concurred in producing a single and indivisible injury, and, therefore the plaintiff could have recovered the entire damage caused by the injury from either of the companies, or from both of them if he had joined them as defendants.

He was entitled to full compensation, and if he received full compensation from one of them, he could not thereafter maintain an action against the other one.

Plaintiff stated in the contract of release which he entered into with the B. & O. Railroad Company, and pursuant to which he received $550 from said company, that he received the same “in full satisfaction, payment, and discharge of all claims and demands which I now have or may or can hereafter have against said Railroad Company, arising out of damage to my property near Wooster, Ohio, on or about July 5, 1929, and for all losses, damages and expenses incident thereto.”

The language of said release is unqualified and absolute in its terms, and it may be fairly said that a presumption arises that the amount stated represents plaintiff’s claim or estimate of the extent of his damages and that by the payment of said amount the injury was fully satisfied. Adams Express Co. v. Beckwith, 100 Ohio St., 348, 126 N. E., 300.

The release states in plain terms that it is in full satisfaction of any claim which the plaintiff had or might have against the B. & O. Railroad Company, arising out of the injury, and at that time he had a legal claim against the B. & O. Company for all the damages resulting from said injury which was caused by the concurrent negligence of both of said companies, and therefore the amount fixed by him was presumptively in full satisfaction for the injury.

The release was not a covenant not to sue, nor a covenant to cease suing, nor a covenant in partial satisfaction, but was in terms a full satisfaction.

If parol evidence was competent to contradict or vary the plain meaning of the terms used in the document which the parties made the sole embodiment of their act for certain legal purposes, which is doubted, there was no such evidence offered in this case; the mere mental reservation of the plaintiff not to release the Pennsylvania Company is of no effect, and neither is the evidence that the B. & O. Company knew that the plaintiff claimed that the Pennsylvania Company was partly responsible for the injury; there is no evidence of any negotiations or talk about anything except the total damage resulting from the injury, and nothing is shown which militates against the legal presumption arising from the language used in the contract of release.

We find nothing in the record in this case that excepts this release from the general rule that an unconditional release in full satisfaction of an injury, given by the injured party to one of several joint wrongdoers, is a release of all and bars an action against those wrongdoers not named in the release.

In several states this rule has been modified by act of Legislature, providing that a release to one joint tort-feasor shall not be a bar to a suit against a joint tort-feasor not named in the release, but that the amount paid therefor shall be regarded as a satisfaction pro tanto to the party wronged; that is the rule established by the Supreme Court, Adams Express Co. v. Beckwith, supra, where the contract of release is a covenant not to sue, or a covenant to cease suing, or a covenant in partial satisfaction, but the Supreme Court has not made that the rule where there is a full satisfaction shown by the general and unqualified terms of the contract of release. If that should be the rule, the Legislature and not this court should so declare.

Pardee, P. J., and Funk, J., concur.

Judgment affirmed.  