
    Schmidt, d. b. a. Valley Bus Co., v. Austin, Jr., et al.
    
      Negligence — Tortfeasors—Whether settlement with one defendant released another, determined on pleadings, when — Other defendant moved fojudgment notwithstanding verdict —Partial satisfaction cannot inure to other tort-feasor’s benefit, when — Error proceedings — Question of fact not considered in absence of bill of exceptions.
    
    1. Question whether settlement with one of defendants released the other must be determined on the pleadings, where such other defendant moved for judgment notwithstanding the verdict, since such motion only goes to the pleadings.
    2. Partial satisfaction for injuries received, not intended to be settlement in full and not received as or in fact as being full compensation, cannot inure to other tort-feasor whose concurrent negligence caused injury.
    3. Where question whether settlement with one of defendants; m personal injury action released other defendant involves an issue of fact, Court of Appeals cannot determine question in absence of bill of exceptions, since, in absence thereof, evidence on such issue is not before it.
    (Decided May 31, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Carl Lehmann and Mr. Albert H. Leeker, for plaintiff in error.
    
      Mr. August Bendigs, Jr., and Mr. Edward Lee Meyer, for defendant in error Austin.
    
      Messrs. Bolsinger & Benham and Mr. Joseph Heintsman, for defendant in error Union Gas & Electric Co.
   Hamilton, P. J.

This action was brought by defendant in error John Austin, Jr., against the Union Gas & Electric Company, and William H. Schmidt, doing business as the Yalley Bus Company, for damages on account of injuries received as a result of a collision, occurring at Springfield pike and Ferndale avenue, Hamilton county, Ohio.

An amended petition was filed in the case, and separate answers were filed by the Union Gas & Electric Company and William H. Schmidt, by way of general denials of negligence.

The record shows the following entry was made the morning of the trial:

“At the request of the plaintiff herein, said cause is hereby dismissed as to the Union Gas & Electric Company, one of the defendants herein.”

Thereupon, the defendant William H. Schmidt, plaintiff in error here, filed a supplemental answer, alleging that since the filing of his answer the plaintiff and defendant the Union Gas & Electric Company, on May 17, 1926, had entered into an agreement of settlement and release, whereby the defendant the Union Gas & Electric Company paid the plaintiff, and plaintiff received from the defendant the Union Gas & Electric Company, a certain sum of money in full settlement, satisfaction, and discharge of all claims arising out of matters complained of in the petition, and on the 18th day of May, 1926, an entry of dismissal of said Union Gas & Electric Company was entered of record in this cause.

To that supplemental answer, plaintiff filed a reply, admitting that he had settled his claims herein against the Union Gas & Electric Company, and had released and discharged said Union Gas & Electric Company of all claims arising out of matters complained of in the petition, and had dismissed the Union Gas & Electric Company in this cause. Following these allegations was a general denial of all other matter contained in the supplemental answer of the defendant Schmidt.

The case was permitted to go to trial against the defendant Schmidt, resulting in a verdict against Schmidt, in favor of the plaintiff, for $500. Thereupon, the defendant Schmidt moved the court to arrest judgment, and render judgment in his favor notwithstanding the verdict heretofore rendered. This motion was overruled, and judgment was entered on the verdict. From that judgment, Schmidt prosecutes error to this court.

The claim of plaintiff in error is that the answer setting up a settlement with the Union Gas & Electric Company, and the admission in the reply thereto, present a bar to the prosecution of the claim against Schmidt. Plaintiff in error further contends that the bar having been pleaded, the burden was on the plaintiff below to show that the settlement of the Union Gas & Electric Company was not a settlement in full of all claims arising ont of the matters complained of in the petition.

There is no bill of exceptions filed in the case. Conceding that the burden is on the plaintiff below to show that the settlement of the gas company was not in full of all claims arising out of matters complained of in the petition, we cannot, in the absence of a bill of exceptions, weigh this question. Moreover, the question must be determined on the pleadings, since the motion non obstante veredicto only goes to the pleadings.

The rule is that partial satisfaction for injuries received, not intended to be a settlement in full, and not received as or in fact being full compensation, cannot inure to the other tort-feasor, whose concurrent negligence caused the injury. Adams Express Co. v. Beckwith, 100 Ohio St., 348, 126 N. E., 300; City of Chicago v. Babcock, 143 Ill., 358, 32 N. E., 271; Poehl v. Cincinnati Traction Co., 20 Ohio App., 148, 151 N. E., 806.

Applying this rule to the plea in bar, and the reply thereto, we find the plea in bar by way of supplemental answer alleges that the settlement with the gas company was in full of all claims arising out of matters complained of in the petition. The plaintiff, in a reply, set up that he has settled his claim against the Union Gas & Electric Company, and has released and discharged the Union Gas & Electric Company of all claims arising out of matters complained of in the petition, but denies all other allegations contained in the supplemental answer referred to.

A fair construction of the language of the reply is that the plaintiff settled his claims against the Union Gas & Electric Company, and released and discharged it, but denies that he has released the other co-defendant Schmidt, and denies that the settlement with the gas company was in full satisfaction of the matters complained of in the petition. This makes an issue of fact on the question of the bar, and in the absence of a bill of exceptions, the evidence on this issue is not before us.

The judgment of the trial court will be affirmed.

Judgment affirmed.

Cushing and Buchav alter, JJ., concur.  